Most of what lawyers learn about the “Interbellum Constitution”–i.e., constitutional law between the end of the War of 1812 and the beginning of the Civil War—comes from the handful of major Supreme Court decisions of that era that law schools still teach as part of the required first-year curriculum. McCulloch v. Maryland for the supremacy of the federal government vis-à-vis the states; Gibbons v. Ogden for Congress’s power over interstate commerce; Dred Scott (and maybe Prigg v. Pennsylvania) for slavery; Martin v. Hunter’s Lessee for the relations between state and federal courts; and maybe, if a professor is ambitious enough, more complicated fare like the Passenger Cases. Through modern eyes, we view the great constitutional debates of the era largely (if not exclusively) as those that played out in the pages of the relevant Supreme Court reports—as compiled by Henry Wheaton (1816–27), Richard Peters (1828–42), or Benjamin Chew Howard (1843–60).
But in her magisterial new history of the constitutional debates of the era, legal historian Alison LaCroix expands her (and our) horizons beyond the modest contributions of the Supreme Court of the era and to the broader debates that played out on the ground—including, critically, in the justices’ rulings and opinions while riding circuit. On everything from the nature of the union to the scope of Congress’s power under the Commerce Clause to the status of Native American tribes to the intractable moral, political, and legal debates over slavery, our understanding of the debate over “federalism” during the interbellum period has been unhelpfully binary—pitching everything in stark “federal” vs. “state” terms. LaCroix’s book documents the reality of a “federalism of fractals” that was far more nuanced and jurisdictionally interdependent than the most famous Supreme Court decisions might suggest—where states and the federal government were not the only players and where the contest for power was more complicated than a constant antipodean tug-of-war between state capitals and Washington.
One of the many striking features of LaCroix’s wide-ranging narrative (who knew that William Wirt was such a key player!) is the role that justices played in this story while they were away from Washington—in various rulings they handed down while “riding circuit,” i.e., comprising (alongside the local district judge) the circuit court for each of the federal district courts of the era. Although the fact that the justices rode circuit until 1911 (and regularly sat as circuit judges until after the Civil War) is well known today, we devote little attention to the justices’ decisionmaking output qua circuit judges.
LaCroix’s book drives home the extent to which that neglect comes at the expense of our understanding not just of some of the key players, but of the context in which more famous moments unfolded. It introduces contemporary readers to Chief Justice Marshall’s massively important 1820 ruling on circuit in The Brig Wilson—which helped to both presage and shape the arguments about Congress’s commerce power that the full Court would take up four years later in Gibbons. It reminds us of the better known (but still obscure) circuit-level rulings by Justice Bushrod Washington in Corfield v. Coryell, and by Justice Story in La Jeune Eugenie, both of which had significant downstream effects on key legal doctrines.
One of the already compelling book’s more-compelling anecdotes highlights Justice William Johnson’s handling of Elkison v. Deliesseline, a fraught early-1820s dispute over the validity of South Carolina’s “Negro Seaman Act,” which required the incarceration of all Black men who arrived in the state as part of a ship’s crew for the duration of their vessel’s stay in port. When the ship left, the captain could either pay the costs of his crewmember’s detention to bring him back aboard, or the crewman would be sold into slavery.
Johnson, a slaveholding South Carolinian appointed to the Court in 1804 by President Thomas Jefferson, ruled that the act was unconstitutional—inconsistent with both the federal Constitution (perhaps the first ever application of what we now call the “Dormant Commerce Clause”) and an 1815 treaty between the United States and Great Britain (whose flag flew over the ship at issue in Elkison), which had guaranteed “reciprocal liberty of commerce.” Johnson also concluded, however, that he lacked the power to free Elkison—something Congress indirectly remedied in 1833 when, in response to the Nullification Crisis, it authorized federal courts, for the first time, to direct writs of habeas corpus to state jailers.
The Elkison episode is but one of many vignettes LaCroix recounts across the book’s nine chapters. But it illustrates LaCroix’s careful, archive-driven reconstruction of the public debates of the time—which drives home not just the shifting alliances under which the “Interbellum Constitution” was fleshed out (including how next-door neighbors Georgia and South Carolina parted ways on key federalism issues shortly after Elkison), but the depth of the constitutional arguments that took place far from the Supreme Court’s dark and musty courtroom on the first floor of the still-incomplete U.S. Capitol.
The Interbellum Constitution is first-rate legal history and constitutional law scholarship. But it also reminds those of us whose work focuses on the courts that there was plenty of significant decisionmaking by lower courts—whether staffed by Supreme Court justices or otherwise—prior to the Civil War. Many of those rulings aren’t reported in the notoriously incomplete Federal Cases reporter. But that shows why proper legal history, as opposed to law-office history, remains critical to our contemporary constitutional understandings. At a time when courts are relying ever more often on “history and tradition,” LaCroix’s book is a powerful and persuasive reminder that ascertaining our history and tradition takes a lot more work than dusting off old volumes of case reports—and that, when properly unearthed, that history has a habit of making simple debates look far more complex.
