For the Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024).
Connor M. Ewing
Introduction
In his recent book, The Federal Contract, Stephen Tierney makes the provocative observation that “the origins of the Constitution of the United States are viewed today as ‘federal’ only through a retrospective prism” (9). At least as an intellectual conceptualization, he continues, federalism developed “not by reference to what the American constitution was intended to be, but by what it became” (ibid.).
It is no coincidence that Tierney proceeds to cite Alison LaCroix’s 2011 book, The Ideological Origins of American Federalism, in support of this point. There she argues that the emergence of American federalism “should be understood primarily as an ideological development,” centred on the “belief that multiple independent levels of government could legitimately exist within a single polity, and that such an arrangement was not a defect to be lamented but a virtue to be celebrated” (6). On LaCroix’s telling, the creation of the Constitution was marked by the embrace of “a normative vision of multilayered government” (10) predicated on a subject-matter division of political authority.
With The Interbellum Constitution, LaCroix moves from the origins of the federal idea to the consequences of its constitutionalization. She persuasively shows that, in the decades between the conclusion of the War of 1812 and the onset of the Civil War, federalism was not an it but a they. There was not a single operative definition—much less consensus theory—of American union, but an evolving set of interpretations, frames, and resolutions oriented toward negotiating the tensions posed by jurisdictional multiplicity and claims of concurrent power. “Interbellum constitutional law,” LaCroix writes, “was understood by contemporaries to be an ongoing process of writing, speaking, and interpreting” (10).
Among much else, The Interbellum Constitution confirms LaCroix’s place among the best writers in legal history. Far from an incidental feature of the book, the deft prose styling and confident, yet unobtrusive, authorial voice are integral features of one of the book’s central lessons. As a result of the jurisdictional multiplicity characteristic of American politics, the construction of constitutional meaning and negotiation of attendant constitutional conflicts occurred not only—or even principally—in the chambers of Congress or the opinions of courts; they also occurred in the infinitely varied circumstances of political, social, and economic life structured by the Constitution.
The particularities of these circumstances are thus essential to a full account of how (what would come to be called) federalism shaped—and was, in turn, shaped by—the relations, interests, and exigencies of American politics between 1815 and 1861. So in addition to adding colour and verve to the narrative, the thicket of filial and matrimonial relations that characterized South Carolina’s planter elite is revealed as the essential context in which jurisdictional multiplicity was navigated and its meaning elucidated. Similarly, the web of civic associations, newspapers, and philanthropists engaged with the Cherokee Nation’s efforts to protect the integrity of both law and land proves to be a key feature of the discursive landscape in which Elias Boudinot (among others) articulated a vision of Native sovereignty within the context of American union.
Telling such complex stories is certainly not without its risks. Reading the early chapters of The Interbellum Constitution, one might be tempted to wonder how much these individual episodes can really tell us about the character of American federalism as such during this period. (This temptation may, admittedly, increase with one’s professional proximity to the social sciences.) But with each passing chapter it becomes clear that the details of early episodes often reemerge later, variously facilitating or constraining other actors’ attempts to vindicate the authority claims of the government on whose behalf they speak.
In this respect, The Interbellum Constitution is a richly layered work that repays close attention, as well as the occasional detour back to previous chapters to recall the nuances of an important-again argument or precedent. Here, too, one finds a deep connection between form and substance. The layered narrative mirrors the layered development of American federalism in the decades between the Constitution’s creation and the Civil War, as episodes of jurisdictional friction reverberated both geographically and temporally. The book, like the constitutional order it depicts, is a palimpsest, with later developments contending with what came before even as they supplant, refract, and rework that inheritance.
