U-Chicago Law's Alison LaCroix on the Origins of American Federalism

The Learning Curve Alison LaCroix

Barry: [00:00:00] Welcome to this week’s version of The Learning Curve. I am Barry Anderson, your guest host for this week’s program. For those of you who haven’t caught my previous appearances, I am a lawyer by training Retired state supreme court justice, 19 years on the Minnesota Supreme Court, six years on the Minnesota Court of Appeals with an active interest in civics throughout my entire professional life.

And I’m delighted to be with you here today. We have a fascinating guest who’s going to be talking to us about federalism, but federalism in the context of the American founding an aspect that m- most of us, including me are not familiar with. I want to introduce everyone to our co-host today, Kelly Brown.

tell our viewers a little bit about yourself. Sure, Barry, I’d love to. Thanks again for having me today. And I am a high school civics and government teacher at East Hampton High School in Massachusetts, where I teach the We the People program, and I’ve been on this show many a times [00:01:00] as a co-host, and I’m just really excited.

Kelley: I’m a big fan of Allison LaCroix, and so I can’t wait to talk with our guest today. 

Barry: it’s gonna be an interesting conversation. but, our listeners have to hang on to us until we get there, ’cause we’ve got some things we have to do first. And maybe we can talk with each other a little bit about the stories of the week.

have you start with your story of the week. 

Kelley: I have been reading actually a lot, obviously, like all of us have, about the 250th, and civic education, and what people are chatting about these days. But I picked up a piece this week from the recent Secretary of Education of the Commonwealth of Virginia, Amy Guidara, it caught my attention because she titled it 250 Reasons This is the Time for a Renaissance in Civic Education.

And uh, of course, that drew me in as a civic educator. There were some really interesting things that she talked about. She’s recently a part of and helping to lead the Commonwealth of Virginia’s 250th Commission. And they had an education steering committee where they [00:02:00] really thought about, you know, how do we reinvigorate civic education in Virginia.

And some of the things that really hit home to me, She was talking about not just about teaching civics, but, like, how do we get young people engaged and excited about civics talking about things like cross-generational book groups, which I have done with my students before. But also just, you know, museum on wheels, things that students can really kind of latch onto.

But there were a couple of really important things that I took from this article that I think, I’m thinking a lot about these days. The first was she, you know, she mentioned how the founders really disagreed on lots of things, but one of the things they agreed on was civic education And how important it was.

And it kind of brought me back to there’s a part in, I think it’s book four of Montesquieu’s Spirit of the Laws, where he he kind of describes civic virtue as, like, loving your country and having patriotism and [00:03:00] how important it is. If you’re gonna have a republic where you’re asking people to put the country before themselves you kinda have to use civic education to help them see the value and really understand why their country is important.

And I think you know, education, he says something to the effect of should be the way that we inspire people to be good citizens. And my favorite part before I go on too long here, is that she kind of marks This year, the 250th as a beginning of maybe like a 10 to 15-year cycle, and I was really inspired by that.

This idea that, like, 1776 is the beginning, but if we walk maybe even all the way up to the Bill of Rights, you know, we’ve got, like, the next 15 years to think about how do we really restart this civic education engine. And having the 4th just passed and feeling like, oh, it’s over it’s exciting to me to think about maybe this as being the first of [00:04:00] many years where we can really think about civic education getting some new energy.

I don’t know. What do you think, Barry? 

Barry: Well, this is obviously something that you and I have both had a great deal of experience with, given the Center for Civic Education’s program, We the People. You’ve been teaching it, I’ve been judging it, and I mean, that’s a great opportunity to help build this.

Y- your article was a great stepping stone to some further discussion about civic education. And in my case, it is an article in The Christian Science Monitor entitled America’s Next 250: A Revival of Civic Virtues Might Hold the Key. Now, I have to say, when I first picked this up, you know, being the lawyer that I am, I was all prepared to critique it and argue with the author, even though he’s not here.

… Argue with the author about this is gonna be another one of these civic engagement pieces, action civics things. We want people to go to city council meetings and demand they do what we want them to do for public policy reasons, et cetera, et cetera, et cetera. I don’t think that’s civic virtue.

I don’t think that’s civic education. It’s important to do. There’s nothing wrong with it, but [00:05:00] it’s only a very small piece of this. And fortunately, you don’t have to listen to that speech because that’s not what the article was about. Instead, it really is a discussion of what does it take to sort of get people to reconnect with each other.

although he doesn’t mention this here, it is the follow-on to Robert Putnam’s famous book, Bowling Alone. 

Alison: Mm-hmm. 

Barry: and also a, call back to Tocqueville, w- his Democracy in America book he makes this great point of gatherings with Americans who would engage in community activities together, you know, building civic connections between each other.

And for example, he quotes someone here who’s an author and talking about a kind of growing local appetite for countering divisiveness, that you don’t have to agree on everything to cooperate on some things. So how do we get, you know, the kind of social networks that labor unions, rotary clubs, other social organizations churches, synagogues, mosques, all of those help build.

I think it’s worth reading. I recommend it to people. You know, I would quibble a little bit. there’s just a [00:06:00] hint here of y- doing this for, purposes of accomplishing something. the event itself is an accomplishment.

Getting people together who might be of disparate interests and views becomes a lot harder to engage in the kind of nasty partisanship we have when we know the people we’re talking to. So I, think it’s well worth reading. 

Kelley: Yeah. I, I think those conversations about how do we build social capital in this moment are just so incredibly important and and I hear you.

I think about that a lot with my students. And so I’ll definitely have to pick that up and, take a read. 

Barry: Well, very good. And so now that we’ve solved the, y- civic virtue issues and civic engagement issues let’s move on to our guest. And so coming up after the break, we have Allison LaCroix, who is the Robert Newton Reid Professor of Law at the University of Chicago, and the author of the book we’re gonna be discussing today, The Ideological Origins of American Federalism.

Alison LaCroix is the Robert Newton Reid Professor of Law at the University of Chicago, where she’s also an associate member of the history department. She’s a [00:07:00] scholar of US legal history, specializing in constitutional law, federalism, and 18th and 19th century legal thought. Professor LaCroix’s second prize-winning book is The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalism, which was published in 2024.

Supported by a National Endowment for the Humanities fellowship, the book examines the transformation of US constitutional law between the founding and the Civil War. Professor LaCroix is also the author of The Ideological Origins of American Federalism, which was published in 2010, and in 2021, President Biden appointed her to the Presidential Commission on the Supreme Court of the United States.

She earned a Bachelor of Arts summa cum laude from Yale University, PhD in history from Harvard University, and JD from Yale Law School. 

Kelley: Professor Alison LaCroix, we are so excited to have you today, and I just wanna jump right into our questions that we have for you while we have you on. So [00:08:00] the first question I’d like to ask is actually about your Ideological Origins of American Federalism book.

So, you’re noted for this book. Would you start by defining for us what federalism was in early American constitutionalism, and maybe offer a very brief overview of that book in particular? 

