The Interbellum Constitution

1. The Interbellum Constitution: An Age of Plural Federalisms (1815-1861)

The messy norm of the early nineteenth century was concurrence and overlap and conflict.

A distinct constitutional era. The period between the War of 1812 (ending 1815) and the Civil War (beginning 1861) was not a constitutional lull but a foundational era of both crisis and creativity, best understood as the "Interbellum Constitution." This challenges the conventional view of these decades as a mere hiatus between the "real" constitutional moments of the founding and Reconstruction. Debates during this time focused intensely on the meaning of "union" and the proper structure of governmental authority.

Beyond binary federalism. The era was characterized by "federalisms" in the plural, reflecting a complex landscape of overlapping and conflicting authorities. The fundamental relationship was not a simple binary between the federal government and the states. Instead, numerous claimants to power existed, including:

• Local governments and actors
• The states
• The federal government
• "The people" as an amorphous entity

Constitutional creativity. This period witnessed a vibrant process of constitutional meaning-making, driven by widely shared legal and political principles like commerce, concurrent power, and jurisdictional multiplicity. These principles were debated in diverse arenas, including newspapers, private letters, legislative chambers, and especially courtrooms, where lawyers' arguments and judges' opinions actively shaped the evolving understanding of the American union.

2. Commerce as the Crucible of Federalism

In practical terms, commerce was the crucible in which interbellum battles over federalism boiled.

Central to constitutional contestation. The nature and scope of Congress's power to regulate commerce—with foreign nations, among the states, and with Native nations—became the primary battleground for federalism debates. This was not merely an economic question but a deeply structural one, asking which governments would regulate in particular domains and how overlapping jurisdictions would resolve conflicts.

Defining "commerce." The meaning of "commerce" itself was a subject of intense debate. While it encompassed traditional trade and traffic, figures like William Wirt expanded its definition to include "intercourse," suggesting a broader web of connections and interactions vital to the Union's existence. This expansive view elevated disputes over steamboat monopolies or passenger taxes into matters of profound constitutional significance.

From "Commerce of the Union" to "articles of commerce." Initially, the focus was on a holistic "Commerce of the Union" as a unifying national imperative. However, by the late 1830s, the inquiry shifted to more specific "articles of commerce"—ships, goods, and people—and how their movement across borders implicated various levels of governmental authority. This change reflected a growing dissatisfaction with abstract national power and a turn towards more precise, often localized, regulatory claims.

3. The Janus-Faced Nature of Federal Power

As the book discusses, however, the valence of federal power in the interbellum period did not necessarily run toward freedom, and the embrace of state authority did not always serve racial subordination.

Challenging conventional narratives. The common assumption that federal power inherently advanced liberty (especially for Black people) while state power protected slavery is a backward projection of post-Civil War dynamics. In the interbellum era, the relationship was far more complex and often contradictory.

Federal power's dual role. Federal laws and actions could serve diverse, sometimes opposing, ends:

• Restricting freedom: The 1803 Act to Prevent the Importation of Certain Persons into Certain States, while ostensibly targeting the international slave trade, also reinforced state laws prohibiting the migration of free Black people.
• Protecting slavery: The Fugitive Slave Clause and subsequent federal acts mandated the return of enslaved people, extending the reach of slavery into free states.
• Ambiguous outcomes: In cases like The Brig Wilson, Chief Justice Marshall's interpretation of federal law, while upholding its constitutionality, ultimately led to the release of a vessel that had violated a state's anti-migration law for free Black persons, demonstrating the nuanced and sometimes unintended consequences of federal action.

State authority's varied directions. Similarly, state authority was not uniformly pro-slavery:

• Some states passed anti-kidnapping laws to protect free Black individuals.
• Northern states later invoked states' rights to resist federal fugitive slave laws.

This complex interplay highlights that the "federal-state alignments of the 1860s have frequently been projected in reverse, onto the early nineteenth century," obscuring the era's true constitutional fluidity.

4. Concurrent Power: A Viable Alternative to Binary Federalism

Even more surprising, perhaps, was the pervasiveness of arguments for nonbinary federalism—a view of the federal-state relationship as one of concurrence and negotiation, rather than as a stark, all-or-nothing contest between federal and state power.

Beyond "federal versus state." The early 19th century saw a robust and widely accepted concept of "concurrent power," where both federal and state governments could legitimately regulate the same subjects. This challenged the Blackstonian ideal of a single, indivisible sovereign and offered a practical framework for managing the multilayered American system.