Against the Mythology of Prolepsis
The Interbellum Constitution is bookended by allusions to the danger of what Quentin Skinner called “the mythology of prolepsis.” In his seminal 1969 article “Meaning and Understanding in the History of Ideas,” Skinner wrote that this “confusion” is characterized by “the conflation of the necessary asymmetry between the significance an observer may justifiably claim to find in a given statement or other action and the meaning of that action itself” (23). On this understanding, proleptic interpretation entails imbuing historical events, actions, utterances, and texts with meaning or significance only supplied by later developments. According to this “teleological form of explanation,” Skinner writes, “the action has to await the future to await its meaning” (24).
For LaCroix, the future development that distorts interpretations of early constitutional history is the federal-state binary—the conventional constitutional framework in which American federalism consists of “the federal government versus the states” in a “zero-sum relationship” (6). While this binary would emerge after the Civil War, constitutional discourse in the first half of the nineteenth century was characterized by “nonbinary federalism—a view of the federal-state relationship as one of concurrence and negotiation, rather than as a stark, all-or-nothing contest between federal and state power” (3; cf. esp. 158, 249-250, 335, and 345-348).
LaCroix argues that retrojecting the federal-state binary onto early American history causes us to misunderstand both the debates of the period and the broader dynamics of constitutional change. The price of this proleptic interpretation is the ability to perceive what she terms the Interbellum Constitution, “a set of widely shared legal and political principles, combined with a thoroughgoing commitment to investing meaning in those principles through debate” (3).
Attune to the perils of prolepsis, LaCroix enables us to see interbellum politics on their own terms, as a series of events that needn’t await the future to be intelligible. In distinct ways, each of the substantive chapters demonstrates the insufficiency of the conventional account, documenting how multiple entities were jostling for authority, how different analytical frames were deployed to render the constitutional order both coherent and stable, and how concurrent power was the watchword of northern and southern states alike.
Perhaps most significantly in this regard, LaCroix demonstrates that nullification and states’ rights were hardly the exclusive province of southern states bent on protecting the racial domination and hierarchy undergirding their “peculiar institution.” Pace William Riker—who (in)famously argued that, “if in the United States one disapproves of racism, one should disapprove of federalism”—LaCroix reveals how state power was wielded in service of abolition and Black freedom. As she shows particularly clearly in her accounts of The Brig Wilson and the Passenger Cases (ch. 2) and the response of Wisconsin state courts to federal enforcement of the 1850 Fugitive Slave Act (ch. 9), “the valence of federal power in the interbellum period did not necessarily run toward freedom, and the embrace of state authority did not always serve racial subordination” (11; cf. 378).
For this reason, LaCroix’s book, along with Sean Beienburg’s Progressive States’ Rights, presents a serious objection to arguments that associate federal power with the liberal—and states’ rights with the illiberal—tradition in American political development. More broadly, The Interbellum Constitution is a forceful reminder that those engaging in historical analysis must be wary of confusing their own perspectives for those of the actors and episodes they seek to understand.
A Proleptic Constitution?
As an historical-interpretive matter, LaCroix (and Skinner) are undoubtedly correct. Grafting chronologically subsequent meaning, categories, or concepts onto prior phenomena is hardly a reliable method for understanding what specific historical developments meant in the moment or what historical actors meant to do with particular speech acts.
But prolepsis is a multifaceted phenomenon, one that has been deployed in settings ranging from rhetoric and literary analysis to psychology and memory studies. Perhaps, then, there is a second way in which prolepsis might be relevant to the story LaCroix tells, one that while consistent with her account of multiple federalisms in the interbellum period also raises questions about her precise conception of constitutional union and its relationship with subsequent development. Because The Interbellum Constitution is grounded on an account of the Constitution forged at the founding, the nature of the regime is directly relevant to the analysis LaCroix presents.
Rather than being a feature of historical interpretation, prolepsis might characterize the constitutional order itself. To flesh out this second form of prolepsis, and to briefly summarize a longer argument, perhaps the system of government inaugurated by the Constitution anticipates future political development. Far from establishing a comprehensive or legally determinate relationship between state and nation, the Constitution can be understood to frame the processes (themselves subject to interpretation and revision) through which the constitutive powers, institutions, and relationships of American union would be given meaning. On this understanding, changing authority relations are at the heart of the constitutional project. This stands in stark contrast to more legalistic and deterministic accounts of the Constitution, such as the one offered by the late Antonin Scalia when he claimed that the “whole purpose” of a constitution “is to prevent change.”
