For the Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024).
David S. Schwartz
The lawyer’s view of constitutional history is reminiscent of the Manhattanite’s mental map of the United States, as rendered in Saul Steinberg’s iconic New Yorker cover: 9th and 10th Avenues, the Hudson River, New Jersey, and then a patch of largely open space dotted with “Chicago,” “Texas,” “Los Angeles,” and a couple of mountains before the “Pacific Ocean.” For lawyers and law professors, constitutional history goes like this: the Constitutional Convention, Ratification, the Bill of Rights, the Reconstruction Amendments, the New Deal, Brown v. Board of Education, and Today. The rest of constitutional history consists of small patches of largely open space dotted with Marbury, McCulloch v. Maryland, Dred Scott, Plessy, and Lochner, with those latter three items serving as foils for the Reconstruction Amendments, the New Deal, and Brown.
One of those patches of open space is what Professor Alison LaCroix dubs the “interbellum” period, the years 1815 to 1861, marked out by the end of the War of 1812 and the start of the Civil War. In her outstanding new book, The Interbellum Constitution, LaCroix demolishes the notion that the 1815-1861 period was, in Bruce Ackerman’s words (as quoted by LaCroix), “a period of ‘normal politics’” that lacked the “great ideological struggles between competing parties” necessary to produce constitutional ferment. Although historians would have been quite surprised to hear that the period somehow lacked “great ideological struggles,” LaCroix’s corrective is essential for constitutional scholarship, which has long been distorted by the classroom imperative to skip over huge swaths of constitutional history—not only LaCroix’s “interbellum” period, but also the post-ratification, post-Reconstruction, and Progressive eras—in order to manage the page counts of casebooks and Con Law syllabi. Those practical pedagogical decisions have produced regrettable habits of thought that allow serious scholars like Ackerman to dismiss decades of important constitutional history with a flick of the hand.
The Interbellum Constitution admirably bridges the gap between law and history scholarship, merging rigorous historical methods and dynamic and fascinating narrative telling, with sophisticated legal interpretation. LaCroix shows that the period of her study was full of important, developing ideas about federalism and overlapping jurisdiction, stemming primarily from controversies over commerce. She does so by providing rich background context for a handful of important cases of the era, and detailed biographies of several key figures—particularly, under-studied people such as William Wirt and Maria Pinckney—whose ideas and advocacy played influential roles in important constitutional controversies. The cases include iconic ones, such as Martin v. Hunter’s Lessee and Gibbons v. Ogden, as well as important but far lesser-known ones, such as The Brig Wilson and Elkison v. Deleisseline. LaCroix adds depth to the history of the cases and ideas she analyzes by tracing personal, family, and locational networks, and digging into the records of the oral arguments, as well as case files and original primary documents—for example, uncovering a twist in John Marshall’s circuit opinion in The Brig Wilson by examining interlineations in his handwritten draft opinion. (p. 105)
No book is perfect, of course, and The Interbellum Constitution, though masterly, encounters difficulties in its periodization. The critique that follows, it should be understood, is relatively minor, going only to the first of the five claims LaCroix seeks to advance in the book (p. 10): that the “interbellum” period was a “distinct” period of debate about federalism. In my view, the lacuna in the standard constitutional scholars’ vision does not begin in 1815, because that vision also accords precious little attention to constitutional developments after the ratification of the Bill of Rights in 1791. This raises the question: is there a reason to make 1815 a significant inflection point apart from a historian’s practical and totally understandable need to choose a workable starting point for a research project? Periodization often has an arbitrary quality. 1815 is a useful editorial convenience in historical writing, probably because it roughly tracks academic subspecialties; it was the break point in the Oxford History of the United States series, between Gordon Wood’s Empire of Liberty (1789-1815) and Daniel Walker Howe’s What Hath God Wrought (1815-1848). But this break point seems more defensible when it comes to chronological narrative histories like those two than it does in thematic ones, like The Interbellum Constitution. Howe claimed that 1815 made sense as an inflection point because, he suggested, the War of 1812 produced a new wave of nationalism that spurred many of the events that followed, particularly the United States’ westward expansion. But LaCroix does not really attempt to justify the book’s 1815 starting point beyond pointing to the War of 1812. It might have been well to simply admit that 1815 was arbitrary—histories have to start somewhere—but instead LaCroix implicitly doubles down on the choice by insisting on the term “interbellum” in place of the conventional “antebellum.”
I’ve had qualms about the “interbellum” coinage since LaCroix first introduced it in her excellent 2015 law review article, The Interbellum Constitution: Federalism in the Long Founding Moment. To begin with, “interbellum” implies a time of peace between two wars. But even if one holds aside the ongoing hostilities with Indian tribes, there is not only the Mexican War (1845-48), but also the fact that the Mexican War was arguably much more momentous for federalism than the War of 1812. So it is at minimum a misnomer to talk about an “interbellum” period that itself includes a major bellum.
More substantively, the “interbellum” framing unduly treats wars as presumptive constitutional inflection points. LaCroix’s title necessarily implies that constitutional history was meaningfully different in the pre- and post-war periods, and different because of the war. That is far from clear in the case of the War of 1812, and the suggestion lends itself to the same sort of cognitive error that LaCroix perceptively and correctly assigns to legal scholars whose constitutional history emphasizes watershed events while ignoring “normal” interim periods. Whatever might be said for the claim of a non-legal historian like Howe to treat the War of 1812 as an inflection point, LaCroix doesn’t make a case for it as a matter of constitutional history—and there is a strong case against it.
