Creativity, Constraint and the Long Founding Moment

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

Aaron Hall

The Interbellum Constitution is a story of arguing over how to operate the Union. Between the 1810s and 1850s, lawyers and judges described and prescribed the practical workings of American federalism, especially around the fulcrum of commerce. Their arguments were often not winning ones—some lost at the U.S. Supreme Court; others were spurned by state authorities and elected branches even when adopted by the federal judiciary; and many faded in the long run of constitutional law. But Allison LaCroix listens to them carefully, and urges that we should do the same, because jurists in their own time understood each argument as a plausible account of the practical interface between governments, peoples and goods in motion. These interpretations were meaning-making, engaged in what LaCroix characterizes as “chart[ing] the maps of the American constitutional sea” (5) in a kind of federalism-focused Age of Discovery.[1] Through cases and collisions that drew out multiple visions of governing authority distributed among multiple jurisdictions, LaCroix writes an engrossing chronicle in which thinking and debating, not clear resolutions are the point.  Yet the book truly is a story. Grounding alternative formulations of federalism in the professional and familial lives of interbellum figures and the social context in which disputes arose, LaCroix writes about constitutional interpretation as the intellectual history of individuals, communities and generations. Together, all the “federalisms, plural” (3) that they espoused give content to the Interbellum Constitution – or perhaps an Interbellum Constitution. I say “an” rather that “the” to suggest what I think is a simple but important feature of the book. LaCroix’s title newly and powerfully names a period of constitutional history for study, and she makes the case for its significance as a site of constitutional change and innovation. The book does not exhaust the title; its account of federalism debates is not the only history that can be told, not the only version of an Interbellum Constitution that is possible. When others research the Interbellum Constitution, and we may see another one.

I have been writing a history of the rise of an authoritative “Founding” in American constitutional life during the century after ratification. For this reason, I am especially interested in LaCroix’s wonderful book and will take this opportunity to discuss her overarching concept of a “long founding moment” that threads through The Interbellum Constitution.  LaCroix argues that Americans of the period “believed themselves to be living in… a ‘long founding moment.’” (9) What did this entail? Tension. These Americans belonged to an “uneasy generation” (27) who “exhibited an adolescent mix of bravado and anxiety.” (8) On one hand, they felt obliged to be “faithful heirs” who showed due “reverence for the political religion of the nation’s founding charters” (9); on the other hand, they “were not mere passengers” (4) but producers of creative, innovative arguments. It is this other hand, creativity within the structure of the Constitution, that LaCroix seeks to recover and elaborate.

Her formulation of a long founding moment is a generative background framework for thinking about the specific arguments that unfold in studies of “the practice of federalism” (20) and federalism in practice. It frames the relationship between citizens and Constitution as a “dialogue with their Revolutionary forbears” (207) in terms that suggest both meaningful constraint and channeled capacity. While the long founding moment is cast broadly to sweep in all Americans, it seems to have special application to jurists mediating the space between the Constitution and constitutional questions in court. Indeed, I want to know more about that application. Given the book’s focus on plausible legal arguments, how did the structure of a long founding moment, of constraint and capacity, shape the bounds of argumentative plausibility? With reference to this moment, did rejected arguments reflect judgments that particular claims violated those constraints (i.e. were too creative with respect to the founding)?

I also wonder about the scope of this long founding moment along multiple axes. How well does this concept describe constitutional culture over time (the 1810s versus the 1850s); across subject matters of dispute that differ in political salience (commerce power versus the Fugitive Slave Law); and among different communities (lawyer-to-lawyer versus popular partisan or sectional political mobilization)? In terms of chronology, fundamental changes in the participants and fabric of constitutional culture over the interbellum period suggest that a long founding moment, which presumably includes the pre-interbellum years between 1791 and 1815, could not be coextensive with that whole period. From my research, I would agree that a long founding moment (defined by the absence of discrete, closed founding) endured until roughly 1820, but that a different order arose thereafter with a relationship to the Founding defined by profound constraint. This question of chronology intersects with the question of subject matter, as courtroom norms permitting creative possibilities in construing the federal commerce power might have endured but departed from quite different norms associated with debating slavery under the Constitution. In turn, this subject matter distinction intersects with the matter of community and forum. Except for chapters that engage with the Nullification Crisis and the mixed legal and popular constitutional proceedings surrounding Ableman v. Booth, LaCroix’s actors and voices speak about, to or as courts. These South Carolina and Wisconsin events exemplify highly mobilized popular constitutional politics (and in the latter case show a court parroting popular constitutional ideas). Although certainly articulating federalism claims, the vehement constitutional declamation of these events and the broader category to which they belong demonstrate a meaningfully different relationship to the founding: it is one of mobilization and justification through defense of ascribed original commitments and understandings rather than one worked out among jurists in the comparative seclusion of a courtroom. All of this is to say that LaCroix’s long founding moment is an invaluable concept for recognizing and analyzing constitutional discourse during the early nineteenth century. But there is more to be done on understanding its specific force and the scope of its explanatory viability.