Alison: Absolutely, and thanks so much for having me. It’s such a pleasure to talk with you today.

So, I think one of the issues about talking about federalism is that it’s one of the most confusing concepts in American constitutional thought and debate, and that is true today, and it was also true in the 18th century and the 19th century. So, so the history is helpful, but it requires a little bit of unpicking.

when I use the term federalism or when it comes up in a constitutional law class or the intellectual history of American federalism, what I mean by that, I think what we typically mean, is a couple of key ideas. So it’s a system of [00:09:00] government in which you have the same either territory or group of people who are governed by more than one level of government at a time, and each level of government has its own specific and somewhat independent or maybe entirely independent area of authority.

 in the US system, which probably is most familiar, that’s the idea that we have the US government, the national government, sometimes confusingly called the federal government, although again, confusing everywhere, so I’ll try to avoid that. And then we also have the states, and the states have their own specific spheres of authority.

And so the central idea is multiple layers of governmental power. I think of them as arranged vertically. I think spatial metaphors can sometimes be helpful, so I often draw this on the board. And so there’s some degree of hierarchy in the relationship, but there’s also a lot of autonomy. the units, like the subunits, the members, the states, are not just the agents or the creatures of the [00:10:00] center.

And I think that’s tremendously important because it’s different from just decentralized authority or from having local governments sort of carrying out the will of the center. And part of what I think motivated the ideological origins of American federalism was my sense, which I started on that book a while back, many years ago, in fact, when I was working on my history PhD, having already been to law school at that point and having a sense that lawyers talked about American federalism as though it was something that sprang from the brains of the Founding Fathers.

They created it, they invented it, and it’s either wonderful or, problematic, but that it sort of originated in 1787 in Philadelphia. And then on the history side a sense that the British Empire was in many ways federal, and so the American governmental system was just replicating the British Empire.

And I thought there’s something in between that seems more accurate to me, which is not the founders created this out of whole cloth, but also not that it was [00:11:00] just government in England governing the colonies trying to bring together of scholarship. 

Barry: You write in The Origins of American Federalism, quote, “The early modern body of political philosophy was deeply influenced by the work of Roman thinkers such as Cicero and Plutarch.”

 And you go on further to contrast the, quote, “Growing corruption and disorder they saw about them with an imagined earlier republican world of ordered simplicity and Arcadian virtue.” I wonder if you could briefly discuss some of these ancient models of federalism that so powerfully influenced our constitutional thought?

Alison: I think when we look at the founders, and I generally refer to them as the founding generation, just as a kind of broader group than just the people who wrote the constitutions. Because I think of this as a project that people were thinking about really from the 1760s to the 1780s, maybe early 1790s, as kind of a broad founding set of debates.

[00:12:00] And one of the things that people were thinking about, so James Madison, certainly household names like James Madison, Alexander Hamilton and then some others who are less familiar but were also hugely influential at the time like James Otis, we might discuss John Dickinson certainly Thomas Jefferson had a lot to say, and then a whole range of people who were actually running the British Empire.

So we can find people talking about what the nature of the British Empire and its constitution were really throughout the 18th century. And they often, all of these people, thought back to for many of them, what had been their own educational background and schooling, which was more of a classical education.

So, the ancient models or the classical precedents that they tended to think of were situations in which they thought, “Okay, here’s some particular historical example,” and they might have thought that there was a problem with that historical example, and so those were cautionary tales, or they in some cases thought [00:13:00] those are really good models that we should try to adapt.

But I think one of the things they were thinking about was certainly examples from ancient Greece, though the Amphictyonic League, which go way back to something like the seventh century BCE, or the Achaean League, which was a little more recent, fifth century BCE, also ancient Greece.

And then to them more contemporary examples like the United Netherlands and the German Empire, which had been the Holy Roman Empire. And so a lot of them said, okay, in the 1760s you have these people who think of themselves as British North Americans, and they’re really thinking about law and they’re thinking about politics and they’re thinking about these classical examples.

And I think their view very strongly was that we tend to forget was that they were British North Americans. They were part of this British Empire. They were, in many cases, committed to the British Empire, and they were trying to figure out are there examples of how you can have [00:14:00] a polity or a country or a realm that extends outside of the territory of Great Britain itself.

And so they’re looking for these examples because they say these are examples of situations where you have agreements among different political Entities. And that’s ac- actually where the word federalism comes from, this word foedera treaties or agreements among political entities. Leagues is another translation.

And so they looked at these examples, and I think again, it’s important for us to think these ancient and classical precedents were, are important to us, in part because they were influential for members of the founding generation, even though the members of the founding generation often had incomplete information or disagreed about which ancient precedents or even about the fact.

But one of the big examples of this influence on the founding generation is James Madison in the spring of 1786, we know that he was [00:15:00] sitting at home in his library on his plantation, Montpelier, in Virginia. He was in the Virginia House of Delegates at the time, so this is after the Revolution, but before the Constitution, and he’s a member of the Virginia legislature.

And he was asking Jefferson, who was in Paris, to send him these trunk full of books, because Jefferson had access to all the publishing houses in Paris and Europe. And Madison produced this incredible pamphlet, but it was like a research memorandum for himself, called Notes on Ancient and Modern Confederacies.

And he goes through all of these kind of what we would think of as different forms of federal government or confederal polity. So those ancient Greek leagues, like United Netherlands, and he tried to study them very systematically, and he says the problem in each of them, because the problem is evident to him because they weren’t still thriving.

So he’s like, “They’ve all [00:16:00] died in some different way or become basically Powerless. So each of them, he said the problem was the failure of this, that what we would say federal authority at the level of the kind of center. Like the union wasn’t able to unify the members or exert authority over them.

Writing about the Achaean League of, of ancient Greece, Madison said the defect was the defect of subjection in the members to the general authority, which ruined the whole body. So it’s interesting. They’re sort of doing historical research, people like Madison especially. They have a view about using the past and learning from the past, but they also did not think we are bound by the past.

In fact, it was kind of the opposite. It was a sort of set of case studies about what went wrong and what should we try to improve upon, and he’s writing this in 1786 as the Articles of Confederation are the governing document system for the United States, and Madison and others were increasingly thinking that they weren’t [00:17:00] quite unifying enough.

The states retained too much power, and whether that was about continuing to have peace negotiations and sort of diplomacy with Great Britain, or fending off other great powers of Europe, or dealing with native nations, or dealing with rebellions at home, they pervasively have the sense that there’s not enough power in the center.

 And that’s therefore Madison’s diagnosis. All these ancient models of federalism are important as, in many cases, examples of what not to do. 

Kelley: That is really incredibly interesting, and the context is so deep there, and I think maybe the next logical question is to sort of just take one small step forward to what comes next.

 You just noted, and you note in your book that you know, that founding generation, they were formed by being Englishmen. Their educations are classical, right, in Greek and Roman history, the Enlightenment, thinkers like Sidney, Locke, Montesquieu [00:18:00] English jurists like Coke and Blackstone. Can you discuss kind of the next step here?

