Union, Commerce, and Slavery in the U.S. Constitution from the War of 1812 to the Civil War

FAIN: FEL-258145-18

Alison L. LaCroix
University of Chicago (Chicago, IL 60637-5418)

A book-length study of Constitutional debates during the period 1815 to 1861.

“The Interbellum Constitution” argues that the decades between the War of 1812 and the Civil War were a dynamic era characterized by both constitutional crisis and conviction. My project shows that the struggle over the interbellum Constitution was the source of some of the most fundamental values, and the most troubling problems, of U.S. law and politics. Public debate in the period was dominated by the issues of commerce and concurrent power, both of which were framed but left unresolved by the Constitution. Commerce became a source of national identity, a zone of regional conflict, and a touchstone of legal and political debate. Contemporaries were also consumed by fights over concurrent power – areas in which federal and state authority overlapped, including slavery, taxation, and public works projects. Drawing on popular and legal sources, my account demonstrates that the period generated a new set of constitutional ideas that bridged the founding and Reconstruction periods.

Associated Products

From the Bank to the Harbors: Federalism's Middle Ground in the Early Nineteenth Century (Conference Paper/Presentation)
Title: From the Bank to the Harbors: Federalism's Middle Ground in the Early Nineteenth Century
Author: Alison L. LaCroix
Abstract: This paper argues for a reconceptualization of early-nineteenthcentury federalism that augments the familiar federal-state dichotomy with a third zone: concurrent authority. As commentators struggled to make sense of the nation’s expanding markets, transportation networks, and territory, they developed a view of concurrent power as a zone of governmental authority analytically distinct from national or state power. It was a domain of overlapping, authority requiring constant negotiation. In a line of cases concerning people moving on waterways, the Court explicitly undertook to draw a line between federal and state regulation of commerce: Gibbons v. Ogden (1824, steamboats); Mayor of New York v. Miln (1837, passenger lists); the Passenger Cases (1849, passenger taxes) and Cooley v. Board of Wardens (1852, piloting fees).
Date: 10/26/18
Conference Name: American Society for Legal History

The Brig, the Steamboat, and the Immense Mass of State Laws (Conference Paper/Presentation)
Title: The Brig, the Steamboat, and the Immense Mass of State Laws
Author: Alison L. LaCroix
Abstract: Early-nineteenth-century Americans were consumed by conflicts over concurrent power – areas in which the Constitution had left the line between federal and state authority unclear, and in which states had a colorable claim to autonomous power. Many of these lawyers and statecrafters took a much more favorable view of concurrent power than modern scholars have acknowledged. This paper argues for a reconceptualization of early-nineteenth-century federalism that augments the familiar federal-state dichotomy with a third zone: concurrent authority. As commentators struggled to make sense of the nation’s expanding markets, transportation networks, and territory, they developed a view of concurrent power as a zone of governmental authority analytically distinct from national or state power. It was a domain of overlapping, authority requiring constant negotiation. In a line of cases that all concerned people moving on waterways, the Court explicitly undertook to draw a line between federal and state regulation of commerce: Gibbons v. Ogden (1824, steamboats); Mayor of New York v. Miln (1837, passenger lists); the Passenger Cases (1849, passenger taxes) and Cooley v. Board of Wardens (1852, piloting fees).
Date: 11/8/18
Conference Name: University of Wisconsin Discussion Group on Constitutionalism

Ainsworth Lecture: The Brig, the Steamboat, and the History of the Federal Commerce Power (Public Lecture or Presentation)
Title: Ainsworth Lecture: The Brig, the Steamboat, and the History of the Federal Commerce Power
Abstract: In the course of this talk, my aim is to convince you that the standard narrative of 18th- and 19th-century American constitutional history is incomplete. It is incomplete because it focuses too narrowly on two great constitutional moments: first, the founding period from 1787 to 1791, when the Constitution and the Bill of Rights were drafted, debated, and ratified; and second, the period between 1861 and 1870, which witnessed the Civil War and the drafting, debating, and ratification of the Reconstruction amendments. For many scholars, the founding and Reconstruction are the two signal events in American constitutional history prior to the 20th century. Bruce Ackerman of Yale has deemed them “constitutional moments” – periods in which “We the people” engage in conscious acts of constitutional creation and transformation. The founding and Reconstruction certainly qualify. The founding was the point of origin, and Reconstruction was the moment of reckoning. My focus today, though, is not a point or a moment. It is a four-decade-long argument. The period between 1815 and 1861 – the end of the War of 1812, right here in New Orleans, and the beginning of the Civil War, up in Charleston Harbor – was a constitutional era unto itself. It was not simply the hangover from the founding; nor was it merely the prelude to the Civil War. These 46 years contained within them an unparalleled period of creativity in constitutional thought. The constitutional world looked different in 1861 from the way it had looked in 1815. The landscape of what was constitutionally possible changed over the duration of what I term the interbellum period.
Author: Alison L. LaCroix
Date: 3/20/19
Location: Loyola Law School, New Orleans, LA

