Dispatches From Amendment Valley

Table of Contents Show

Introduction

The Constitution, as I like to remind the students in my Constitutional Law I class, is very old, very short, and very vague. Among the 7,762 words of the Constitution are the twenty-seven amendments, the first and last of which were both proposed in 1789 but were ratified 201 years apart—the First Amendment in 1791, and the Twenty-Seventh in 1992. Professor Jill Lepore of Harvard University, this year’s Jorde Lecturer, observes that “[s]ince 1789, members of Congress have introduced more than ten thousand proposals to amend the Constitution.”[1] Yet only twenty-seven of those proposals were ratified and became amendments. “The rest,” Professor Lepore concludes, “are ‘discards,’ amendments that failed.”[2]

In her Jorde Lecture, Professor Lepore brings her signature skill of conveying complex ideas and nuanced argument through elegant narrative to two profoundly important questions. The questions she poses are, first, how did the Constitution become so impervious to amendment; and second, given this imperviousness, what is to be done?

As Professor Lepore’s lecture suggests, one purpose of her project is to broaden our understanding of what qualifies as constitutional debate—“widening the aperture of constitutional history,” as she puts it, to include activities and debates outside the formal bounds of Article V.[3] What she terms “the philosophy of amendment” is a crucial component of this broadening.[4]

Another dimension of the broadening is temporal. In the course of her history of amendments, Professor Lepore calls for an “investigation at the years between the Twelfth and Thirteenth Amendments, between Marbury v. Madison and Dred Scott, with the idea of amendment at its center.”[5] This period, which some scholars have treated as what Professor Lepore calls an “amending hiatus,” was, she argues, in fact “no hiatus” but rather “a contest between competing agents of constitutional revision.”[6] On one side of the contest were institutions at the federal level of government—the Supreme Court and Congress. On the other side, newly visible thanks to the widening of the aperture, were state constitutional conventions—“the most important constitutional institution of the nineteenth century.”[7]

In this Essay, I will offer a somewhat different account of how amendments fit into the larger history of change to the Constitution. I argue that the six decades between the ratification of the Twelfth Amendment in 1804 and the Thirteenth Amendment in 1865 did not in fact constitute a gap in national-level constitutional change. When we broaden our gaze to take in the full sweep of the constitutional landscape between the Revolution and the Civil War, we discover that the federal Constitution, too, was undergoing profound shifts in meaning.

These inter-amendment decades overlap with the period of my recent book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms. The book argues that the first half of the nineteenth century must be understood as a distinct era in American constitutional time, an era characterized by crisis and creativity. The central claim of the book is that the decades between 1815 and 1861—which I call the “interbellum period”—witnessed a series of profound constitutional transformations, especially on issues concerning the nature of the Union. Constitutional change was rampant throughout the period. Yet this change occurred not through text, but through debate. The debates spanned many arenas: newspapers, private letters, legislative chambers, and the special domain of the courtroom.[8]

I share Professor Lepore’s view that the early nineteenth century was not a hiatus in constitution-making when one considers the ferment surrounding state constitutions. Striking differences existed between the American political world of 1804, still reeling from Thomas Jefferson’s controversial election in the “revolution of 1800,”[9] and the post-Emancipation Proclamation, post-Appomattox world of December 1865.

This constitutional change did not occur only through amendments; nor did it come about only in discrete “constitutional moments.”[10] One need not abandon the realm of the federal Constitution and shift focus to the states to find constitutional dynamism in the interbellum period.[11] There is much to discover in the valley between the Twelfth and Thirteenth Amendments. The valley is important on its own terms, and also for our ongoing constitutional project of mapping the terrain on this side of the Twenty-Seventh Amendment. But to see the verdant valley properly, we must first tear our field glass away from the bright glare of the peaks.[12]

I. De-Sacralizing the Early-Nineteenth-Century Constitution

Let us begin with an initial question: how can we explain the dearth of amendments between the Twelfth in 1804, which restructured the processes for electing the president and vice president, and the Thirteenth in 1865, which abolished slavery and granted power to Congress?[13] Why this textually fallow sixty-one-year period, especially when that same period was roiled by political and legal controversies over the scope of federal power, economic regulation, the expansion of suffrage, and slavery, among other issues?

One influential account holds that the dearth of amendments across these six decades stemmed from a shared belief among Americans that the Constitution should not be—perhaps could not be—amended. On this view, Americans did not amend the Constitution between 1804 and 1865 because however much they might have argued about existential questions of law and politics, they did not regard themselves as qualified to make those kinds of revisions to their frame of government.

