For the Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024).

Christian G. Fritz

Alison LaCroix’s insightful new book, The
Interbellum Constitution, builds on an often-overlooked fact: that
Americans living before the Civil War did not know they were part of an
“antebellum” period. That oversight has contributed to a conventional narrative
of constitutional history and doctrine during the first half of the
nineteenth-century that tends to read that history and doctrine backwards
through the lens of a war that contemporaries did not know would define them.
From this perspective, American constitutional history between 1815 and 1861
(the period between the end of the War of 1812 and the start of the Civil War
and that gives rise to the title of LaCroix’s book) is often depicted as
something of an inconsequential lull between the constitutionally significant
events of the framing of the Constitution and Reconstruction in the aftermath
of the Civil War. Considered “the flyover country of constitutional history,”
(10) events during this period have often been neglected and misunderstood,
overshadowed by what preceded and followed them.[1] 

Instead, LaCroix’s book demonstrates the
important and creative developments in constitutional thought, argument and
practice during the period of the Interbellum Constitution. In doing so she not
only upends much received wisdom about the constitutional history and doctrine
of the period, but identifies the existence of multiple “federalisms” that
emerged as Americans wrestled with understanding the nature of the Union and
interpreting the constitutional framework established by the Constitution. One
great achievement of LaCroix’s book is that it reclaims the legal and political
debates, discussions, and struggles of this interbellum period as an important
part of the narrative of American constitutional thought.

LaCroix frames her study by noting that a
central contribution of the Federal Constitution to the American theory of
federalism was that some types of power belonged to the general government
(including such externally focused powers as declaring war and conducting
international affairs) while more locally directed powers (including the
traditional exercise of so-called “police” powers to regulate health, safety,
and welfare) belonged in the hands of the states. It quickly became evident
that it was difficult, if not impossible, to understand and interpret the
Constitution within the confines of a strict binary analysis of state versus
national powers. As she puts it, by 1815 “the most pressing political and legal
issues concerned situations in which federal and state power overlapped,
intermixed with a thicket of local power, and overlaid by the tendrils of
foreign affairs.” (27) For such questions, the Constitution provided “no clear
answers” and ultimately presented circumstances that gave rise to multiple “federalisms”
in an effort to resolve controversies and issues that involved more than simply
a contest between state versus national power. (27) As such, many political and
legal actors in the early nineteenth century believed themselves to be living
in “a long founding moment” during which the federal-state relationship was
taking shape and still open to debate. (9) 

Illustrative of such complexity were the
on-going struggles over the scope of congressional authority under the Commerce
Clause—be it among the States, with foreign Nations or with native Nations.
Nineteenth century commerce was inextricably connected with sea-going
transportation and the key arena for that commerce—ports—were “crucial sites at
which local, state, federal, and international authority converged and
collided.” (370) Under such circumstances a federalism limited to the binary
dynamic of state versus national power failed to capture what was actually
taking place, thus providing impetus to the emergence of multiple federalisms.
The idea of multiple federalisms offers a more apt description of the landscape
of the struggle and constitutional discourse between 1815 and 1861 that debated
not only the meaning of “commerce” under the Constitution, but also the nature
of the Union itself. 

LaCroix
identifies the idea of concurrent power and jurisdictional multiplicity at the
center of the Interbellum Constitution, thus displacing the binary theory of
constitutionalism in the conventional accounts. In addition to demonstrating a
far more complex dynamic at work than a struggle between national and state
power, LaCroix dispels another related aspect of the conventional
constitutional account. Namely, that the exercise of federal power through an
ideology of nationalism became associated with freedom and in particular with
limits on slavery while state power tended to gravitate toward the protection
of slavery and limits on freedom, and in particular the freedom of Black
people. In fact, The Interbellum Constitution demonstrates that federal
power was not inherently emancipatory nor was state power inevitably directed
toward subordination. Federal power was intrinsically “Janus-faced,” at times
employed to resist nullifiers and at other times enlisted to capture runaway
slaves. (26) Indeed, among the contributions of LaCroix’s work is the
corrective that the idea of states’ rights was necessarily in service of the
defense of slavery and white supremacy. While states’ rights often involved
slavery and white supremacy, states’ rights and state sovereignty were also
invoked to defend the rights of northern citizens to resist efforts to enforce
the Fugitive Slave laws. As LaCroix observes, “the content of states’ rights
depended on the particular state—and on the wishes of its legislature, courts,
and voters.” (347) Nothing illustrates the variable nature of interbellum
federalism better than the fact that within the span of the three years between
1859 and 1861, some states would secede in the name of states’ rights, while
other states that had defied federal authority over enforcement of the Fugitive
Slave laws would take up arms to defend the Union in the name of states’
rights. 

LaCroix is largely successful and convincing in
demonstrating “the variegated nature of constitutional thought” (164) and the
wide-ranging “landscape of constitutional possibility” (165) that characterized
the Interbellum Constitution. Yet, she accepts the assertion of some
contemporaries that there was only a binary choice to be made about the nature
of the Union that was exemplified in the famous senatorial debate between
Robert Hayne and Daniel Webster. Senator Hayne asserted that the Constitution
rested on a compact of sovereign states. In opposition, Senator Webster
contended that the Constitution’s authority came from one national people.
Calling the Constitution a “compact,” however, did not necessarily mean an
acceptance of Hayne’s position or that of later nullifiers, including essayist
Maria Henrietta Pinckney. Pinckney described the Constitution as “an agreement
between Sovereign States” (229) that was formed by “the States in their
Sovereign capacity” (231) and derided Webster for claiming the Constitution
established “a Government formed by the people, en masse, that is, by
the people collected into one nation.” (231) 

LaCroix correctly points out that both James
Madison and Thomas Jefferson used the word “compact” when they each
respectively drafted the Virginia and Kentucky Resolutions of 1798. (34) But
she erroneously assumes that such terminology necessarily implicated Hayne’s
and the later nullifiers’ understanding of the foundation of the Constitution
and that there was only one “compact theory.” (58 and 60) Madison disagreed
with both Hayne and Webster about the basis of the Constitution. For Madison,
the Constitution rested neither on sovereign states nor one national people but
instead was founded on the people of the states (importantly in the plural) “in
their highest sovereign capacity,” occupying what he later described as a
“middle ground” between Hayne’s and Webster’s positions.