Rivers of Commerce: The Illinois Federal Courts as Umpires of Antebellum Union (Public Lecture or Presentation)
Title: Rivers of Commerce: The Illinois Federal Courts as Umpires of Antebellum Union
Abstract: My topic is the role that the federal courts in Illinois played in debates over the nature of the Union in the early 19th century. In particular, my focus will be the courts’ involvement in shaping and adjudicating conflicts over commerce and navigation on and across the nation’s rivers.
Author: Alison L. LaCroix
Date: 4/9/19
Location: U.S. District Court for the Northern District of Illinois, Chicago, IL

Who Cares What "The Federalist Papers" Say? (Conference/Institute/Seminar)
Title: Who Cares What "The Federalist Papers" Say?
Author: Alison L. LaCroix
Abstract: A discussion of the Federalist essays and why they matter today, with special reference to the founding period and the early nineteenth century.
Date Range: 10/31/18
Location: Wisconsin Judicial Conference, Lake Geneva, WI

“Here Are Three States Almost on the Eve of War”: Practicing Commerce and Concurrence in the Early Nineteenth Century (Conference Paper/Presentation)
Title: “Here Are Three States Almost on the Eve of War”: Practicing Commerce and Concurrence in the Early Nineteenth Century
Author: Alison L. LaCroix
Abstract: Commerce was the key constitutional frame through which early-nineteenth-century Americans understood their rapidly changing landscape. During this period, the United States developed into a federal, commercial republic. Local activities in one state were understood potentially to “affect other States,” as Chief Justice John Marshall wrote in Gibbons v. Ogden (1824). But another powerful strand of constitutional thought resisted this expansive notion of federal commerce. This imperative was an unsettled but deep commitment to concurrent power. States clearly had the power to regulate some forms of commerce under their traditional police powers. Between 1801 and 1835, the Marshall Court confronted a series of prominent cases that required it to define the federal power to regulate commerce. These controversies concerned diverse areas of activity, including the use of the waterways; the importation of foreign goods; and the status of free black sailors in southern ports. All these cases concerned crossings of borders, whether by vessels, goods, or people. Which sovereign could govern those vessels, goods, and people when they crossed those borders was the central issue connecting this disparate array of cases. Yet the text of the Constitution provided no clear answer.
Date: 2/9/18
Conference Name: History and Theory in Legal and Constitutional Development, University of Notre Dame in London

The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Book)
Title: The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms
Author: Alison L. LaCroix
Abstract: What was the nature of the American union during the nation’s adolescence, after the Founding and before the Civil War? The Interbellum Constitution was a set of widely shared legal and political principles: commerce, concurrent power, and jurisdictional multiplicity, all grouped under the heading of “commercial union.” These issues concerned what we might now term “federalism,” insofar as they frame the relationships among multiple levels of government with varying degrees of autonomy. A core claim of this book, however, is that there existed many more federalisms, plural, in the early nineteenth century than today’s constitutional debates admit.
Year: 2024
Publisher: Yale University Press
Type: Single author monograph
Copy sent to NEH?: No

Publius Symposium - The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Public Lecture or Presentation)
Title: Publius Symposium - The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms
Abstract: What was the nature of the American union during the nation’s adolescence, after the Founding and before the Civil War? The Interbellum Constitution was a set of widely shared legal and political principles: commerce, concurrent power, and jurisdictional multiplicity, all grouped under the heading of “commercial union.” These issues concerned what we might now term “federalism,” insofar as they frame the relationships among multiple levels of government with varying degrees of autonomy. A core claim of this book, however, is that there existed many more federalisms, plural, in the early nineteenth century than today’s constitutional debates admit.
Author: Alison L. LaCroix
Date: 2/23/23
Location: Stanford Law School, Stanford, CA
Primary URL: https://law.stanford.edu/event/publius-symposium-with-alison-lacroix-the-interbellum-constitution-union-commerce-and-slavery-from-the-long-founding-moment-to-the-civil-war/

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