 Revolutionary and founding era leaders developed a distinctive understanding of constitutional federalism that’s drawing from all those places. how do they synthesize this information and come up with something that isn’t wholly new, but like you said, they’re not strapped to any one model?

Like what does it look like with what they come up with?

Alison: The revolutionary and founding era leaders did have this distinctive understanding of constitutional federalism. It’s also important to note Just how British North American they were at the same time. So some of the things they shared with their British legal roots or English legal roots as they sometimes thought of them dated back to a previous century, to the 1688 Glorious Revolution in England.

So something that happened entirely in England with the arrival of William and Mary as king and queen, and [00:19:00] the exit of the Stuart kings, a very, very tremendously important series of events in English constitutional history. And I’m saying England also because 1688 is before the British government really arose, which happened in 1707 when England and Scotland unified.

So now again, we have people in the 1770s, ’80s in the US, or what we now think of as the US and even going into the colonial period, who think of themselves as British North American or English constitutionalists. And one of the elements of that set of beliefs was this belief in parliaments with a small P.

So not necessarily meaning the British Parliament that was created in 1707 when England and Scotland merged, but with, legislatures, with the people ruling as something that wasn’t direct monarchical rule. So the Glorious Revolution occurs in England in 1688, and a lot of the English British [00:20:00] settlers in North America think of themselves as sharing in that heritage.

They think, “Yes, now there’s a constitution, albeit unwritten. The king and queen understand that they have a certain role to play. Parliament is basically a co-equal branch. We believe in that too.” And so that actually permeates throughout the colonies in North America, and they think they are right on board with English constitutional thought, which they are for some period of time.

But what starts to be different, and it’s a kind of difference that isn’t recognized at first, is that the American colonists and then early US Americans in the kind of later on, but the American colonists specifically think, “Well, we’re part of this British Empire, and we are part of this in the sense of having allegiance to the king or the queen, but we have our own legislature.

We have a Massachusetts legislature, the General Court, confusingly named. It sounds like a court, but it’s a legislature.” so they think, “We have a local [00:21:00] legislature. We are represented. That’s part of our Glorious Revolution heritage. But of course, we are also under the general authority of the Crown, the King or the Queen of England.”

So right there you can see the beginnings of a problem when the British Parliament in Westminster in England says, “Well, no, no, no, no, no, we make the laws for the colonies, and you can do your own local laws for certain things that are totally internal, that are about- How you run the corn market in Charleston, or how you operate the hat trade maybe locally in Connecticut.

But gee, when you start to regulate the hat trade, and now you’re talking about fur pelts that come from Canada, which is another British imperial colony, or trade that goes to the Caribbean or elsewhere, that concerns the whole empire, and that means it’s the subject matter that the Parliament in Great Britain gets to regulate.

So we start to see this tension, even though they all sort of think we’re committed to parliaments, we’re committed to legislatures, about [00:22:00] which legislature has authority over which kinds of activity. And around the same sort of the immediate pre-revolutionary period, the 1760s, we also start to see legal authorities like Sir William Blackstone, who’s just one lawyer, and we understand him.

I think the Supreme Court of the United States talks about Blackstone as though he’s the authority. Blackstone was one authority, but he was someone who was writing a lot and writing a treatise about the common law. So Blackstone has this idea that sovereignty cannot be divided. In any political system, there has to be one sovereign.

And so in England, there starts to be this sense that Parliament is the sovereign. Anybody else, any other body that tries to take away from Parliament’s authority is actually doing something that is unconstitutional. But it’s really important to note that, again, Blackstone, just one voice, because there are lots of other thinkers, many of whom are very influential for the American founders, who say, “No, sovereignty is more complicated.

[00:23:00] Authority can be divided.” And one of the examples that a lot of people in America point to is Scotland. So between 1603 and 1707, Scotland and England have one monarch. They share a king. After the death of Elizabeth I, James I becomes king of both England and Scotland. England and Scotland each still have their own parliaments until 1707.

So you have a bunch of American colonists and constitutional theorists who say, ” That’s us. We have our own legislature.” And Thomas Jefferson, in one of his very first public essays on political topics, it’s called the Summary View of the Rights of British America. He publishes it, or it is published sort of without his doing in 1774, makes an argument like this, where he basically says, ” Of course we’re still part of the empire, but it’s a kind of dominion theory, where we’re under the authority of the king, but we have a local parliament.”

So it isn’t [00:24:00] one sudden break, and there’s actually a lot of English and British constitutionalisms that the American founders are adhering to all throughout this, and think of themselves as, as embodying and being true to right up until Jefferson in 1774 is the eve of actual hostilities starting out at Lexington and Concord.

So they’re still saying, “We can figure out a way to have this whole system work.” They’re not talking about independence, but they are talking about something very different from what a lot of English politicians and theorists have in mind. 

Barry: I want to pick up professor on your reference to Parliament.

 as you say in your book James Otis insisted, quote, “The Parliament cannot make two and two equal five. omnipotency cannot do it. There must be, in every instance, a higher authority.” In this case, he identifies God. Maybe that’ll come as a surprise to current parliamentary members that they can’t make two and two equal five, but anyway, they can’t.

Could you tell us about [00:25:00] the pre-revolutionary legal ideas of James Otis from Massachusetts and his famous 1761 speech against the writs of assistance? Other writings all influenced the revolutionary and founding generation’s understanding of natural law, the rights of colonies, and how national and state authority should be divided in a modern commercial republic.

This, of course, was an issue of concern to John Adams too, specifically. 

Alison: Yes, and Otis is one of the, I think, really undersung, underappreciated American revolutionaries. He’s a fascinating individual. His sister, Mercy Otis Warren, was a playwright, a woman of letters. She wrote a multi-volume history of the colonies and the revolution, so they were quite a formidable family and a very, very literary one in really fascinating and interesting ways.

So yes, Otis writes this pamphlet, The Rights of the British Colonies Asserted and Proved, in 1764. And I always really enjoy [00:26:00] talking about this and teaching it to students and just talking about it because it’s another of these very surprising pieces of writing that I think is crucial to understanding how we get to the American Revolution and some of the constitutional thought that’s going on even here in the 1760s.

Otis, I think, is one of the most vocal critics of the Blackstonian view of sovereignty. So Blackstone and others, again, are saying sovereignty is indivisible. omnipotent. That’s, I think, why Otis uses that word, and Blackstone says it’s in Parliament. Now, real parliamentary sovereignty, as in over all other parts of the British government, really gets going in the 19th century once the revolution is well in the rear view window, but it’s beginning at this point, and so Blackstone is making this argument.

Otis says, “I’m with you that legislatures have tremendous power.” And again, we have to remember what that’s in contradistinction to. It’s in contrast to a [00:27:00] monarchy, to the Stuarts and people like Charles I saying divine right of kings, the legislature is just a kind of- hazard and I can tell Parliament to just like put down their work and go home, as Charles did multiple times.