This is, after all, how both the advocates and the opponents of the Constitution presented their arguments during ratification. The central Anti-Federalist charge against the Constitution—that it involved a consolidation of the states into a single, national government—was not directed toward what the Constitution would do immediately upon ratification, but what it would become over time. As the writer Brutus put it, presenting an understanding expressed by virtually every one of the Constitution’s most important critics, “[A]lthough the government reported by the convention does not go to a perfect and entire consolidation, yet it approaches so near to it, that it must, if executed, certainly and infallibly terminate in it.”
In contrast, for many Federalists the developmental tendencies of the Constitution were evidence of both its prospects for success and its fidelity to republican principles. In the most systematic such account, Publius depicted how national authority could expand as a result of stable and effective administration. After arguing that (1) the new national government would be administered at least as well as—and likely much better than—the state governments and (2) that “confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration,” he observed that attempts by either level of government “to enlarge its sphere of jurisdiction at the expense of the other…should be supposed to depend on the sentiments and sanction of their common constituents.” Mediated by popular dispositions toward state and federal governance, governmental performance would be the determinant of the distribution of authority. While national authority was meaningfully limited by the contingent configuration of administrative capacity and popular sentiment at the founding, those were precisely the things that, according to many Federalists, the Constitution was directed toward transforming.
One needn’t adopt the ungainly jargon of “prolepsis” to grasp the basic point here. Fundamental differences between the states precluded the codification of a comprehensive federal-state relationship at the founding, leaving the elaboration of that relationship to the political processes the Constitution would structure. Over time, the relationships among the constitutive governments would reflect the accumulated consequences of iterated elaborations. For Federalists, this was a virtue of the proposed Constitution; for Anti-Federalists, the principal ground of opposition. Aspects of such an interpretation feature in scholarly accounts as disparate as those offered by Jacob Levy and Patrick Deneen. Moreover, it is consistent with the founding generation’s markedly dynamic and fluid conception of constitutionalism, as described in Jonathan Gienapp’s recent work.
Like the chapters of The Interbellum Constitution, these founding accounts of constitutional development are rooted in the character of the union established by the Constitution. But here LaCroix’s account of the relationship between state and nation seems importantly more specific. The Interbellum Constitution, like Ideological Origins, emphasizes a “subject-matter vision of sovereignty” (251) centred on “treaties, money, war, post offices” (8 and 250; see also 27). This, however, risks mistaking powers for authority—the means of governance for its end. While domains of authority can be inferred from powers that are granted and prohibited, nowhere in the Constitution is the subject-matter of national authority exhaustively set forth.
The line dividing national from state authority would seem to better track the distinction between general and particular (or local) interests. But again, that line was not codified textually; rather its elucidation was left to future politics, with the institutional and procedural design of those politics occupying both the text of the Constitution and the attention of the delegates at the Constitutional Convention. It is precisely the lack of clarity concerning policy authority in areas like commerce that, as The Interbellum Constitution explains, facilitated Virginia’s and South Carolina’s efforts to regulate the movement of non-whites and Massachusetts’ and New York’s attempts to tax alien migrants.
One is left wondering whether the account of constitutional union LaCroix offers might not entail more determinacy than the Constitution can bear, or, alternatively, if developments between the founding and the book’s starting point in 1815 somehow fixed what the Constitution had left in flux.
Assessing Constitutional Development
Between the introduction and epilogue, each chapter of The Interbellum Constitution ends with just enough analysis to make the reader pause before delving into the next, pondering what to make of the episode that was just relayed. Despite some intriguing suggestions, we are never really presented with LaCroix’s full assessment of the arguments advanced by the characters she brings to life. I suspect this is attributable to the method called for by her overarching purpose, and thus can hardly be considered a shortcoming of the book.
