The Complexity of American Federalism

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.[2] While some scholars have depicted the debate over the nature of the Union in binary terms, careful studies have long identified and appreciated a conception located between the sovereign states’ rights position of nullifiers and Webster’s view of the Constitution as resting on a single national people.[3] 

However, LaCroix does a fine job of delineating the views of U.S. Supreme Court Justice William Johnson, Jr. who described the Constitution as a “tripartite contract among the people, the states, and the United States.” (204). Johnson’s understanding was thus outside of the binary choice advanced by Hayne and Webster and in that sense had more in common with Madison’s middle ground. Indeed, LaCroix even describes Johnson’s political perspective as a “middle position” between extreme views of Democrats and Federalists. (174)  Still, LaCroix embraces conventional accounts of the Virginia and Kentucky Resolutions and the Nullification Crisis that largely conflate interposition with nullification. Failing to appreciate the distinct role interposition played in theory and practice both before and after the 1798 Resolutions results in a lost opportunity to delineate additional tensions relevant to the multiple federalisms explored in The Interbellum Constitution.[4] Interposition defined as sounding the alarm by states identifying perceived unconstitutional acts of the federal government was—and is—a necessary resistance at the core of our democracy. It is not identical to nullification. 

Undergirding LaCroix’s revisionist account are a series of cases from the interbellum period, some well-known and others lesser known, but her take on all of them sheds new light and meaning. The cases examined include: Martin v. Hunter’s Lessee (1816), The Brig Wilson v. the United States (1820), Gibbons v. Ogden (1821) (1824), Elkison v. Deliesseline (1823), Cherokee Nation v. Georgia (1831), Worcester v. Georgia (1832), Mayor, Aldermen, and Commonality of the City of New York v. George Miln (1834) (1835) (1837), The Passenger Cases (1849), and Ableman v. Booth (1855) (1859). This litany of cases is not meant to imply that LaCroix offers a traditional doctrinal analysis of the constitutional questions and principles raised by the controversies producing these lawsuits. To say that she contextualizes the cases is a vast understatement. In addition to providing social, political, economic, and cultural context, LaCroix offers biographical and genealogical connections—occasionally providing “the web of family and law” (318). Thus, she offers a vivid sense of place and architecture within which the struggles, debates, and arguments over constitutional understandings took place. Her important focus on “producers of constitutional discourse” (9) allows her to integrate the thinking and contributions of more than just lawyers and judges, as for example, the role played by Maria Henrietta Pinckney, a prominent South Carolinian who helped shape arguments justifying Nullification, or Elias Boudinot, a newspaper editor and citizen of the Cherokee Nation who advocated for the rights of his Nation, or Frederick Douglass, the famed abolitionist orator. Combined with a narrative approach, The Interbellum Constitution provides a richly textured and detailed portrait of time and place within which legal ideas and principles were explored and debated as part of an ongoing political and constitutional discourse set in motion by the Federal Constitution. LaCroix’s book thus deals not only with constitutional arguments and principles elaborated in judicial opinions, but how American constitutionalism was shaped and experienced by people other than elite leaders of the bench and bar. 

The result of examining these cases in the context of “the full argumentative panorama” (16) along with the wide array of producers of constitutional discourse who actively contributed to the constitutional debates during the period between 1815 and 1861 reveals a starkly different picture of American federalism from the traditional binary state-federal model. LaCroix’s careful and capacious analysis of the Interbellum Constitution fully warrants her conclusion that in “both theory and fact, the constitutional structure of the period was characterized by jurisdictional multiplicity, concurrent power, an almost-obsessive focus on commerce, and surprising valences of both federal and local authority.” (434). The Interbellum Constitution magnificently complicates our understanding of American federalism and reframes the history of the American constitutional tradition before the Civil War.

Christian G. Fritz is Professor of Law Emeritus at the University of New Mexico School of Law. You can reach him by e-mail at fritz@law.unm.edu.