The Law and Politics of Exclusion in Alison L. LaCroix’s The Interbellum Constitution

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

Jane Manners

When I was in my second year of graduate school, my advisor lent me Willard Hurst’s copy of the second volume of James Bradley Thayer’s 1895 constitutional law casebook, which Hurst had given my advisor when they were colleagues at the University of Wisconsin Law School.  Thayer devoted a large section of the volume – 408 of 2434 pages – to the antebellum commerce clause, reprinting sizeable excerpts of majority and concurring opinions from Gibbons v. Ogden, Brown v Maryland, Willson v. Blackbird Creek, Mayor of New York v Miln, The Passenger Cases, The License Cases, and Cooley v. Wardens of Philadelphia. In a footnote, Thayer reminded his turn-of-the-century readers of the political context:

The subject of the regulation of interstate commerce, as involving the admission or exclusion of persons, was complicated with that of slavery. During the second quarter of this century, a bitter controversy went on over the right of the slave States to exclude free negroes. South Carolina passed laws, from the year 1820 on, for imprisoning free colored seamen arriving in Northern and foreign vessels, and for compelling the ship-masters to pay the expense of their detention. Under these enactments, that State defied the authority of the United States judiciary and the protests of other States.…[In] a long opinion by Mr. Justice Johnson of the Supreme Court of the United States, given at the Circuit, in Charlestown, in August, 1823, in the case of Elkison v Deliesseline, in which the action of South Carolina was declared unconstitutional, in the most emphatic terms. But this sort of legislation continued, and was repeated in stronger form….[1]

In the margins, Hurst penciled his notes. Next to Chief Justice Taney’s assertion in The License Cases that “disease, pestilence and pauperism are not subjects of commerce,” he observed: “But disease and pauperism don’t come in by themselves – come in via persons or things too. There really isn’t a difference of kind here; fact is, must be judgment of policy as to what measures Court will say are all right as basis for refusing goods’ admittance.” To a budding legal realist, the Court’s policy choices were obvious. Pestlilence, pauperism, people: the commerce clause cases of the first half of the nineteenth century were, to a large extent, an ongoing battle over what and who states could keep out.

I was reminded of Thayer’s casebook and Hurst’s gloss as I read Alison L. LaCroix’s luminous reframing of these formative decades in the Court’s federalism jurisprudence. As LaCroix points out, casebooks today acknowledge none of the nuance so evident in Thayer’s casebook, not to mention Hurst’s notes. Instead, most hop from 1824’s Gibbons v. Ogden, in which the Court held that New York’s exclusive ferry franchise conflicted with a congressional licensing statute, to 1851’s Cooley v Board of Wardens of Philadelphia. Modern readers are left to erroneously infer that Cooley’s holding—that the commerce power was concurrently held by the federal government and the states, except for direct conflicts or narrow zones of federal exclusivity—had been a foregone conclusion. LaCroix seeks to recover the interpretive ferment of the decades between the end of the War of 1812 and the start of the Civil War, which she evocatively calls the “flyover country” of constitutional law, thereby exposing the hollowness of conventional periodizations and normative frames. She succeeds brilliantly in unpacking the local, national, and international political background and complex legal maneuvering behind several of the cases Thayer highlighted as well as others—Ableman v Booth, Cherokee Nation v. Georgia, Worcester v. Georgia—that are missing from the conventional federalism canon.

But LaCroix succeeds in something else, too: reminding 21st century readers of the extent to which the commerce clause battles of this era were about the connection between sovereignty and exclusion. Starting with 1820’s The Brig Wilson, a circuit court opinion in which Chief Justice Marshall first held that a federal statute drew on Congress’s authority over interstate commerce, LaCroix shows that the power to exclude was a central focus of the federalism struggle. The Brig Wilson considered whether a privateer had forfeited his vessel by allowing “three persons of colour” from his crew to disembark in Norfolk, VA. An 1803 federal law imposed that sanction on the master of any vessel that imported a “negro, mulatto, or other person of colour” into a port where state law barred such importation. In Virginia, a 1793 statute barred the in-migration of “free Negroes and mulattoes” to keep insurrectionary ideas out of the state during the Haitian Revolution. Exemplifying Marshall’s talent for constitutional avoidance for which he is known, the Chief Justice declined to evaluate the state ban’s constitutionality, reasoning instead that the statutory reference to “free negroes and mulattoes” did not extend to “other persons of colour,” who were admissible. Because the trial court’s evidence showed only that the sailors in The Brig Wilson were “people of colour,” not that they were “negroes or mulattos,” the Virginia statute did not bar their entry, which meant that federal law didn’t either: the brig was not forfeit.