So Otis says, “Okay, legislatures are important. They are where the people’s will is represented. That’s, the essence of a republic,” which Britain isn’t, but a constitutional monarchy. so far so good. That sounds a lot like, oh, that’s Otis sounding like he’s a precursor to the American Constitution, except for this line and this passage that you quoted where he says but oh, you know, Parliament, while omnipotent, cannot make two plus two equal five but he then says, “Even though we know two plus two does not equal five.”

So it’s not what we would call a completely positivistic view of law in the sense of the law is whatever the sovereign or the legislature, whoever has s- supreme authority says it is. That’s not what he’s saying, ’cause [00:28:00] there’s some judgment there to say two plus two does not equal five. And he says omnipotency cannot do it, but then what’s the remedy?

You’re reading along in 1764 and you think, “That’s right, James Otis. No, they can’t say two plus two equals five.” So what do we do about it if they say that? And he basically says, “There’s nothing we can do. We have to wait for Parliament to realize the error of its mistake.” So it’s not much of a, of a remedy.

Parliament cannot make two plus two five. Omnipotency cannot do it. There must in every instance be a higher authority should an act of God, should an act of Parliament be against any of his natural laws, their declaration would be contrary to eternal truth, equity, and justice, and it would be void, which sounds like the law no longer exists, but not so because he says, “So it would be adjudged by the Parliament itself when convinced of their mistake.”

So Parliament can get things wrong, but the only thing that will change the law is if Parliament recognizes its error and [00:29:00] changes its mind, and presumably repeals the law. So I see that as a really important turning point, not Otis himself, but a stage or a benchmark because Otis is still steeped in the British constitutional context where the big advance of the 1760s, the first half of the 18th century, was this understanding of Parliament as having this tremendous authority, and parliaments in general.

But what I think the founders on the American side do is they say, ” There is a way to tell the legislature that it is mistaken, that two plus two does not equal five, and to not just have to wait for the legislature to fix its error,” and that is by having another branch of government step in.

So this is judicial review, the federal judiciary and in particular, the Supreme Court. and if one thinks like, “Well, wait a minute, that’s just sort of another branch or another government, why would they be able to do it?” Part of the answer is, [00:30:00] again, this idea that where I think we are getting to newer concepts once we’re talking about the Americans, which is to have a constitution that in their view represents the people and is higher law, a higher law than just positive law coming from a legislature, and that the federal judiciary, the Supreme Court again, which is the only federal court that’s constitutionally required, is speaking on behalf of that higher authority, that it represents the Constitution and through the Constitution, the people, and that’s why it can tell the legislature that it’s wrong about something.

Kelley: That is so interesting, and I think maybe a great segue to move forward just slightly in time to talk a little bit more about the framing itself and maybe that early republic period. In your book, Ideological Origins of American Federalism, you say, quote, “The problem with authority was the central issue for both the British Empire and the early American Republic.

James [00:31:00] Madison’s negative attempted to bridge these two systems, proposing a relationship between the national and state authority that applied one of the empire’s chief mechanisms to the new American government.” End quote. Can you talk a little bit about some of the founders Madison, Hamilton, others and their differing ideological views of federalism and the federal judiciary’s crucial role in mediating these founding constitutional tensions as you just started to hint at?

Alison: Yes, absolutely. So this is one of my favorite topics or sections of the ideological origins of American federalism. I just, I think it’s such a, fascinating and to most people surprising part of this story. Because we see in now talking about the Constitutional Convention, 1787 James Madison, who we think of as the father of the Constitution loses one of the things that he thought [00:32:00] was one of his most important contributions to the new Constitution.

So Madison had ideas that didn’t always win, and the Constitution we have was probably not, we know wasn’t the one he would have preferred. once we get to 1787 and we see… This follows immediately on those, that moment where Madison’s been in his study studying all the ancient and modern confederacies, and he says, okay, part of what convinces him that there needs to be a new effort at a constitution, which becomes the Constitution, is this problem of lack of devotion to the union, lack of uniformity, lack of in some instances, federal supremacy.

his idea, and what he brings to the Constitutional Convention, is this multi-pronged way of what I think of as building a union. So we have this group of what used to be colonies, and now they’re states, pretty loosely affiliated. Uh, Much more like these sort of European systems of states that theorists like Samuel [00:33:00] Pufendorf had talked about going back a century or so, but very much league-like.

Like, they’re sort of joined by agreements and treaties. And Madison says, okay, for a variety of reasons, Shays’ Rebellion, again, all the issues that, I mentioned, the kind of fear about foreign nations, the ongoing conflicts with native nations the actual instances of things like Shays’ Rebellion and sort of turmoil within, and things like states passing laws that were parochially friendly to their own citizens, but hostile to out-of-state citizens.

So he said, “We need to reframe this so that the Union has more force to it, and it overpowers, in some instances, these local and selfish affiliations.” So Madison’s big idea, and he really thought of it as the centerpiece of his Virginia plan that he and Edmund Randolph together bring to the Constitutional Convention, was this idea that you would give the federal government, in particular Congress and probably the Senate, the power to veto state [00:34:00] laws.

So we would have a situation where, let’s say, the Illinois legislature down in Springfield passes a law, and the Senate of the United States would have the final say on whether the Illinois state statute becomes law or not. It’s pretty unthinkable to us. I mean, we would think that’s not the system we have.

The federal and the state legislatures don’t work that way. Why would the Congress have that kind of authority over a state legislature? But that’s what Madison thought should happen, the negative, as he called it. And he had a pretty strong view of it. He goes into the Constitutional Convention and says, ” Look, there was something like this in the British Empire with the Privy Council reviewing provincial laws, colonial laws.”

A kind of quick, cartoonish vision would be like, that’s when he lost, because they fight the Revolution to get away from Britain. But actually, that’s not true. There are people in the Constitutional Convention who think there might be something to this system. But they end up not adopting it, and the turn in the Constitutional Convention that occurs [00:35:00] over relatively few days in summer of 1787 is that they say that’s too big of a federal imprint on the states.

That would be too much in the power, too much nationalizing. Instead, as Thomas Jefferson writes to Madison, Jefferson is in Paris, he’s not part of the debates, but Madison’s reporting to him, and Jefferson says, “I don’t like your negative. It’s too big of a patch to repair a very small hole. I would rather have judicial review,” which is really something, ’cause we don’t tend to think of Jefferson as being pro judicial review.

But what Jefferson was saying was, “You’re setting up a system of these- linked legislatures where anything a state wants to do that might be entirely local and about only Illinois, to use my example, now the federal government is going to have some sort of up or down vote on that, and that’s going to be much, much too invasive on the states, and it’s going to create problems where there don’t need to be problems.

Instead, we [00:36:00] could have a system where if someone says, “I think a state law violates the Federal Constitution or federal law,” they can bring a lawsuit and the federal courts will decide whether that, in fact, violates federal law. So they shift, I see this as a really significant shift. They shift from legislature to legislature policing of what makes a union a union to the judiciary, the federal judiciary, again, particularly the Supreme Court of the United States, waiting for somebody to actually bring a case or controversy to the Supreme Court and say, ” Okay, now we have too much friction between the state and the federal government.”