Defining the boundaries of shared authority. Debates over concurrent power were not merely theoretical; they had practical consequences for issues like commerce, migration, and slavery. Legal figures like New York Chancellor James Kent argued that states retained a "vast field of commercial regulation," including "internal commerce," which could coexist with federal authority unless there was an "actual collision" with federal law.

Negotiation, not annihilation. This approach emphasized negotiation and accommodation between different levels of government rather than a zero-sum struggle for exclusive control. It recognized that a "disorganized, disjointed, jarring and clashing chaos of jurisprudence" could result from unchecked state action, but also that federal power should not "annihilate the legislative power of the states." This nuanced view allowed for a dynamic interplay of authority, where state laws could operate until explicitly superseded by conflicting federal legislation.

5. The Supreme Court as Umpire (or Not)

The Constitution has given us an umpire, Wirt argued: the Supreme Court.

A contested role. While figures like William Wirt championed the Supreme Court as the necessary "umpire" to "harmonize the jarring elements in our system" and prevent "civil war" among states, this view was far from universally accepted. Many state officials, particularly in Virginia and Georgia, vehemently rejected the notion that any federal institution, including the Court, held ultimate interpretive authority over the constitutional compact.

Limits of judicial power. The Court's ability to enforce its judgments against defiant states was a recurring challenge. In cases like Martin v. Hunter's Lessee (1816), the Virginia Court of Appeals initially refused to comply with a Supreme Court mandate. Later, in Worcester v. Georgia (1832), Georgia openly defied the Court's ruling, highlighting the practical limitations of judicial power when faced with determined state resistance and a reluctant executive.

The "tripartite contract" and its implications. Justice William Johnson's concept of the Constitution as a "tripartite contract" among "the people, the states, and the United States" offered a framework for understanding the Court's role. For Johnson, the Court was an institution that could maintain a three-way balance, but its authority was often challenged by states that saw themselves as the sole arbiters of the compact, leading to a "disorganized, disjointed, jarring and clashing chaos of jurisprudence."

6. Fractal Federalism: Nations within States within a Nation

The Cherokee Nation was a nation within a state that was itself within a different nation.

Challenging the "solecism." The Cherokee Nation's struggle against Georgia (1827-1839) brought to the forefront the concept of "fractal federalism," where an Indigenous nation asserted its sovereignty while physically located within the chartered boundaries of a U.S. state, which was itself part of the larger American union. This directly confronted the Blackstonian idea of imperium in imperio (a government within a government) that the founders had largely rejected for states but Georgia now applied to the Cherokees.

Cherokee nationhood and self-assertion. Leaders like Elias Boudinot, editor of the Cherokee Phoenix, meticulously articulated a vision of the Cherokee Nation as a distinct, civilized polity with its own constitution, laws, and diplomatic relations. They insisted on their status as a "faithful ally" of the United States, not a subject, and argued that Georgia's attempts to extend its jurisdiction over them were illegitimate.

The limits of federal protection. Despite the Supreme Court's ruling in Worcester v. Georgia (1832) that Georgia's laws were unconstitutional interferences with federal treaties and exclusive power over Indian affairs, the federal government, under President Andrew Jackson, refused to enforce the decision. This demonstrated the profound limits of federal judicial power and the executive's role in shaping the practical realities of federalism, ultimately leading to the forced removal of the Cherokee Nation.

7. States' Rights: A Flexible Doctrine with Shifting Valences

Shouts of “states’ rights” might have come more frequently and forcefully from slave-holding southerners. But Wisconsin officials in 1859 had as robust a theory of nullification as had their South Carolinian counterparts in 1832.

Beyond a southern monopoly. The doctrine of states' rights, often associated with southern efforts to protect slavery, was a far more flexible and widely adopted constitutional argument in the interbellum period. Northern states, particularly in the 1850s, wielded states' rights rhetoric to resist federal power, demonstrating its adaptability to diverse political agendas.

Northern nullification. The "Booth War" in Wisconsin (1854-1861) saw the state's supreme court and legislature explicitly invoke "compact theory" and the right of "interposition"—language directly borrowed from Madison's Virginia Resolutions and Calhoun's nullification arguments—to declare the federal Fugitive Slave Act of 1850 "unconstitutional and void." This was a direct challenge to federal supremacy, not in defense of slavery, but against its enforcement.