But at the same time, reconciling the ideological origins of the federal idea with the consequences of its constitutionalization requires that we confront the relationship between constitutional foundations and constitutional development. All the more so if those origins anticipated subsequent development. What, then, is the relationship between the Constitution of the founding and the Interbellum Constitution? More broadly, how should we assess the episodes of constitutional meaning-making that LaCroix so effectively documents?
One option is that the politics of the interbellum period are evidence of what Jeffrey Tulis and Nicole Mellow call a “constitutional logic,” a developmental trajectory induced (though not determined) by the conjunction of the Constitution’s institutional architecture and normative commitments. This, however, does not seem to map well onto LaCroix’s account, which entails far more contingency, greater diversity, and less predictability than such a logic could accommodate. Indeed, because of these features The Interbellum Constitution can be read to pose important objections to the constitutional logic account.
A second option is that American union is a constitutional disharmony in the sense described by Gary Jacobsohn—a site and source of contestation over the commitments, coherence, and continuity of the constitutional order. Thus understood, the relationship between state and nation is a contested feature of American constitutional identity that both structures and provokes conflict over the regime’s defining commitments and the correspondence of those commitments to the underlying values of constitutionalism. Unlike the constitutional logic account, the constitutional disharmony interpretation would arguably leave a broader scope for constitutional developments in tension with founding commitments or designs.
There are, of course, other options. I suspect that LaCroix’s account of the relationship between constitutional foundations and subsequent development cannot be easily captured by either of these but rather stakes out distinctive ground that would benefit from further elaboration.
A final point raised by the book concerns the significance of the various forms of constitutional discourse over the period LaCroix investigates. Specifically, I wonder about the relationship between constitutional interpretations offered by judges and those advanced by advocates like William Wirt, engaged citizens like Maria Henrietta Pinckney, and activists like Sherman Booth.
To illustrate this point, we can look to McCulloch v. Maryland, a case that, while (understandably) appearing only fleetingly in The Interbellum Constitution, occasioned a reflection that is highly relevant to the developments the book addresses. Writing to Spencer Roane in September 1819, James Madison reflected on John Marshall’s opinion for a unanimous Court:
It appears to me as it does to you, that the occasion did not call for the general & abstract doctrine interwoven with the decision on the particular case. I have always supposed that the meaning of a law, and for a like reason, of a Constitution, so far as it depends on Judicial interpretation, was to result from a course of particular decisions, and not these from a previous and abstract comment on the subject. The example in this instance tends to reverse the rule and forego the illustration to be derived from a series of cases actually occurring for adjudication.
The question here concerns the relationship between “general & abstract doctrine” and the constitutional meaning(s) of federalism. Madison seems to be flagging an important change in American constitutional politics, one concerning the method by and manner in which constitutional meaning is articulated. This development may also be relevant to the emergence of a conception of federalism marked more by line-drawing than continued negotiation, as well as the advent of new understandings of the relationship between the Constitution, constitutional meaning, and the (federal) judiciary. Whether or not any of this was Marshall’s intention is a further question worth pondering.
Conclusion
Brooding over The Interbellum Constitution is a development that lies just beyond the book’s temporal horizon: the federal-state binary, which we are told emerges only after the Civil War. LaCroix also indicates that the episodes chronicled in The Interbellum Constitution contribute to that emergence. The question that naturally follows is how American federalism eventually came to be what we moderns mistake it for always having been. Answering this question may require combining the different analytical approaches deployed in the two books LaCroix has written. The Interbellum Constitution makes a strong case that she is uniquely suited to that challenge.
Connor M. Ewing is Assistant Professor of Political Science and Fellow of Trinity College at the University of Toronto. He can be contacted at connor.ewing@utoronto.ca.
English (United States) ·