By its terms, a long founding moment might seem to contemplate an ongoing creation as opposed to an event that belongs fully to the past. But LaCroix’s concept, I think, implicitly takes an interesting intermediate position. As I understand it, her long founding moment recognizes that a founding had already occurred, but that interbellum Americans occupied a special creative role and relationship with its own liminal temporality, one that would expire once that long moment closed.

For this blog post, I thought it could be interesting to dive a bit deeper into this concept by revisiting one primary source from her book.  An early highlight of The Interbellum Constitution comes in LaCroix’s immensely rich rendition of a set of arguments over judicial federalism advanced in 1814 at the Virginia Supreme Court in Hunter v. Martin, Devisee of Fairfax (which produced the decision reversed in Martin v. Hunter’s Lessee). Here William Wirt, the interbellum lawyer par excellence and the long founding moment personified, tangled with a bench and bar of soon-to-be Old Republicans aggrandizing state judicial authority. Wirt represented Phillip Martin, the devisee whose interests were injured under the Virginia court’s view of governing law but protected by the Supreme Court’s determination. LaCroix explains how Wirt invoked records from the Virginia ratification convention as well as The Federalist in contending against unreviewable state judicial power. In this move, the book sees: “a fight to claim the authority of the founders. Even as Mr. Madison’s war raged around them, the lawyers and judges in Richmond and Washington battled to claim the imprimatur of founding father Madison’s writings.” (55) As part of this fight, LaCroix notes that when Judge Spence Roane rejected Wirt’s position, his opinion cited the state sovereignty-promoting Report of 1800 (which his parenthetical citation notes is “commonly called Madison’s Report”) by the Virginia legislature, showing that “Post-founding Madison also had a place in the debate.” (55) That analysis makes immediate sense. Yet I think the concept of a long founding moment invites us to take a second look. The account seems right because Wirt’s act seems familiar; that is what such an act would mean and do in a fully post-founding world in which the identity and authority of materials and Madison had coalesced. But 1814 was not 1832 or 1859. Was there an “authority of the founders” to claim? Was Madison a “founding father” at this juncture?

A long founding moment suggests that we should be wary of our own sense of the familiar on these matters. Inside the Virginia courtroom, we can hear how claiming the founding in 1814 was an uncertain and ultimately unsuccessful enterprise. First, it was unusual at the time for Wirt’s documentary resources to be introduced in arguments, and I suspect that his concurrent work authoring a biography of Patrick Henry may help explain the convention citations. This Henry biography features very long recapitulations and excerpts of disputes within the convention.[2] Second, Madison’s identity in Virginia in 1814 was not the “father of the Constitution” but rather that of a powerful Virginian politician, personally well-known to the bench, an eminent Republican constitutional theorist, and the beleaguered president of the national government. Wirt was indeed trying to make whatever local persuasive authority Madison and those materials possessed work for him in Richmond. Crucially, however, in the arguments of his opposing counsel and in Roane’s invocation of the Report, we can see that premises about authority in constitutional arguments may not hold within a long founding moment—and that there was no commanding “authority of the founders” to claim in the way that would become familiar later in the interbellum period.

When Martin’s attorneys relied on the Federalist to explain the Constitution, Hunter’s counsel, William Williams, refused to fight for the same conceptual ground, or to adopt a posture of deference towards the text. He attacked its authority in full:

“I deny the authority of that book. It was written by three persons to induce the people to yield to the general government certain powers: and their expositions of the constitution were merely their individual opinions…. These newspaper essays were party writings intended to induce a sentiment favourable to the ideas of the writers…. Again these letters were written prior to the adoption of the constitution, and laid down constructions of it which many considered as dangerous to the sovereignty of the states, and tending to introduce a consolidated government.”[3]

Attacking the Federalist with such language was a choice. If doing so was a transgressive rejection of firmly established, venerated authority, then Williams would likely not have done it, or the Virginia Supreme Court would have made its displeasure at that norm-breaking known. Instead, the court agreed with Williams and chastised Wirt’s presumptuousness, as LaCroix notes. The court also refused to share the conceptual ground that Wirt may have offered. Reasoning from structure, principle and their own memories and sense of both ratification and post-ratification constitutional debates, the court exhibited no appetite for the authority of founding fathers to properly understand the Constitution. When Roane invoked the Virginia legislature’s Report of 1800, that newer text’s authority was stronger than that of The Federalist. This strength came not from Madison’s personal authorship, but because this more recent text reflected understandings honed through years of bitter debate and was affirmed by the state’s lawmakers. It was their understanding, their authority. In later interbellum decades, many Americans could incorporate the Report of 1800 into a single, revered founding (a long founding!); but in 1814, that was hardly a plausible argument for the Virginia Supreme Court.

These dynamics show how unfamiliar a place LaCroix’s long founding moment could be. In its courtrooms, authority was far less settled and the founding itself was not clearly delineated. The Interbellum Constitution, in its specific account of federalisms and in its broader intellectual architecture, invites scholars to think about constitutionalism in the early nineteenth-century on its own terms. In this regard, it is generative like the constitutional era that it illuminates.

Aaron Hall is Assistant Professor of History at the University of Minnesota, Twin Cities. You can reach him by e-mail at arhall@umn.edu.