And so we see that in Article III of the Constitution, the way it describes the judiciary of the United States, the judicial power, and the Supremacy Clause of the Constitution saying federal law is supreme. But all of that, I think, is downstream of the rejection of Madison’s negative. And Madison, to the end of his life, and he died in the [00:37:00] 1830s, was saying, you know, “Of course the Constitution is wonderful, but I still regret the loss of the negative.”

I think he still thought it was the kind of battle that he really wished he’d won. 

Barry: So let’s talk a little bit about the period between 1815 and 1861, which takes us to your earlier book on the Interbellum Constitution. That period witnesses a transformation in American constitutional law and politics, as you write.

And your book argues that these decades were a foundational era of both constitutional crisis and self-conscious creativity. Discuss the continuity there of that period of time and, maybe give us a brief overview of this second book, 

Alison: Well, The Interbellum Constitution, as you said, it, ended up, it has ended up being a kind of sequel to the first book, which was not totally what I had in mind when I started writing it. But I think one of the things that I try to do in Interbellum Constitution is to say this period [00:38:00] between the founding and the Civil War, and specifically between 1815 and often gets overlooked, especially in constitutional history.

So if you look at a con law case book in a law school or just the way the Supreme Court talks about constitutional history, there’s the founding and then there’s sort of a period of Turmoil or uncertainty or stasis, and then there’s the second founding, as the historian Eric Foner calls it, the Civil War and Reconstruction.

And so they treat this period as what I’ve phrased constitutional flyover country. It’s kind of like neither here nor there, we’re just waiting for the next big transformative event to occur. But in fact, I argue it’s a real period, it has its own constitutional creativity, and one of the, the ways that we see the real creativity is in some ways continuous with the ideological origin story, with the founding period.

And that is a kind of pervasive awareness [00:39:00] of the founding generation. But I think of the interbellum people in this period, again, 1815 to 1861, as almost like teenagers because they seem to alternate between being incredibly nervous and anxious and worried that they’re going to mess up what their parents and grandparents gave them, and they do think of it that way.

And then these moments where they just have incredible bravado and brashness, like, “We have the steamboat, we have the telegraph, we have an even bigger country, we’re the greatest, and there’s no way you know, anybody could hope to equal us.” So there’s this sort of adolescent kind of pinballing back and forth that I also see as very distinctive.

And then finally another sort of aspect that’s continuous in some ways, but then I think goes in quite a different direction, is that the issues or the sort of domains that were left unsettled by the founding, including things like the taxing power, which the Federalist essays specifically single out as evidence of shared [00:40:00] federal state power, the taxing power, power over commerce, power over migration, a lot of aspects about regulation of slavery.

The founding and the Constitution, the text and the kind of practice of the Constitution, left those unsettled. there just are not answers. So even if someone in 1820 had said, “I will do what the founders tell me to do,” which wasn’t how they thought about it, they wouldn’t have had a lot to go on other than that these are shared domains of power, what we call concurrent power.

 so it’s a kind of living in the aftermath of the founding, but the founding doesn’t give them answers, and they are very, very creative. So they have all of these debates about state power versus federal power, the nature of the union, and I argue in the interbellum Constitution that there are multiple different versions of American federalism that are on the table throughout this period up to the Civil War.

So we often think the Civil War comes about because some states believe in [00:41:00] states’ rights, and then the Union kind of fights them and subdues them and makes them understand that it’s all about national power, which is not the story at all. One aspect of the story that’s extremely fascinating is the pervasiveness of states’ rights arguments on kind of all sides in the, this interbellum period.

And whether you’re talking about issues of slavery or race or native nations or commerce or taxation, states’ rights is the kind of language that all the arguments occur in. It isn’t that everybody agrees what that means, but the notion that the states have a special secure domain of authority is widely shared.

And so the period I think is really quite interesting in that respect and, certainly also has a lot of connection to our own moment.

Kelley: I wanna pick up there. One of the things I really appreciated about this most recent book in reading it is the way in which you kind of pull us out of presentism thinking about federalism, and kind of really think about the multiplicity of [00:42:00] federalisms that existed, and exploring the thoughts, the different thoughts that existed.

And you do that through these little sort of case studies or stories throughout, and one of them is about Justice William Johnson. He’s been called the, quote, unquote, “First dissenter.” You write in The Interbellum Constitution, quote, “President Jefferson nominated Johnson in part to provide a Republican bulwark against the consolidating Federalist tendencies that were already evident on the court under John Marshall.”

End quote. Can you tell us about Justice Johnson and some of the key episodes in which his jurisprudence reflected the legal federalisms in this era? 

Alison: Yes, and I really did not go into the book thinking I was going to write as much about Justice Johnson as I did, but then he just ended up being this incredibly fascinating character.

So he was on the court from 1804 until he died in 1834, so quite a long time. He was young [00:43:00] when he was appointed to the Supreme Court. He was only 32 the same age as Justice Story, who people often say was the youngest ever, and Justice Story was remarkable in many ways, but Justice Johnson was also 32.

I think part of what’s so interesting about him to me is that, as you suggested in your question, which I love, is that he confounds a lot of our expectations about this period and what we think we’ll find. So- William Johnson grows up in Charleston, South Carolina. His parents were longtime Carolinians.

They had both been involved in the American Revolution. His mother had supposedly smuggled ammunition to his father in her petticoats during the Revolution, during the Siege of Charleston. So they are very much embedded in the kind of old South Carolina revolutionary heritage. They were of the kind of middling sort of artisan class.

His father was a blacksmith. They also owned a fair amount of property. They owned a plantation. They enslaved people. But we’re not [00:44:00] talking about the grand scale of the massive, massive South Carolina plantations of a family like the Pinckney family, who I also talk about. But the Johnsons are clearly planters, and they are South Carolina planters, which is a very particular kind of demographic.

Johnson was educated at Princeton, and then he came back to South Carolina. He’s in South Carolina state government, has this really rapid ascent, and is obviously a kind of political force and incredibly intelligent. And so I think if I said, “Well, there’s this justice on the Supreme Court from 1804 to 1834.

He’s a South Carolina planter,” I think we would all expect him to be heavily involved in the nullification movement defending slavery as a positive good, to use the phrase of his fellow South Carolinian, John C. Calhoun, and contemporary. And probably also, again, in the somewhat sort of standard, maybe a little cartoonish view, to be someone who’s very anti-federal power.

But in fact, most of those things are not true, at least [00:45:00] the assumptions. So Johnson, part of how I ever came to him was that he did dissent in some cases against Chief Justice Marshall, but not in the way President Jefferson had hoped. In a couple of cases, he dissented or concurred, which for the Marshall Court was almost like a dissent because Marshall had gotten everybody on board with the idea of these unanimous opinions.