A tool for diverse ends. This shifting valence of states' rights highlights that the doctrine was not inherently tied to a single policy outcome. It could be used to:

• Protect slavery (e.g., South Carolina's Negro Seamen Act).
• Resist federal tariffs (e.g., South Carolina's nullification crisis).
• Oppose federal enforcement of slavery (e.g., Wisconsin's defiance).

The widespread appeal of states' rights reflected a broader commitment to local autonomy and a distrust of centralized federal power, regardless of the specific issue at hand.

8. The Local Dimension of Federal Power

The whole—the Union—could and did influence events, even down to the level of the dock, the market, and the mayor’s court.

Interconnectedness, not separation. Despite theoretical arguments for distinct federal and state spheres, federal power was deeply interwoven with local institutions and daily life. Customs houses, post offices, federal marshals, and commissioners operated within cities and counties, often sharing physical spaces with state and local judiciaries and officials.

Ports as points of convergence. Port cities like New York and Charleston were prime examples of this jurisdictional multiplicity. Federal customs officers, responsible for collecting duties and enforcing federal laws, interacted daily with local merchants, city officials, and state regulations concerning everything from public health (quarantine laws) to migration (passenger acts). The Mayor of New York v. Miln case (1837) vividly illustrated how a city's local ordinance could trigger complex federalism debates.

The challenge of disentanglement. This deep embedding of federal authority meant that any attempt to "get out of the Union," as Frederick Douglass observed in 1861, required more than mere declarations. It necessitated the dismantling of a vast, intricate network of federal institutions and personnel operating within state borders, from mail service and custom houses to forts and arsenals. The practical reality of federalism was a dense, many-threaded fabric, not a simple binary.

9. The Fugitive Slave Act: A Catalyst for Crisis

This was a degradation which the North would not permit any longer than until they could get the power to expunge such laws from the statute books.

A direct assault on northern autonomy. The Fugitive Slave Act of 1850, a key component of the Compromise of 1850, fundamentally altered the federal-state dynamic by compelling northern citizens and officials to actively participate in the rendition of alleged fugitives. This was perceived by many northerners as an unacceptable invasion of their states' "prerogatives and independence," transforming abstract federalism debates into concrete moral and political conflicts.

Forced complicity and "degradation." The act's provisions, which denied fugitives due process and deputized ordinary citizens as slave-catchers, sparked widespread outrage. Figures like Ulysses S. Grant later argued that this "degradation" of making "Northern marshals . . . slave-catchers, and Northern courts . . . contribute to the support and protection of the institution" was a primary cause of the Civil War, galvanizing northern sentiment against the "Slave Power."

Fueling resistance. The act led to dramatic confrontations, such as the rescue of Joshua Glover in Milwaukee, where crowds defied federal marshals and state courts challenged the law's constitutionality. These events demonstrated that the federal government's attempt to project slavery nationwide, cloaked in federal authority, provoked a powerful counter-response rooted in local autonomy and a reinterpretation of states' rights.

10. The Compromised Union and Its Dissolution

If there is not wisdom and virtue enough in the land to rid the country of slavery, then the next best thing is to let the South go to her own place.

From "Commerce of the Union" to "Compromises of the Union." The hopeful vision of a unifying "Commerce of the Union" that characterized earlier interbellum debates gradually gave way to a "Compromised Union" by the 1850s. This shift reflected a growing disillusionment with the federal government's ability to resolve sectional conflicts, particularly over slavery, without sacrificing fundamental principles.

Douglass's radical critique. Frederick Douglass, a prominent abolitionist, articulated a powerful critique of this compromised Union. He argued that if the federal government continued to appease slaveholding interests and enforce laws like the Fugitive Slave Act, the Union was not worth preserving. He even suggested that the dissolution of the Union might be a necessary step to truly attack slavery, as it would free an antislavery president to act decisively.

The limits of federalism. The events leading up to the Civil War, including Wisconsin's defiance and Douglass's calls for dissolution, revealed the ultimate fragility of interbellum federalisms. The intricate web of overlapping authorities, while initially a source of flexibility, became a site of irreconcilable conflict when fundamental moral and political disagreements, particularly over slavery, could no longer be contained by legal or institutional compromises. The question became whether the Union could be reconstituted on new, more just, terms.

Last updated: March 14, 2026