According to the historian Michael Vorenberg, the reason for the absence of amendments in this period was “the widespread belief among all Americans that the constitutional text should remain static.”[14] Thus, “[i]n the fifty years leading up to the Civil War,” Americans came to view the constitutional text as “sacred.”[15] Behind this commitment to a sacred, static text was a faith in the Constitution as a symbol.[16]

After the war, Vorenberg argues, the Thirteenth Amendment marked an epochal transformation in how Americans thought about the Constitution. In choosing amendment as their strategy to make emancipation national, durable, and perpetual, Americans both ended slavery and also adopted “the concept of a living constitution,” according to which they were not committing “patricide” but rather “altering the Constitution without eviscerating it.”[17] On this view, the story of amendments in the nineteenth century hinges on a sharp “before” and “after” rooted in the cataclysm of the war. Before 1865, Americans believed in a sacred, stable, complete-within-itself Constitution. In 1865, however, the imperative of emancipation shocked the nation out of this view and emboldened its citizens to revise their frame of government to its core.[18]

Yet the “sacred Constitution” thesis cannot explain the frequency and volubility with which amendments were discussed by a wide variety of commentators, whom I have described as “producers of constitutional discourse,” in the early nineteenth century.[19] These individuals did not regard the Constitution as static. On the contrary: between 1804 and 1865, proposed federal constitutional amendments poured forth from state legislatures and Congress. The subjects of these proposed amendments were particularly telling. They covered a wide range of topics, but three were especially prominent: the power of the federal courts; internal improvements (public works projects); and slavery. So, to return to our first question: why were there no amendments between 1804 and 1865? Not because Americans were afraid to pick up the Article V tools.

The proliferation of proposed federal constitutional amendments in the decades between the Twelfth and Thirteenth suggests the degree to which Americans of the period viewed the Constitution as a work in progress. Some numbers suggest the volume:[20]

·       Between 1800 and 1860, thirty-eight amendments concerning the Supreme Court’s jurisdiction were proposed in Congress.[21]

·       During the same period, twenty amendments concerning federally funded or managed “internal improvements” were proposed in Congress.[22]

·       Also during the same period, eighty-three amendments concerning slavery (including the international and domestic importation of enslaved people, the status of fugitives, and apportionment of congressional representation) were proposed in Congress.

In retrospect, of course, we know that none of those amendments carried the day. These sixty-one years might therefore appear a dry plain—a “drought,” in Professor Lepore’s words—between the blooming gardens of successful Article V amendments.[23]

But how can we square the sacred Constitution/dry valley view with the persistence of proposed federal constitutional amendments during this period? One response might be to dismiss these proposals. They failed to garner enough support to amend the Constitution and therefore might be seen as evidence not of an amendment-friendly mindset, but rather its opposite.

To put the point more bluntly: perhaps all these proposed amendments were just cheap talk. In the dry valley between amendments, they were the phantom rain clouds that appeared in the sky but then vanished without depositing any precipitation. Or, worse, they were ersatz cumulonimbi seeded there by the confidence men of nineteenth-century politics—diversions and occasions for posturing and declaiming but not sites of genuine constitutional debate. Not serious amendments; simply gestures.

I do not take this view. And here is my first argument: properly understood, the territory between the Twelfth and Thirteenth Amendments was not an arid plain thirsting for constitutional precipitation. Instead, it was a wild forest of new growth that included many species other than amendment. The foliage of constitutional change lay thick over the American political and legal landscape between 1804 and 1865. The groves of what we now call “federalism” were particularly lush. Not all of this growth was healthy, and much of it was parasitic, threatening to choke off its very life source, the Republic, as it struggled to lay down roots. The conflagration of the Civil War, like the armies themselves, scoured the vegetation from the landscape. But the outlines of the forest remained. Amendment valley harbored vast potential.

II. The Availability of Amendments

Early-nineteenth-century Americans thought about amendments so often because they envisioned amendments as a much more accessible and integral part of the constitutional system than we do today. This was the case even during the ostensibly barren period between 1804 and 1865.

One striking difference between interbellum and modern conceptions of amendments was the degree to which nineteenth-century debates focused on structural, as opposed to rights-oriented, amendments. Most proposals sounded in what we would now think of as federalism or separation-of-powers terms: efforts to adjust the relative authority of the branches of the federal government or to rearrange the relationship between the states and the federal government.

Amendments were commonly invoked in the era’s frequent debates over congressional power under Article I of the Constitution. On topics ranging from Congress’s authority to establish the Second Bank of the United States, to its appropriations for roads and canals, to taxation, commentators regularly mentioned amendments as available solutions to the real-world problems they faced. Amendments were often cited alongside judicial review as potential tools for settling constitutional boundary disputes.[24]

The view that the amendment process was the best tool to abridge congressional overreach was embraced in 1826 by James Madison, who was spending much of his retirement corresponding with a new generation of political leaders.[25] Again, the focus of the debate was internal improvements. Martin Van Buren, at that point an ambitious U.S. senator from New York and a rising Democratic kingpin, had written to Madison to request the former president’s assistance in drafting an amendment barring Congress from funding road and canal projects. The “assumed power” to appropriate money for such projects, Van Buren complained, was being used by the Quincy Adams administration “as a most powerful, indeed irresistible engine” to “acquire the favour & secure the allegiance” of certain regions and parties.[26]

Madison’s response was complex. He acknowledged the popularity of federal funding for internal improvements projects. The benefits of transportation infrastructure, he wrote, had taken “extensive & permanent hold of the public will.”[27] Indeed, because of this widely held policy preference for roads and canals, “the constructive authority of Congress to make them will not be relinquished.”[28] In other words, the expedience of internal improvements would push Congress to claim broader and broader “constructive authority.”[29] This authority was only constructive, in Madison’s view; it was not strictly within Congress’s proper Article I domain.