Johnson wrote separately on many occasions to be more pro-national power than John Marshall, but in complex and interesting ways. And he was also incredibly brave and probably kind of a difficult guy to be around. I think he was iconoclastic in lots of ways. But one of the things about the justices in this period is that they spent part of the year, actually most of the year, not in Washington, D.C.,

but riding circuit, sitting as federal trial court judges on circuits that were usually their home state and surrounding areas. And so Johnson, in 1823, is sitting as [00:46:00] the circuit court judge in this case called Elkison versus Delassoline, that is a challenge to a South Carolina law that basically says Any sailor who arrives on any vessel, whether it’s US or foreign, who is– I mean, they have different ways of describing the persons they mean in the terms of the day and the statute, but basically any sailor who they think is, Black or Afr- of African descent has to be jailed while the ship is in port in South Carolina.

And a case involving a sailor who is subjected to this comes before Johnson, and he issues this opinion that just completely rejects the claims of a lot of his fellow Carolina planters. And instead he says, “No, this is a violation of the Interstate Commerce Clause, the International Commerce Clause.

This is federal power. This involves treaties with Great Britain, shipping.” And he’s ostracized and he’s essentially spends the rest of his life living in Charleston, but being persona non grata there. And in [00:47:00] another case, he writes about how the federal commerce power is exclusive. So he’s a really interesting person who I think scrambles a lot of our assumptions about what people in this period think and do, and he also was a constitutional theorist.

He has this theory that he utters in a concurrence in a really important case called Martin versus Hunter’s Lessee that the Supreme Court decides in eighteen sixteen. And Johnson says the Constitution appears in every line of it to be a contract, which in legal language may be denominated tripartite, so the tripartite contract, three parties.

And he says the parties are the people, the states, and the United States. And that is a unique view of the Union. Most of the time in this period, it’s sort of the state versus the central government, and one or the other has to win, and which came first. But Johnson says it’s the people, the states, and the United States all together who make the Constitution, which is above all of them.

And so he was also a [00:48:00] political thinker in a really sophisticated way, who in some cases, of course, was devoted to South Carolina and to state power, and we see that in lots of other areas. It wasn’t as though he just said the national government can do whatever it wants. But he also was willing to really stand against what we think of as the usual interests of South Carolina and certainly what in the nullification movement in the eighteen thirties was the idea that South Carolina could just nullify federal law.

Johnson is a federal judge sitting there in Charleston saying I am here representing the law of the United States, which is the supreme law of the land.” 

Barry: You know, it’s not just Justice Johnson who is maybe more complicated and there’s more to his story than, perhaps we might think. You also point out in the Inter Bellum Constitution that quote, “Even Gibbons v.

Ogden, the preeminent case establishing the commerce power of Congress and the supposed nationalism of the Marshall Court contained more varied strands of federalisms, than previous [00:49:00] accounts have acknowledged,” close quote. So as we did with Johnson, maybe we can talk about unpacking Gibbons v.

Ogden for us, briefly summarizing your chapter quote, “The Steamboat and the Commerce of the Union,” close quote. 

Alison: Gibbons is one of the great Marshall Court cases in constitutional law. In pretty much any law school class everyone spends some time on it. It’s from 1824, and it usually feels like a kind of throat-clearing exercise.

Like, okay, this is where the Supreme Court said, if there’s a federal regulation about anything that has to do with interstate commerce, then that is superior over any conflicting state law, the end. And it’s about steamboats, which is kind of quaint. so we see it in, I mean, all sorts of modern cases about federal power.

So the Affordable Care Act cases you name it, federal criminal statutes, lots and lots of times that Congress regulates activity, it’s regulating under the commerce power, and Gibbons is really [00:50:00] the kind of original Supreme Court case on that point. One of the things I love about it, though, is that there’s so much more in it, and there was a lot more on the table than we tend to think.

And how do I know this? I know this because as someone who is an intellectual historian as well, I looked at the arguments the lawyers made. In this period, the lawyers had not quite unlimited time for a oral argument before the Supreme Court, but functionally unlimited. And so the oral argument in a case like Gibbons, which people understood at the time to be significant, went on over days, and there weren’t written briefs in the way we have now.

So it was all oratory from multiple lawyers for each side, often not being interrupted by the justices. And so my thought on that was, well, it’s worth looking at that because even though you might think it’s numbing after a certain period to read oratory it’s the case that those lawyers are going to throw everything at the wall that might possibly stick [00:51:00] to help their client because they have a duty of zealous advocacy and unlimited time.

So this will be a good window into all the possible arguments people could make. And Gibbons really to me, illustrated how much was in those arguments that we’re just missing. So there are multiple lawyers on each side and basically what’s happening is one company had been running steamboats in a monopoly in New York Harbor from New York over to New Jersey under a charter from the state of New York, and a competitor company comes along and says, “Well, I wanna run steamboats, too.”

It clearly violates the New York monopoly, but the competitor says, “Well, I have this federal coasting license, which was given to me to run my steamboats by an act of Congress,” so therefore supremacy clause, so federal law is supreme, so the state law has to give way, so there’s no New York monopoly anymore.

And the court says, after a long and very eloquent opinion, Chief Justice Marshall says, ” You’re right. The federal [00:52:00] coasting license says that the state monopoly has to give way, so the competitor gets to run his steamboats.” But along the way, they talk about the fact that commerce is very hard to define, and commerce is something that goes on in the states.

And so are we saying that New York cannot regulate anything that looks like commerce? Is all commerce, whatever that term includes, the subject only of regulation by Congress? And so as they go through the oral arguments, we see one of the lawyers in particular for the New York monopoly, and this lawyer himself is a fascinating figure.

He’s an Irish revolutionary and an immigrant who had a thriving legal practice in New York. And he says, “Well, look at all the New York statutes, all these municipal laws about markets, and about transport of goods, and about enslaved people, and about markets, and about commerce and trade. If only Congress can regulate anything that looks like commerce or trade, all of these would have to fall.”

And he’s making this [00:53:00] strategic argument to say, “So it can’t be that this is exclusively federal.” And the Supreme Court, Chief Justice Marshall, toys with the idea that any kind of interstate commerce could be regulated only by Congress, which would mean the states would basically have their hands tied.

If they were regulating New York Harbor, which connects with New Jersey or anything that looks like it crosses state lines, the states would have to say, “We can’t possibly regulate it because it might have federal connotations and be only Congress’s power.” Marshall throws that out there as a possibility and for some 30 years in the Supreme Court’s case law, it’s unclear whether interstate commerce can be regulated only by Congress or also by the states.

It gets resolved in the 1850s. We now know, of course, states can regulate interstate commerce too, but that helps us understand 30 odd years of Supreme Court case law. Also, the reference to enslaved people and regulations of slavery. You might think, “Well, why is that , happening in New [00:54:00] York in the 1820s?”

Well, because there was far more long continuing persistence of slavery, even in, though we would think of this as the North into the early 19th century. The North-South divide is not what it would later become. And the notion that the power to regulate people who were enslaved or slavery itself, it’s had a federalism angle, was also something that was very powerful.

