Alison LaCroix’s The Interbellum Constitution: Union,
Commerce, and Slavery in the Age of Federalisms argues against teleological
accounts that see the Interbellum period as merely a precursor to Civil War or
as a rehearsal for the federal-state binary that has come to inform twenty and
twenty-first century understandings of federalism. LaCroix makes the case for
regarding the Interbellum Constitution in its own historical terms – it is not a
playing out of the Founding or the initial steps on the inevitable path to
disunion. Moreover, it is not a hiatus between moments in which real
constitutional law is being made but is itself a transformative era of American
constitutional law and politics. I wholeheartedly agree with these commitments.
In the following comments, I wish to reflect upon them in light of the rich and
enriching account of the Interbellum Constitution that LaCroix provides. My
thoughts can be grouped around two centers. The first concerns the development
of constitutional politics within LaCroix’ s account. The second concerns the
historicity of the complex narrative related here.
LaCroix does an incredible job of conjuring up an expansive
depiction of the attempts to grapple with “federalism” in the Interbellum
period. It is remarkable in its attention to locating the various attempts to
navigate the implications of federalism in tangible spaces. From the neat civic
square of the Cherokee Nation’s New Echota to Justice William Johnson Jr.’s cramped
Charleston courtroom to the Supreme Court’s dark Capitol basement, LaCroix
provides the reader with a strong sense of location that elevates and provides
meaning to the debates over national, state, municipal, and popular authority.
As the reader is transported from locale to locale and back again, the stakes
and complexity of the issues at hand are brought to life, as is the
impossibility of assessing them only in terms of elite debate.
Equally too, the book provides a sense of the historical
figures themselves traversing the society, landscape, and competing authorities
of the Interbellum Republic, and beyond it. Justice Johnson moves through
Charleston society to occupy his Broad Street courtroom, but also shuttles
between Charleston and Washington. William Wirt rides circuit in Maryland and
Virginia before holding office in the Federal City, where upon he too shuttles
between Washington and Baltimore. William Thompson, captain of the Emily,
leaves Liverpool, pausing in Perth Amboy, NJ, on his way to New York. The
complicated geographic lives of the figures discussed within the book mirrors
and brings into the relief the multilayered and mutually-contesting structures
of authority within and in response to which those actors sought to make sense
of “union” as a constitutional ordering. This attention to individuals works to
bolster the attention to space, providing for a rich and rewarding account that
resists simplification or attempts to read modern conceptions of federalism
back into the historical record.
These details give vibrancy to the contestations over the
Interbellum Constitution. But the richness of the lives and spaces discussed
here also illustrates how debates over that constitution escape the courtroom.
As much as the figures here move geographically, they also move between the
spheres of law, politics, and culture with ease and to advance interests that
cut across such realms. At an initial level, for Marshall and Wirt, this can be
seen in the relatively straight-forward professional shifts between the Cabinet
and different facets of legal practice. For Pinckney, Douglass, and Boudinot,
participation in the printed public sphere provides a mechanism for influencing
constitutional development. However, that simple characterization does not do
justice to the engagements narrated in The Interbellum Constitution. As
LaCroix shows, Wirt is both a lawyer and politician, but he is also a man of
letters, seeking to establish his reputation through Sketches of the Life
and Character of Patrick Henry (1817). Pinckney arranges for the
publication of The Quintessence of Long Speeches, Arranged as a Political
Catechism, but also navigates the use of her house and family’s legacy in
public demonstrations. Boudinot edits a national newspaper, but also seeks to
manage his own image as a representative of the Cherokee. Few of the actors
described here could be understood as containing their constitutional activity
within a single field, and indeed are working towards specific outcomes through
multiple channels. To an extent that behavior highlights the distance between
their time and our own, in which a Supreme Court staffed by professional
lawyers adjudicates the constitutional questions of the day, supported by
professors housed in law schools whose journals supply possible answers.
(Although, to be sure, the contemporary sphere of constitutional debate is not
exhausted by that of the law, and the judiciary is far from insulated from
political machinations).
It is possible to see in the complexity of the Interbellum
Constitution the emergence of a variety of modes of constitutional politics.
One framing of this Interbellum period, which LaCroix rightly resists, is as a
half-life of the Founding, in which the implications of the constitutional text
of 1787-88 are unfurled, and a predetermined constitutional meaning liquidated.
Another interpretation though is to see in this period an attempt to construct
constitutional politics as a series of practices that engage constitutional
interpretation and practice, but which distinguishes the latter from the
“normal” politics of the everyday. In place of Ackerman-esque moments of
intervention, how can a people be continually present in constitutional debate but
also “doing” a constitutional politics that is distinct from polarizing
conflicts of partisan combat? And as a consequence, is it possible to have an
energetic and robustly fought contestation over constitutional meaning without
undermining the shared constitutional project to the point of its destruction?
The complexity and interconnectedness of the period might be understood as
creative attempts to generate such a constitutional politics, required but
equally novel in a polity having established itself through “reflection and
choice.”
If so, then the historical shadows of the Interbellum
Constitution might fall in different ways. The reversion to federalism as a binary
conflict of states versus federal authority and to the Supreme Court as the
seat of constitutional interpretation represents one method of containing the
destabilizing excesses of constitutional politics. The long post-World War Two
period of American Politics, with its (relative) faith in the Court and in the
compartmentalization of constitutional politics primarily as legal activity
might not echo the period of 1815-1860 but it can be seen as a distinct
response to simpler problems. But as that limited consensus erodes in the face
of partisan polarization and the perceived delegitimization of the Court, might
we find ourselves cast anew into the storm of an unconstrained constitutional
politics. What would it (does it?) mean to see sub-State polities resist their
States and reject the authority of the Supreme Court? How do we negotiate a
shared constitutional meaning when the Court-as-adjudicator is no longer
recognized? In such a moment, the fractious landscape of the Interbellum
Constitution might provide resources and guidance for us to turn to. Johnson’s view
of a tripartite contract of the People, the States, and the United States might
offer one among many ways of rethinking our assumptions regarding
constitutional union.
In the end, perhaps the ending of the Interbellum
Constitution reflects a particular failure of constitutional politics – the
constitution as a framework for federalism remained largely unchanged by the
Civil War with the potential of the 13-15th Amendments largely muted
following 1877. But the Civil War did change one important aspect of federalism
insofar as it established the practical impossibility of disunion. The outer
limits of acceptable federalism were defined by politics in the extreme, the
“politics by other means” attributed to von Clausewitz. A turn away from reducing
1815-1860 to a States’ rights versus federal authority binary alleviates us of
the temptation to see inevitability in the Civil War, but in resisting
inevitability we are also encouraged to see that war as a stark failure of
constitutional politics to address sectional tensions and moral failings
without resort to disunion and bloodshed. And here is maybe the echo and
challenge for our own times – how can we forge a constitutional politics that
offers stability in the face of a politics that is increasingly polarized. To
aiding this project, LaCroix’s work provides us with incalculable and timely
value.
Simon Gilhooley is Associate Professor of Politics at Bard
College. You can reach him by e-mail at sgilhool@bard.edu.