But rather than simply giving in to this pressure to expand congressional power, Madison recommended a different tool: an amendment. Even an amendment granting Congress the ability to fund internal improvements would, he believed, be preferable to a potentially unlimited stretching of Congress’s implied powers. An amendment would set the outer limit. It would both “obviate the unconstitutional precedent” created by Congress’s claims of constructive authority, as well as serve as “a recorded precedent against constructive enlargements of power.”[30] Madison thus suggested that amendments ought to act as checks on the operations of the branches of the federal government.

John C. Calhoun’s theory of nullification presented a similar conception of amendments as necessary tools in the everyday machinery of government. In his anonymously authored Exposition and Protest of 1828, Calhoun—at the time the sitting vice president of the United States—argued that if a state nullified a federal law on the ground that it was unconstitutional, the remedy was for three-fourths of the other states, acting through state conventions, to override the nullifying state’s “veto.”[31] Calhoun envisioned the procedure as what one scholar terms “the logical converse of the amending process.”[32] The state veto, Calhoun argued, was simply and legitimately resetting the default in recognition of the sovereign capacity of each state. The effect of the state veto would be “to create the presumption against the constitutionality of the disputed powers exercised by the General Government.”[33] If the presumed invalidity of a given federal power was not “well founded,” the government might rebut the presumption by “invoking this high power to decide the question in the form of an amendment to the constitution.”[34]

Even as it inverted the amendment process in the name of state sovereignty, Calhoun’s doctrine of nullification confirmed the centrality of amendments to the constitutional landscape of the interbellum era. Like Madison’s account, Calhoun’s theory wielded amendment as a counterbalancing force against congressional power. In contrast to Madison’s endorsement of amendment as the best means of permitting Congress to carry out a desirable program of internal improvements, however, Calhoun saw the amendment process as a usefully high hurdle that the government would have to surmount in order to overcome the power of a state veto.

Yet while most interbellum constitutional thinkers regarded amendment as a vital and accessible mechanism of structural control, they did not all agree that its purpose was to prevent congressional aggrandizement. As the nullification crisis continued to rage in 1833, former U.S. Attorney General William Wirt criticized the theory of his onetime Cabinet colleague, Calhoun, in a private letter to his lifelong friend, Virginia judge Dabney Carr. Nullification’s repurposing of the amendment process, Wirt argued, was an attempt at “artfully shifting the movement on[to] the majority.”[35] In its cleverness, it frustrated the purpose of Article V’s amendment mechanism.[36]

Wirt had very clear ideas as to how the amendment process—which he called “the umpire agreed upon by the States who ratified the Constitution for the settlement of all difficulties”—ought to operate. “I think that where a power is assumed by any department of the Federal Government, it will be the more safe and quiet course to consider it as rightfully assumed until the constitutional majority shall rescind or deny it by an amendment,” he observed. “[T]hose who deny the power ought to appeal to the constitutional umpire, the Supreme Court, where it can be made a judicial question; and where it cannot—to the other constitutional umpire, the provision for amendments.”[37]

Wirt shared Calhoun’s reverence for the amendment process, but with the opposite presumption. Powers exercised by the federal government were to be presumed legitimate unless and until the Article V process indicated otherwise. Challengers to the government’s asserted authority could seek redress from one of two “constitutional umpires”: the Supreme Court or the amendment process. To wield the amendment tool, however, the challengers would have to win enough support to become a constitutional majority. Wirt thus rejected altogether Calhoun’s efforts to rework the amendment instrument into a weapon of the minority.

What do we learn from Madison’s, Calhoun’s, and Wirt’s views on amendments? We see little indication that any of them regarded amendments as illegitimate attempts to tamper with a sacred Constitution. On the contrary: despite their differing views on precisely how amendments ought to operate, they all embraced amendment as a necessary, salutary, and—crucially—available mechanism of calibrating the structural relationships that composed the Republic.

III. Structural Proposals: Slavery and the Supreme Court

When interbellum congressmen and state legislators proposed constitutional amendments, what did those amendments say? Many of the proposed amendments, as has been noted, concerned slavery. Some amendments sought to abolish slavery, while others attempted to strengthen protections for slaveholders through guarantees of putative property rights in enslaved people, enforcement of fugitive laws, and other means. In March 1861, on the final day of the Buchanan administration and just over a month before the Civil War began, Congress approved and sent to the states an amendment that became known as the “Corwin amendment.” Named after its sponsor, Congressman Thomas Corwin of Illinois, the Corwin amendment provided:

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.[38]

In his inaugural address on March 4, 1861, President Abraham Lincoln called the Corwin amendment “implied constitutional law” and stated that he had “no objection to its being made express, and irrevocable.”[39] By that point, the legislatures of two states—Maryland and Ohio—had voted to ratify the amendment, while a third—Illinois—had voted, via convention, to ratify.[40]

Yet slavery was not the only issue that galvanized legislators throughout the early nineteenth century into proposing constitutional amendments. Throughout the period between 1804 and 1865, a stream of draft amendments that sought to reshape the U.S. Supreme Court poured forth from state legislatures and from Congress. They were accompanied by waves of resolutions and draft statutes, again from all levels of the Union’s legislatures. Furthermore, over the same decades, a handful of state high courts issued opinions vociferously denying the power of the Supreme Court to review their decisions.