But bigger questions about a state’s power to bar entry remained. Could a state exclude free Blacks? Native Americans? Immigrants? Slaves? Slave traders? Slave catchers? Such prohibitions, LaCroix’s account makes clear, could pose a dire threat to domestic and international relations. Consider the discussions that took place in Washington, DC in the spring of 1824, the year the Court decided Gibbons. In January, as the lawyers for and against the steamboat franchise were preparing their arguments, a delegation of Cherokee leaders arrived in Washington seeking the Monroe administration’s help as Georgia called for the violent seizure of Cherokee land located within the state’s territorial borders. On February 7th, attorney general William Wirt argued in Gibbons that commerce was not merely “traffic” but “intercourse,” an elevated form of constitutive exchange that was necessary to tie the nation together and stave off civil war. (Then as now, the word “intercourse” produced back-of-the-room titters: after Wirt presented his argument, LaCroix tells us, a North Carolinian observer mused that he should “soon expect to learn that our fornication laws are unconstitutional.”) On March 2nd, the Court issued its opinion in Gibbons, embracing Wirt’s definition of commerce as an elevated form of “intercourse” and leaving open the possibility of exclusive federal power over commerce. On March 30th, President Monroe told Congress that while any effort to remove the Cherokee by force would be “unjust,” the Cherokees’ presence within Georgia’s borders was unsustainable and their voluntary removal was the best solution. Days later, the British chargé d’affaires in Washington met with Secretary of State John Quincy Adams to demand that the Monroe administration take action against South Carolina, which continued to jail free Black sailors for the duration of their vessel’s stay in port, even though eight months earlier Supreme Court Justice William Johnson had held the requirement unconstitutional in Elkison v. Deliesseline. To these justices, lawyers, delegates, and bureaucrats, the international implications of federalism disputes were not simply theoretical. They were the stuff of daily life.

In justifying their right to exclude, state advocates leaned heavily on an idea that was at least as old as the medieval walled city: that the right to define and protect against outsiders is fundamental to sovereignty. “[A] state cannot lawfully commit suicide,” insisted the lawyer defending South Carolina’s right to jail free Black sailors in Elkison. The state was “not bound,” he explained, “to wait until her citizens behold their habitations in flames and are driven to seek a refuge by the glare of the conflagration” (188). The conflagration he alluded to was the one that white Charlestonians believed they had narrowly avoided a year earlier, when town authorities uncovered an alleged plot among the town’s enslaved population, led by freedman Denmark Vesey, to overthrow its white inhabitants. In the wake of the discovery, South Carolina’s legislature had passed what became known as the Seamen Act in an effort to confine the dangerous insurrectionary ideas they believed were being spread by free Black sailors. A state’s sovereign right to protect itself against contagion was a favorite trope throughout LaCroix’s period, as states sought to contain both contagious disease and contagious ideas of revolution.

LaCroix reminds us that Southern states were not the only entities advancing the right of self-protection through exclusion. When Elias Boudinot, the politically savvy Cherokee writer and legal thinker, urged his fellow Cherokee to resist the “moral pestilence” of state laws that would “destroy our nation” (324), he too was drawing on the sovereign right to exclude contagious threats, underscoring the Cherokees’ status as a nation in the process. The sovereign right to exclude morally repugnant laws was also at the heart of 1859’s Ableman v. Booth. The case began in 1854, when a Wisconsin Supreme Court justice issued a writ of habeas corpus to a federal prisoner charged with violating the Fugitive Slave Act of 1850, holding the Act unconstitutional and writing that “the last hope of free representative federative government rests with the States” (412). In Ableman, a unanimous U.S. Supreme Court reasoned that, if allowed to stand, the Wisconsin courts’ issuance of a habeas writ to a federal prisoner would mean that the Wisconsin courts’ “supervising and controlling power would embrace the whole criminal code of the United States” (415), inverting the constitutional relationship between federal and state courts. But the Wisconsin court disregarded the Court’s order. Throughout the interbellum period, LaCroix shows, legal actors across the political spectrum saw state rights and even nullification as a compelling legal argument and useful strategic tool.

“What we have today is not your father’s federalism,” the legal scholar Heather Gerken wrote in 2012, arguing that the political success of people of color and progressive policy at the local level called for a reconsideration of the assumption that, as Gerken colorfully put it, “federalism is just a code word for letting racists be racist.”[2] Gone were the days when states’ rights enabled local oppression shielded from national oversight. In 2012, she explained, federalism made possible progressive experimentation at the state and local level, while federal law protected minorities from the local abuses that had previously characterized federalism.

Twelve years later, with Republican party leaders calling for a national abortion ban, the resurrection of the Comstock Act, and the end of birthright citizenship, federalism’s political valence looks quite different. Yet, as LaCroix’s book so powerfully reminds us, the politics of federalism have always been dynamic. And then as now, the question often comes down to what, and who, states can exclude: medical abortion pills, immigrants, ICE officers. As we grapple with the urgent political and legal questions of our moment, the lessons contained in LaCroix’s field-shaping account of a formative era in federalism’s history are well worth absorbing.

Jane Manners is an assistant professor at the Temple Beasley School of Law. You can reach her by e-mail at jane.manners@temple.edu.