So Gibbons, which seems like it’s this kind of one paragraph perfunctory case in the con law case book, actually turns out to have these much more complex strands going into it, and the lawyers really ach- the heights of oratory. We get two of the lawyers trading quotations in Latin from the Aeneid on the floor of the Supreme Court.

And so it also has a very powerful literary and rhetorical style to it as well that really had argumentative authority behind it. It wasn’t just ornamental, and I think that’s also important if we wanna get a full picture of the Supreme Court over [00:55:00] the long history of the country.

Kelley: That is just so incredibly interesting especially thinking about the long hours in front of the Supreme Court. I would love to just ask you one more specific question about the Interbellum Constitution before we get to kind of one last wrap-up question. In The Interbellum Constitution you write about the leaders of the Cherokee Nation.

And you say As with their dealings with the executive branch in Congress, the leaders of the Cherokee Nation did not approach the Supreme Court as naive, unsophisticated, or friendless provincials.” Can you discuss the landmark 1831 Supreme Court decision Cherokee Nation v. Georgia, and how it revealed the era’s, quote, unquote, “federalism of fractals”?

Alison: Yes. many people are probably somewhat familiar with the Trail of Tears and the Cherokee Nation, but many other native nations, especially in now the southeastern United States, and the forced [00:56:00] removal and expropriation that was going on throughout the 1830s and certainly other decades as well and well beyond just the southeastern United States.

But I focused on the Cherokee Nation and its leaders’ efforts, and I think the quotation you, you referenced picks up on this. We know that there were these Supreme Court cases about the Cherokee Nation. There’s Cherokee Nation versus Georgia in 1831. There’s Worcester versus Georgia in 1832. But I wanted to frame those Supreme Court cases more broadly in this, these decades of diplomacy, as they called it, and as it was widely understood, and political action across all the branches of government by Cherokee leaders from the 1820s through the 1830s.

And so it wasn’t as though there were Supreme Court cases that were the one and only time that these arguments were heard. And also to note how significant the leaders of the Cherokee Nation were in [00:57:00] really directing this multi-pronged campaign. So, the Cherokee Nation writes a constitution in 1827 and is resisting the United States’ efforts to exert jurisdiction over it for decades and decades.

But the tipping-point moment or the real exigency of the 1820s is when the state of Georgia says, “Well, we’re looking at a map here,” and if you look at maps of Georgia from the 1820s, sometimes the outer boundary of the state of Georgia includes an area of land that is the Cherokee Nation and sometimes Georgia goes around it and the Cherokee Nation is there But the state of Georgia says, “Well, gold has been discovered on Cherokee Nation land and we also have a lot of white settlers in Georgia who would like that land.

The land is very valuable.” And so Georgia revives some old arguments actually from the founding period to say essentially, the Cherokee Nation cannot be a nation within the [00:58:00] boundaries of Georgia because the fundamental unit of American federalism is the state, and Georgia is a state. And so Georgia has to have complete and total control over everything within its boundaries, and you cannot have another state within a state.

They bring up this concept that I talk about in the earlier book, imperium in imperio. You cannot have an imperium in imperio. You can’t have a sovereign within a sovereign. So that’s the argument Georgia makes. They make a political theory argument, but they’re highly motivated by the land and the presence of gold.

The Cherokee leadership, who have a variety of views about how they should deal with the state of Georgia, with the administration of Andrew Jackson, with other states ’cause the Cherokee Nation extends into other kind of fringes as well. The Cherokee leaders, who include the principal chief, John Ross, and then a journalist who’s also a political leader, Elias Boudinot, and his cousin, John Ridge, who are political leaders and [00:59:00] important figures as well.

They basically, in different ways, take the view that Georgia is mistaken about American federalism. They make arguments about American federalism. Not to say that they are subject to American federalism, but to say that American federalism could give them the possibility of arguing for their nation’s independence, or at least continued existence as a nation in the southeastern US.

So the fractal federalism idea that I offer is that it’s like fractals repeating patterns. So these Cherokee leaders say the Cherokee Nation is a nation within a state that’s within a nation. So Cherokee Nation is within Georgia, Georgia’s within the United States, and that’s compatible with the federalism models that are possible.

And when they do get to the Supreme Court, their lawyer, William Wirt, who had been in many of my earlier chapters, including in Gibbons versus Ogden, he’d also been the Attorney General of the United States for many [01:00:00] years. He’s one of the leading Supreme Court practitioners and orators. Wirt really makes their argument in this kind of incredible, what turns out to be one of the final years of his career kind of performance We’re totally rebutting the Georgia arguments and saying, “Well, there’s Washington, D.C.

That got carved out of Maryland and Virginia. So it can’t be the case that we only have states and nothing below, quote unquote, or within a state, because territorially we have other things like Washington, D.C. that are kind of within the boundaries of states but are also something different.” The Supreme Court ends up saying there’s no jurisdiction to hear the case.

They don’t have jurisdiction despite the very, very careful and really beautiful and, clever procedural threading of the needle that William Wirt and his principal client, John Ross, chief of the Cherokee Nation, engage in because they have to deal with sovereign immunity. They have to deal with Article III.

And the Supreme Court says, “Well, Cherokee Nation is not a foreign nation. It’s not like France, [01:01:00] but it’s also not a state. It is a domestic dependent nation, and so it can’t sue Georgia.” the Supreme Court doesn’t have jurisdiction under Article III of the Constitution. It’s not a victory.

I think the fact that they recognize any degree of nationhood at the time was remarkable to many people. The subsequent eighteen thirty-two case, Worcester does become much more of a victory for the Cherokee Nation. The Supreme Court says Georgia can’t extend jurisdiction over Cherokee land. But then we get to the problem of enforcement, which is not as simple as Andrew Jackson saying, “I will not enforce the decision.”

There are particularities about returning to the Supreme Court and the Supreme Court not being able to issue the order itself. But certainly there’s politics involved as well, and the Cherokee Nation’s claims are essentially frustrated through a variety of avenues. But yeah, I think that It’s another version. The federalism of fractals is entirely thinkable to people who are both Cherokee and non-Cherokee at the time, and it [01:02:00] isn’t as though this is some theory that only a few people could have endorsed. In fact, I think there was lots of support for the Cherokee Nation.

Barry: know, with the two books that you’ve written, professor, that we’ve been discussing here today, the, Ideological Origins of American Federalism and the Interbellum Constitution, these are two magnificent explanations of some legal forces that helps clarify our understanding of early American federalism and maybe some of the discussions that we’re having today about federalism.

I wonder if you could just share with us a few major takeaways that you hope citizens and students alike might learn to help better appreciate our constitutional history and after you’ve done that, I’m gonna ask you to read a paragraph from, one of your books. Anyway, the floor is yours. If you could help us with those major takeaways, let’s have a little conversation about that.

Alison: It’s a great question, and it’s one I think about a lot. When I’m writing a book of legal history, a work of legal history, the questions are historical questions. The questions might have some [01:03:00] Salience today, but the answers are always historical answers, and you have to, I think, look for the surprises so that you don’t end up just going and looking for things that, seem familiar because then you’re not reading carefully.