The principal target of this multipronged attack on the Court was its appellate jurisdiction to review the decisions of state high courts. The First Congress established this jurisdiction in Section 25 of the storied Judiciary Act of 1789.[41] Section 25 permitted the Court to review decisions in which a state’s highest court upheld the constitutionality of a state law against a challenge premised on a federal law or treaty, or the U.S. Constitution.[42]

At first glance, the attacks on Section 25 might seem to have little to do with the profound and contested substantive issues of the interbellum period, such as slavery, nullification, and internal improvements. A campaign to strip the Supreme Court of a species of jurisdiction granted in highly technical terms hardly seems to involve arresting questions about the nature of the Republic.

However, if we view the Section 25 controversy as six decades of sustained assault on the power of the Court to review—and thus to overrule—the decisions of the sovereign states’ highest courts, the urgency of the situation begins to come into focus. “Between 1789 and 1860 the court of seven States denied the constitutional right of the United States Supreme Court to decide cases on writs of error to State courts,” the historian Charles Warren wrote in 1913.[43] Those states were a varied array: Virginia, Ohio, Georgia, Kentucky, South Carolina, California, and Wisconsin. “The Legislatures of all these States (except California), and also of Pennsylvania and Maryland, formally adopted resolutions or statutes against this power of the Supreme Court,” Warren noted.[44] Moreover, the fusillade was not confined to state legislatures. Between 1821 and 1882, “[b]ills were introduced in Congress on at least ten occasions to deprive the Court of its jurisdiction.”[45]

Opposition to particular decisions issued by the Marshall Court catalyzed many of these efforts to curtail the Court’s jurisdiction. With its open and loudly argued defiance of the Court’s Section 25 jurisdiction in the sprawling litigation that became Martin v. Hunter’s Lessee,[46] the Virginia Court of Appeals opened a path for further attacks on the Court. One such challenge was Virginia’s 1821 resistance to the Court’s appellate jurisdiction over criminal cases, which the Court rebuffed in Cohens v. Virginia.[47] Moreover, the Court’s 1819 ruling in M’Culloch v. Maryland, in which it upheld the constitutionality of the Second Bank of the United States and invalidated Maryland’s tax on the Bank, drew especial ire not only from Maryland but from Ohio.[48] The same term brought the Court’s decision in Sturges v. Crowninshield, invalidating certain state bankruptcy laws.[49] Even more aggressive attacks from Virginia came two years later in response to the Court’s assertion of jurisdiction over a state criminal case in Cohens v. Virginia.[50] In 1823, the Court antagonized Kentucky with its holding in Green v. Biddle, in which it invalidated the state’s “occupying claimant” property laws.[51] New York joined the fray in 1824, in response to Marshall’s invalidation of the state’s steamboat monopoly in Gibbons v. Ogden.[52] That same year—exactly two centuries ago—long-simmering Ohio reignited its hostility to the Court in the wake of Osborn v. Bank of the United States.[53] South Carolina, aflame with nullificationism, attacked both the Supreme Court and the lower federal courts.[54] From the west, California took umbrage at the Court’s assertion of appellate jurisdiction over its courts.[55] Finally, in 1859, Wisconsin took up the mantle of states’ rights in defense of its authority to stave off the federal Fugitive Slave Law, defying the Court and pronouncing its assumption of jurisdiction “an act of undelegated power, and therefore without authority and void.”[56]

The remedies sought in these confrontations with the Court varied. Many argued for a repeal of Section 25 by statute, while others aimed higher, demanding a constitutional amendment barring the Court from exercising appellate review over state high courts.[57] Some reformers even proposed to replace the Court with another tribunal that would focus exclusively on cases involving conflicting federal and state laws. In 1819, for example, Virginia legislators introduced a resolution urging the state’s U.S. senators to propose an amendment creating a special tribunal “for the decision of questions in which the powers and authorities of the General Government and those of the States, where they are in conflict, shall be decided.”[58] Still other proposals laid down voting rules for the Court, including supermajority requirements to decide constitutional cases.[59]

One especially notable proposed amendment came in 1821, from Senator (and later Vice President) Richard Mentor Johnson of Kentucky. Johnson’s draft amendment provided that the Senate would have appellate jurisdiction in “all cases where a State shall be a party, and in all controversies in which a State may desire to become a party in consequence of having the Constitution or laws of such State questioned.”[60]

Writing in 1913, on the eve of yet another judiciary act that restructured the federal courts, Charles Warren noted the similarities between Senator Johnson’s moment of Court criticism and his own. Warren described Johnson as delivering a speech in January 1822 “assailing the Federal Judiciary,” in which Johnson “employed every argument which at the present day is being used in behalf of the doctrines of recall of judges and of judicial decisions.”[61] Warren went on to quote Johnson at length:

At this time . . . there is unfortunately a want of confidence in the Federal Judiciary in cases that involve political power; and this distrust may be carried to other cases. . . . There is a manifest disposition on the part of the Federal Judiciary to enlarge to the utmost stretch of constitutional construction the powers of the Federal Government. . . . Judges, like other men, have their political views. . . . Why, then should they be considered any more infallible or their decision any less subject to investigation and reversion? . . . Every department which exercises political power should be responsible to the people.[62]

Despite the warmth of Johnson’s diatribe against the Court, “[n]o action was taken” on his proposed amendment.[63]

IV. Constitutional Change Without Amendments

Thus far I have argued that early-nineteenth-century Americans believed that amendments were both useful and within their reach. They did not fear amendments or feel unworthy of making them. They proposed amendment after amendment, embracing amendment as the solution to problems ranging from ill-defined congressional power to existential conflict over slavery.