Many, if not all, of the significant constitutional controversies of the antebellum period, including those covered by LaCroix, predated the War of 1812 and flowed through it. The war itself was the efflorescence of pre-existing federalism problems: a war undertaken with only sectional support, relying heavily on state-supplied regiments, and nearly causing the secession of New England. The sectional divide over the war was a direct outgrowth of conflicting interests in commerce, the subject with which LaCroix is primarily concerned. The aftermath of the war did not produce a new constitutionalism so much as a reconsideration of the old, as President Madison reversed his former opposition to Alexander Hamilton’s 1791 Bank of the United States. Although these issues are not canvassed in The Interbellum Constitution, we see a similar pattern in those that are. Did the “Migration and Importation” Clause refer to free people or only slaves, and was the movement of people—slave or free—“commerce” within the meaning of the Commerce Clause (Chapters 1, 2, 4, and 8)? Did the Commerce Clause give exclusive authority over interstate and Indian commerce, or did states have concurrent authority (Chapters 3, 6, and 7)? Did the Constitution create a national government by “the people of the United States,” or a confederative “compact” of the states (Passim, but especially chapters 1 and 5)?
LaCroix is an outstanding historian, and fully accounts for the pre-1815 history of the matters she addresses. The framers were fully aware of the fraught question surrounding the Migration and Importation Clause, and kicked that can down the road by employing ambiguous language; Congress in 1803 acted on the powers implicit in this clause with ambiguous legislation. Compact theory, as LaCroix forthrightly observes, grew out of the Virginia and Kentucky Resolutions of 1798 and by 1816 formed “the orthodox Republican view of the Constitution.” (p. 60) Martin v. Hunter’s Lessee (1816), which LaCroix presents in rich and illuminating detail in Chapter 1, involved questions that had been central to the Constitutional Convention: the need for federal courts with ultimate authority to enforce treaties in general, and, in particular, the 1783 Treaty of Paris that concluded the Revolutionary War—the treaty on which the Martin case ultimately turned.
All this is in The Interbellum Constitution, and shows—as LaCroix perceptively states—that “the long shadow of the founding era lay over the thoughts and actions of interbellum Americans.” (p. 48). And as of 1815, “the functional structure of American federalism was still unsettled.” (p. 49). So why the “interbellum” framing? The traditional term “antebellum” does not have these same objections. Its end point, the Civil War, is quite defensible: both the scale of that conflict and its constitutional momentousness dwarf all the wars since the Revolution. LaCroix undoubtedly disliked the term “antebellum” for her book due to its vague starting point. But the striking fact that pre-1815 federalism controversies persisted through most of the antebellum era makes that vagueness a virtue.
Perhaps this is all a semantic quibble. But I think the questionable “interbellum” framing gives rise to a slight tendency in the book to overstate the “creativity” (a word LaCroix applies a lot) of post-1815 constitutional disputants and to portray constitutional ideas as abstractions, somewhat autonomous from the historical and economic forces and power dynamics that produce constitutional disputes. LaCroix is quite persuasive in her claim that there was significant intellectual ferment about federalism in this period. But in frequently stressing the “creative” and “generative” nature of “interbellum” ideas about federalism, LaCroix not only downplays the extent to which these ideas were derivative of pre-1815 debates; she also suggests that the ideas were the product of intellectual ferments, primarily among judges and lawyers, who used creative “legal discourse to shape reality” (p. 16) rather than the other way around. Thus, LaCroix seeks “the outer boundaries” of plausible constitutional argument “not only [in] the justices’ decisions but also in the lawyers’ arguments.” (p. 12) But constitutional law is fundamentally an arrangement of political power, and a complete understanding of the genesis of constitutional arguments is difficult, if not impossible, without attending to the power dynamics they serve. For example, on its own merits, compact theory is an absurd and undermining interpretation of the Constitution; yet it persisted in the antebellum era, not because of the “creative” intellectual powers of those who propounded it, but due to the power of the state-level moguls and slavery proponents who stood to gain from it.
The book’s discussion of Gibbons offers a useful example. In LaCroix’s telling, Gibbons was a jurisdictional dispute between the federal and state governments in which the Court decided “the abstract question of the scope of the Commerce Clause” by distilling “ideas that were circulating… and [that] collided with each other as they were aired by lawyers and judges[.]” (pp. 121-22) But the larger constitutional questions underlying Gibbons were hardly abstract “ideas.” Though unmentioned in the book, the justices had to confront the very practical problem of whether navigable waterways, the nation’s interstate highways in the 1820s, could be allowed to be carved up and segmented by state-issued monopolies. Nor does the book really attempt to link Gibbons with the contested federal power to pursue “internal improvements” (infrastructure) projects, whose constitutionality was potentially on the table in that litigation. Although LaCroix presents the various cases’ “gritty fact patterns involving money, trade, ships, merchandise, and—sometimes—people, both free and enslaved” (87; see also 17), the book at times overlooks the broader “gritty” realities that produced these particular case facts.
On the whole, these criticisms raise comparatively minor imperfections in what is overall a superb book. Perhaps they reflect nothing more than a peevish preference on my part that the term “interbellum” not become a standard way of talking about the first half of the nineteenth century. My quibbles aside, The Interbellum Constitution is a formidable work of legal history and an essential read for any scholar who wants to fully understand the development of U.S. constitutional ideas. The book has much to teach us and rewards a careful reading.
David S. Schwartz is Frederick W. & Vi Miller Professor of Law and Vilas Distinguished Achievement Professor, University of Wisconsin Law School, and Editor-in-Chief, Journal of American Constitutional History. You can reach him by e-mail at dsschwartz@wisc.edu.
English (United States) ·