But that said, I think the history does have something to say to us today, or maybe a few things. One is just how we think about constitutions and constitutional change. That there can be constitutional argument and creation and meaning that changes even outside of these sort of particular founding moments of the 1770s and ’80s and then the 1860s and ’70s.

 that this is a real period and that constitutional change doesn’t always occur in a moment or a kind of flash of symbols or something, or require a civil war. And there can be change going on, and that also means it’s not just the text of the Constitution. we’re in a moment where the Supreme Court likes to begin with the text, but then talk about a certain understanding of history and tradition [01:04:00] that sometimes is incomplete.

It’s sometimes going and looking for things that seem familiar and saying basically, “Well, this eighteenth century language isn’t all that different from our own. So if they say federal or if they say officer or if they say remove or appoint, they mean what we mean,” instead of recognizing that they are truly speaking a different language and the way to learn that language is to really appreciate the whole context.

So, I think it’s also a- an appeal for history done through proper historical methods, reading primary sources and appreciating context, and sometimes knowing that the history is not going to answer a question that we think is interesting today or the exact question because they thought different questions were interesting.

There are examples in the 1840s and ’50s In some of my other work that I talk about where the question was how do we do big public works projects? What they called internal improvements, what we would think of as infrastructure. How does Congress do those? [01:05:00] And There were decades where the, reigning consensus was Congress can’t fund or oversee internal improvements.

They can’t do roads. They can’t do canals. It’s beyond their power. And we don’t think that anymore. We can just look at the federal highway system. But the workaround that people came up with in the eighteen-forties and fifties, Congress gives federal land in the states to the states with the specific requirement that the land be used to build a railroad.

Here Illinois, here’s some federal public land in the state of Illinois. You need to turn around and charter a railroad company tomorrow. We would think that was unconstitutional today. So they thought things were constitutional that we think are un– They thought things were unconstitutional are things that we think are constitutional.

So I think it’s an effort to remind us of the degree of change and difference, even though we say, well, of course, we have the same constitution over this long period. And what does that also suggest? I think it’s also a… The founders have a lot to say to us, but it isn’t that we are bound by what they [01:06:00] said.

And so I think when we think about originalism and sort of certain modes of using history, I think it’s important to be clear-eyed about the limits of what history can and can’t tell us, and also, again, that sometimes what passes for history is not actually history in any recognizable way that historians would do.

And then I guess the last point is just the pervasiveness of arguments about state sovereignty. I think we’re seeing we’re in a moment where states make arguments about autonomy and state power that feel like they are either new or the reverse, because we tend to think of a certain kind of states’ rights argument from, let’s say, the twentieth century civil rights era.

But in fact, s- arguments about state sovereignty and the idea that the Tenth Amendment of the Constitution tells us the states have a clear domain that is theirs and theirs alone that is a, set of values that has been with the United States all along. And so it isn’t a kind of new discovery to make that argument.

Barry: Absolutely fascinating professor, and I just wanna thank you for [01:07:00] this extended conversation about the founding era. I certainly am leaving it with a better understanding of some stories that I thought I fully understood, and it’s quite apparent I was wrong about that. Perhaps you could share with our listeners a paragraph from one of your books?

Alison: Absolutely. I’d be delighted to. So this is from The Interbellum Constitution, the more recent book and it’s from the introduction. “What was the nature of the American Union between 1815 and 1861? Early 19th century Americans had not yet decided what every provision of the Constitution signified, but they believed that the only way of determining that meaning was to distill potential interpretations into words, to argue about those words, and to accept that the arguments of the day would set the parameters for the rounds to come.

Later generations have come to regard early 19th century constitutional debates as either quaint set pieces of high-flown declamation by gentlemen in fussy cravats and puffy shirts, or as [01:08:00] masks performed to conceal ugly truths of partisan, regional, racial, or economic interests. To be sure, there were neck cloths and perorations, and there were unsavory deals struck in back rooms of taverns while a majority of the population looked silently on, ironing those lengths of linen and hushing the children.

But to see the era solely through such generalizations is to miss important transformations in constitutional law. Interbellum Americans were not people who knew their limits. They were not mere passengers. They were producers of constitutional discourse whose arguments charted the maps of the American constitutional sea.”

Barry: Professor, thank you for your time today. This has been a wonderful exploration of those early years of the Founding Republic and a way to recognize the 250th anniversary of the declaration, which comes smack dab in the middle of all of this conversation. So thanks very much. 

Kelley: Yeah.

I wanna say thank you, too. I could listen to you all day. It’s very clear that you’re a teacher as well as an incredible scholar, so [01:09:00] thanks so much. 

Alison: My pleasure. Thank you

Barry: That was a tremendous interview with Professor Lacroix. And if you’re interested in this topic, I, much recommend her book. You know, this program typically has done sort of a tweet of the week to finish. And I think we’re gonna do something a little different today, and that is to note this date in history, which is actually yesterday, if I have my dates right.

And that was the 1969 landing of Apollo 11 on the surface of the moon. And it’s topical even, given the passage of time, because we’re in the process of going back to the moon. And for those of us a certain age, my case I’m 71, I’ll be 72 in October, I have vivid memories of sitting in my basement in Mankato, Minnesota at age 14, watching on a not very sophisticated black and white television as this story unfolds.

And I think today’s generation of young people and maybe not so young people, sort of [01:10:00] treats this as something that was expected to happen. And we don’t actually realize how many, many barriers there were to a successful mission. And to that end, Richard Nixon then president of the United States, had one of his speech writers prepare a speech that was never delivered, fortunately if the mission had failed.

And there were opportunities for it to fail. During the final descent, the automatic targeting system didn’t work. Neil Armstrong, the pilot and leader of the mission, recognized the danger and took manual control. he had 15 seconds of fuel before he landed. And they had to go over rocky fields to get there.

There are all kinds of ways that this mission could have turned out in a very different way. And so, today when you think about the history of, our 250 years of history and we think about that episode recall too that it was not necessarily guaranteed for success, as is always the case with exploration.

I’ve gone on too long about it, but it is an important piece of American history, and perhaps not [01:11:00] as well understood as it should be. So now that I’ve inflicted that story on people, let’s move to next week’s guest. Kelly take the ball and run with it, if you would. tell our listeners what we’re going to get next week 

Kelley: Yeah, sure.

I’d love to. At first, I just wanna say what an incredible interview we just had with Alison Lacroix and just how much I enjoy the way that she thinks about thinking. It’s just really incredible to look at that time period. And I will always remember July 20th ’cause it’s my dad’s birthday, so, the moon landing always sticks out in my head for sure.

But next time on our show we’ll be having Robert Masson. He’s the editor of the Concord Review which is an academic journal dedicated to publishing the history research papers of high school students. Definitely a program that I think is incredible as a high school teacher.

So thanks so much for having me today, Barry, and I really enjoyed co-hosting with you. 

Barry: Me as well. We look forward to seeing you all next week