Yet the failure of these amendments did not exhaust interbellum Americans’ capacity to change the Constitution. In their minds, the amendment process was but one potential mechanism of constitutional change.

Indeed, interbellum American thinkers rarely appeared to feel confined by the actual text of founding documents such as the Declaration of Independence and the Constitution. Producers of constitutional discourse as varied as John Marshall, Frederick Douglass, Maria Henrietta Pinckney, William Wirt, John Ross, William Johnson, and John C. Calhoun were committed to constitutional interpretation through argumentation—both oral and written—because they understood fidelity to the Constitution to include much more than text alone.[64]

Congress’s power to regulate commerce among the states, with foreign nations, and with Native nations was a primary domain in which constitutional change occurred during the period. The novelty of interbellum constitutional thought was on full display in and around the Supreme Court when it took up questions of commerce.

What was the constitutional law of commerce in the interbellum period? To answer this question, we must consider not only the justices’ decisions, but also the lawyers’ arguments. For lawyers, too, were producers of constitutional discourse. The decisions that the justices issued provide only a partial map of the constitutionally possible. After all, in this era, Supreme Court arguments extended for days, with little or no written briefing. Moreover, the courtroom provided some of Washington’s finest entertainment and celebrity sightings. All the incentives were in place for a full explication of all plausible arguments.

Let us eavesdrop for a moment on a critical moment in the development of the constitutional law of commerce. The scene is the Supreme Court chamber in the basement of the U.S. Capitol, on February 7, 1824—two hundred years ago this year. Known to contemporaries as the “Great Steamboat Case,”[65] the dispute has come down to us as the case of Gibbons v. Ogden.[66]

When the four lawyers embarked on their oratorical displays, they projected them onto an existing constitutional landscape. That landscape began to change as soon as the arguments commenced. But the contest was more than simply a match between quick-witted debaters. It was a creative process that attempted to capture abstract concepts and render them concrete through application to concrete, albeit disputed, facts.

Ultimately, Chief Justice Marshall and his colleagues had to settle the narrow but weighty question of how many companies could run steamboats across the Hudson River. Was New York State allowed to grant a monopoly to one company? Or did a competitor’s invocation of a federal license allow it to operate over the same waterway and require the state monopoly to give way?

To answer these questions, the justices heard four days of arguments that reached well beyond the text of the Constitution to compass the fundamental nature of the Union.[67] The lawyers’ arguments aired theories spanning the realm of the legally and politically plausible. Indeed, they understood this to be their duty as faithful advocates for their clients’ interests.[68] Given these imperatives for the historical actors, reading the reports of the lawyers’ speeches provides a window into the scope of possible meaning at the time.

As the Gibbons case made its long way through the New York courts, the lawyers for the monopoly repeatedly offered a catalog of state regulations to demonstrate New York’s well-established practice of regulating commerce.[69] Their argument, put simply, was that the state had long regulated commercial activity like operating steamboats, and therefore there was no basis to invalidate the state monopoly.

The advocates for the monopoly characterized this type of local commercial activity as “intercourse.”[70] The usage was adopted by the state court judge, the great Chancellor James Kent, who in 1812 decided in favor of the monopoly. Kent reeled off a list of state commercial regulations, including “our Sunday laws, our rights of ferriage over navigable rivers and lakes, our auction licenses, [and] our licenses to retail spirituous liquors.” All these provisions, Kent concluded, were “but regulations of internal commerce” that happened to “affect[] as well the intercourse between citizens of this and other states, as between our own citizens.”[71] Local laws, internal commerce—all this was just “intercourse,” and it was the state’s business and not the federal government’s.[72]

But something changed on February 7, 1824, during the argument before the Supreme Court. William Wirt—the U.S. attorney general, appearing here in his private capacity on behalf of the challengers to the state monopoly— repurposed Kent’s term. As Wirt now framed it, “intercourse” was no longer the domain of ordinary state law. Rather, it was part of the definition of “commerce” as that term was employed by the Constitution:

That the regulation of commerce and navigation, includes the authority of regulating passenger vessels as well as others, would appear from the most approved definitions of the term commerce. It always implies intercommunication and intercourse. This is the sense in which the constitution uses it; and the great national object was, to regulate the terms on which intercourse between foreigners and this country, and between the different States of the Union, should be carried on.[73]

Wirt’s reframing, and the Court’s response to it, worked a fundamental change in constitutional meaning. To be sure, the categories of “trade,” “commerce,” and “intercourse” had long been connected. Samuel Johnson’s 1755 Dictionary, for example, had defined commerce as “intercourse; exchange of one thing for another; interchange of any thing; trade; traffick.”[74] But in borrowing the familiar word “intercourse” and re-clothing it in Article I’s language of congressional power, Wirt invested it with a new meaning that it had not had even a few days earlier.

