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University of Chicago Law Review

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899

Abstract

In her latest book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms,1 Professor Alison LaCroix suggests that the period between 1815 and 1861 in the United States has too often been treated as “the flyover country of constitutional history.”2 What was happening on the constitutional front during those years, sandwiched between what is often seen as the true end of the American Revolutionary era—the War of 1812, when the United States fought its last battles with its former colonial overseer, Great Britain3—and the transformative days of the U.S. Civil War when the U.S. Constitution was remade, is what LaCroix means by the phrase “The Interbellum Constitution.”4 She asserts that this time should be the subject of greater consideration because this “period . . . witnessed a transformation in American constitutional law and politics.”5 Contrary to “the conventional story,” it was a “foundational era of both constitutional crisis and self-conscious creativity.”6

To make her case, LaCroix offers “five central claims about the nature of the Interbellum Constitution,”7 and the book considers each in detail. The first claim carves out the years of 1815 to 1861 as a “distinct period” that was not, as she asserts it is too often treated, merely a “gap between the constitutional landmarks of the founding era and the Civil War.”8 In her second claim she identifies the “two conventional stories about constitutional debates in the period between 1815 and 1861” and says that they are both essentially wrong.9 One story depicts a “binary federalism” that “frames all disputes about the structure of the American union as contests about the power of the general government versus the states.”10 The second story associates the assertion of federal power with liberty, as the federal government was seen as an enemy, or a potential enemy, of slavery.11 At the same time, “[s]tate power [ ] in its many incarnations (states’ rights, state sovereignty, localism) is seen as tending toward—perhaps even necessarily tied to—protections for slavery and limits on freedom, in particular the freedom of Black people.”12

There is little wonder that historians and other observers of this period, writing in the latter half of the twentieth century, would characterize the difference between the federal and state governments in this fashion. Historians are always writing in a particular social context and are almost inevitably influenced by the events taking place around them. It is important, therefore, that the twentieth century was the era of the modern Civil Rights Movement. Many of the people of the Southern states—politicians and ordinary citizens—were recalcitrant in the face of federal laws and court decisions mandating the end of de jure segregation in the South and other measures taken to ensure that African Americans had equal rights before the law in the United States.13 They made arguments based upon a version of federalism that tracked many of the arguments made during the period of which LaCroix writes. It is significant that the point of controversy often centered on the question of race: What was to be done with the African Americans who, in the early nineteenth century and the twentieth century, were outside the polity if they were enslaved, and treated as mere denizens rather than true citizens of the Republic if they were free?

LaCroix’s third claim is that the era of the Interbellum Constitution was one in which the idea of “concurrent power” flourished, and indeed it was “uniquely central to” the constitutional discourse of the time.14 This separates this period from both “the founding era” and “the post-Civil War regime.”15 Her fourth claim expands upon her take on concurrent power, saying that the concept was very much a part of the discourse on the federal commerce power during this period of the nineteenth century.16 Indeed, commerce was “[t]he primary terrain on which interbellum struggles over federalism unfolded.”17

LaCroix’s final claim is about the nature of the American Union during this moment in history. Americans today may see the Union as an entity that existed in a recognizable form from the very start. But it should not surprise that the specific contours of the concept of union were not set in stone in the immediate decades after the Union was formed. There were, LaCroix notes, “many and varied meanings of the concept of ‘union’ in this period.”18 For this reason, it is a mistake to base historical understandings on a single definition of the term. “The emotional, moral, and constitutional heft of the phrase ‘the Union’ was, like so much else in this period, contested and fragile. For many interbellum observers, the Union was simply inadequate.”19

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