In contrast to the everyday commerce that took place within New York and thus in the Union, this commerce was constitutive of the Union.[75] It was this commerce of the Union, fostered and protected by Congress, that held the states together. The alternative was a trade war—no mere phantasm, as Wirt and his co-counsel Daniel Webster had already noted, pointing to the hostile “acts of retortion” that Connecticut and New Jersey had passed in response to New York’s monopoly grant.[76] “[S]ir, if you do not interpose your friendly hand, and extirpate the seeds of anarchy which New York has sown, you will have civil war,” Wirt exhorted Marshall.[77]

The spectators crowded into the courtroom appear to have sensed that the meaning of these words was changing before them. North Carolina lawyer Henry Seawell, who was in the audience that day, described the scene in facetious terms in a letter to a colleague:

[A]ccording to the construction now contended for, and what it is more than probable will be supported by the Supreme Court, the States can do nothing, what it is not in the power of Congress to regulate; and there is scarcely any thing they can act upon at all – the trade, or commerce, being subject to the regulation of Congress, is supposed to draw after it almost all power of regulation, and according to a definition given to the word “Commerce” by the Atto. Genl. that it means “intercourse.” I shall soon expect to learn, that our fornication laws are unconstitutional.[78]

Seawell’s ribald drollery proved prescient when Marshall issued his opinion from the bench a few weeks later, on March 2, 1824. “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.”[79] “Commerce” and “intercourse” were now fused together, the former a category of federal power and the latter its definition.

Conclusion

As these episodes from the interbellum era suggest, the Americans who occupied the six decades between the Twelfth and Thirteenth Amendments did not feel bound to accept the textual Constitution as they inherited it. By de-sacralizing our view of how early-nineteenth-century Americans understood the Constitution, we discover that they were incessantly discussing ways to amend it. The fact that none of these proposals became formal amendments should not lead us to assume that the act of amendment itself was impossible. The proposed amendments’ focus on slavery, internal improvements, and the Supreme Court’s jurisdiction demonstrates the degree to which Americans of the period viewed amendments as tools to remedy a variety of structural constitutional defects. Ultimately, however, they saw the text of the Constitution as a relatively unimportant site of constitutional change. Instead, they prioritized argument, oratory, and practice.

Amendment valley was not barren; on the contrary, it was alive with argument and alternatives. Interbellum Americans were fixated on constitutional change, of which amendment was just one form. They were a restless generation, not content with fixation or stasis.

Copyright © 2024 Alison L. LaCroix, Robert Newton Reid Professor of Law and Associate Member, Department of History, University of Chicago. I am grateful to the organizers of the Thomas M. Jorde Symposium for inviting me to participate alongside Professor Jill Lepore and Professor Julie Suk. I thank Adam Davidson, Alma Diamond, Dan Klerman, and Farah Peterson, as well as participants in the University of Chicago Faculty Workshop and the Washington University School of Law Faculty Workshop, for helpful comments on drafts of this Essay, and Haven Lerner for excellent research assistance. I am also grateful for the support of the Mayer Brown Faculty Research Fund. Some portions of this Essay are adapted from my book The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024).

           [1].     Jill Lepore, The United States’ Unamendable Constitution, New Yorker (Oct. 26, 2022), https://www.newyorker.com/culture/annals-of-inquiry/the-united-states-unamendable-constitution [perma.cc/76A5-76EP].

           [2].     Id.

           [3].     Jill Lepore, The Philosophy of Amendment, 112 Calif. L. Rev. 2249 (2024).

           [4].     Id.

           [5].     Id.

           [6].     Id.

           [7].     Id.

           [8].     See Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms 2 (2024).

           [9].     Letter from Thomas Jefferson to Spencer Roane 1 (Sept. 6, 1819), https://www.loc.gov/item/mtjbib023618/ [https://perma.cc/32CZ-4793] (referring to the “true principles of the revolution of 1800 . . . as real a revolution in the principles of our government as that of 76”).

         [10].     See Bruce Ackerman, We the People Vol. 1: Foundations (1991).

         [11].     See LaCroix, supra note 8, at 1.

         [12].     See Alison L. LaCroix, The Twin Peaks Fable of American Constitutionalism, 105 B.U. L. Rev. (forthcoming 2025) (symposium on Jonathan Gienapp, Against Constitutional Originalism: A Historical Critique (2024); Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (2024).

         [13].     U.S. Const. amends. XII, XIII. For critical accounts of the role of amendments in modern American constitutional law, see Tom Ginsburg & James Melton, Does the Constitutional Amendment Rule Matter at All? Amendment Cultures and the Challenges of Measuring Amendment Difficulty, 13 Int’l J. Const. L. 686 (2015); Vicki C. Jackson, The (Myth of Un)Amendability of the US Constitution and the Democratic Component of Constitutionalism, 13 Int’l J. Const. L. 575 (2015); David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457 (2001).

         [14].     Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment 15 (2001).

         [15].     Id. at 6.

         [16].     Id. at 15 (“This belief [that the Constitution should remain static] stemmed, in part, from the symbolic role that the Constitution had played as the defining emblem of the nation.”). On the Constitution as a symbol, see Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (1986); John M. Murrin, A Roof Without Walls: The Dilemma of American National Identity, in Beyond Confederation: Origins of the Constitution and American National Identity 333–48 (Richard Beeman, Stephen Botein & Edward C. Carter II eds., 1987).

         [17].     Vorenberg, supra note 14, at 6. Vorenberg notes the “irony” that “slavery, the most antidemocratic institution sustained by the Constitution, unleashed one of the greatest democratizing forces to transform the Constitution.” Id. at 7.

         [18].     A vast body of scholarship examines the constitutional transformations, both structural and rights-based, brought about by the Reconstruction amendments. See, e.g., Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (2019); Harold M. Hyman & William M. Wiecek, Equal Justice Under Law: Constitutional Development 1835–1875 (1982). On Reconstruction as a problem of constitutional change, see generally Mark E. Brandon, The ‘Original’ Thirteenth Amendment and the Limits to Formal Constitutional Change, in Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Levinson ed., 1995); Richard A. Primus, The Riddle of Hiram Revels, 119 Harv. L. Rev. 1681 (2006).

         [19].     LaCroix, supra note 8, at 9.

         [20].     The following figures for the period between 1800 and 1860 were compiled from Herman V. Ames, The Proposed Amendments to the Constitution of the United States During the First Century of Its History, in 2 Annual Report of the American Historical Association for the Year 1896; H.R. Doc. No. 353 pt. 2, 54th Cong., 2d Sess., vol. 3550-2 (1897).

         [21].     Such measures continue to be the subject of public debate. See Presidential Commission on the Supreme Court of the United States, Final Report (Dec. 2021), https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.pdf [https://perma.cc/DK2G-NQM3].

         [22].     Ames, supra note 20.

         [23].     Lepore, supra note 3.

         [24].     In an 1819 case concerning a South Carolina tax on shares of the Bank of the United States, for example, Judge Abraham Nott of the South Carolina Circuit Court sketched a close and complementary relationship between amendments and judicial review. After querying “why this alarm at the exercise of the legitimate powers of the General Government?”—by which Nott meant Congress’s power to establish the Bank—he observed, “The jealousy of the States is ample means to prevent or resist it. If the powers of Congress are too great, they may be abridged by an amendment of the Constitution. If they are abused, they may be controlled by the judiciary.” See Bulow v. City Council of Charleston, 10 S.C.L. 527, 535 (1819) (Nott, J., dissenting).

         [25].     See Alison L. LaCroix, The Constitution of the Second Generation, 2013 U. Ill. L. Rev. 1775, 1782 (2013); see also Harriet Martineau, Madison, in Retrospect of Western Travel Vol. 1 189–99 (1838) (recounting Martineau’s interactions with Madison during this period).

         [26].     Letter from Martin Van Buren to James Madison (Aug. 30, 1826), https://founders.archives.gov/documents/Madison/04-04-02-0099 [perma.cc/P8Z2-7DU8]. On the significance of the Madison-Van Buren letters for understanding post-founding interpretive methods, see Alison L. LaCroix, The Interbellum Constitution: Federalism in the Long Founding Moment, 67 Stan. L. Rev. 397, 428 (2015).

         [27].     Letter from James Madison to Martin Van Buren (Sept. 20, 1826), https://founders.archives.gov/documents/Madison/04-04-02-0114 [https://perma.cc/N8L2-57J7].

         [28].     Id.

         [29].     Id.

         [30].     Id.

         [31].     John C. Calhoun, Exposition Reported by the Special Committee, in The Papers of John C. Calhoun Vol. X, 507, 521 (Clyde N. Wilson and W. Edwin Hemphill eds., 1977).

         [32].     Lacy K. Ford, Inventing the Concurrent Majority: Madison, Calhoun, and the Problem of Majoritarianism in American Political Thought, 60 J. Southern Hist. 19, 48 (1994).

         [33].     Calhoun, supra note 31, at 521.

         [34].     Id. at 521. Calhoun’s fellow South Carolinian Maria Henrietta Pinckney cited the Article V amendment process as itself a recognition of the states’ sovereignty. “Three-fourths of the States compose this august tribunal,” Pinckney wrote, “the ultimate arbiter, provided by the fifth article in the Constitution.” This tribunal alone had the power “to define anew the relations between the State and the General Government.” Maria Henrietta Pinckney, The Quintessence of Long Speeches, Arranged as a Political Catechism 23 (1830); see also LaCroix, supra note 8, at 224–35.

         [35].     Letter from William Wirt to Dabney Carr (Jan. 6, 1833) (on file in William Wirt Letters, Southern Historical Collection, Wilson Library, University of North Carolina at Chapel Hill, Folder 2).

         [36].     Id.; see Letter from William Wirt to Dabney Carr (Jan. 6, 1833), (published in John Pendleton Kennedy, Memoirs of the Life of William Wirt, Attorney-General of the United States  2:349 (1851).

         [37].     Letter from William Wirt to Dabney Carr, supra note 36, at 2:350.

         [38].     “Joint Resolution to Amend the Constitution of the United States,” Mar. 2, 1861, Gilder Lehrman Collection, https://www.gilderlehrman.org/history-resources/spotlight-primary-source/proposed-thirteenth-amendment-prevent-secession-1861 [perma.cc/3NRW-3KCS]. On this abortive “thirteenth amendment,” see generally Mark E. Brandon, The “Original” Thirteenth Amendment and the Limits to Formal Constitutional Change, in Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Samuel Levinson ed., 1995); Vorenberg, supra note 14, at 20–22; Norman W. Spaulding, Paradoxes of Constitutional Faith: Federalism, Emancipation, and the Original Thirteenth Amendment, 3 Critical Analysis L. 306 (2016); R. Alton Lee, The Corwin Amendment in the Secession Crisis, 70 Ohio Hist. Q. 1 (1961) [https://perma.cc/LC7A-6FD9].

         [39].     Abraham Lincoln, First Inaugural Address, March 4, 1861, in The Political Thought of Abraham Lincoln 177 (Richard N. Current ed., 1967).

         [40].     Vorenberg, supra note 14, at 21 n.43.

         [41].     1st Cong. Ch. 20 1 Stat. 73 § 25. Section 25 provided, in relevant part:

That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error.

         [42].     See Charles Warren, Legislative and Judicial Attacks on the Supreme Court of the United States – A History of the Twenty-Fifth Section of the Judiciary Act, Part I, 47 Am. L. Rev. 1, 11–13 (1913) [hereinafter Attacks, Part I]; Charles Warren, “Legislative and Judicial Attacks on the Supreme Court of the United States – A History of the Twenty-Fifth Section of the Judiciary Act, Part II, 47 American L. Rev. 161 (1913) [hereinafter Attacks, Part II]; see Mark A. Graber, James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25, 88 Or. L. Rev. 95, 109 (2009).

         [43].     Warren, Attacks, Part II, supra note 42, at 3–4.

         [44].     Id. at 4.

         [45].     Id.

         [46].     14 U.S. (1 Wheat.) 304 (1816).

         [47].     19 U.S. (6 Wheat.) 264 (1821).

         [48].     17 U.S. (4 Wheat.) 316 (1819).

         [49].     17 U.S. (4 Wheat.) 122 (1819).

         [50].     19 U.S. (6 Wheat.) 264 (1821).

         [51].     21 U.S. (8 Wheat.) 1, 3 (1823).

         [52].     22 U.S. (9 Wheat.) 1 (1824).

         [53].     22 U.S. (9 Wheat.) 738 (1824).

         [54].     See LaCroix, supra note 8, at 203.

         [55].     Warren, Attacks, Part II, supra note 42, at 176.

         [56].     Joint Resolution No. IV, in General Laws Passed by the Legislature of Wisconsin, in the Year 1859, Together with Joint Resolutions and Memorials 248 (1859); see Ableman v. Booth, 62 U.S. (21 How.) 506, 513–14 (1859).

         [57].     See William M. Wiecek, Murdock v. Memphis: Section 25 of the 1789 Judiciary Act and Judicial Federalism, in Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789 223, 227 (Maeva Marcus ed.,1992).

         [58].     Warren, Attacks, Part I, supra note 42, at 15.

         [59].     See id. at 32–33.

         [60].     Id. at 26.

         [61].     Id.

         [62].     Id.

         [63].     Id. at 27.

         [64].     The following discussion draws on LaCroix, supra note 8, at Ch. 3.

         [65].     Joseph Harvey, An Eulogy on the Life and Public Services of the Late Daniel Webster 6 (1852).

         [66].     22 U.S. (1 Wheat). 1 (1824); see LaCroix, supra note 8, at 132–58.

         [67].     See LaCroix, supra note 8, at 136.

         [68].     Id. at 137.

         [69].     See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 107 (argument of Thomas Addis Emmet).

         [70].     See id. at 66–67 (argument of Thomas Oakley).

         [71].     Livingston v. Van Ingen, 9 Johns. 507, 580 (N.Y. 1812).

         [72].     Id.

         [73].     Gibbons, 22 U.S. (9 Wheat.) at 182–83; see also LaCroix, supra note 8, at 150–51.

         [74].     Commerce, A Dictionary of the English Language, Vol. I (1755); see also Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1, 15 (2010) (discussing Johnson’s definition of “commerce”); Mark R. Killenbeck, The Original (?) Public (?) Meaning of “Commerce,” 16 U. Pa. J. Const. L. 289, 315 (2013) (same).

         [75].     See LaCroix, supra note 8, at 151.

         [76].     Gibbons, 9 Wheat. at 5 (argument of Daniel Webster), 167 (argument of William Wirt).

         [77].     Id. at 185.

         [78].     Letter from Henry Seawell to Thomas Ruffin (Feb. 12, 1824), in The Papers of Thomas Ruffin 1:292 (J.G. de Roulhac Hamilton ed.,1918). Ruffin later became chief justice of North Carolina.

         [79].     Gibbons, 22 U.S. (9 Wheat.) at 189–90.