In this episode, political theorist William B. Allen, editor and translator of a new edition of Montesquieu’s The Spirit of the Laws, and Alison LaCroix, author of The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms, join Jeffrey Rosen to explore the intellectual foundations—from Montesquieu and beyond—of constitutional interpretation from the founding to the Civil War. They also discuss historical practice and tradition in interpreting the Constitution throughout the interbellum period, and how this history applies to debates over constitutional interpretation today. This program was streamed live on June 17, 2024, as part of our America’s Town Hall series.
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Today’s episode was produced by Lana Ulrich, Tanaya Tauber, and Bill Pollock. It was engineered by David Stotz and Bill Pollock. Research was provided by Lana Ulrich, Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants:
William B. Allen is professor emeritus of political philosophy at Michigan State University. He previously served as chairman of the United States Commission on Civil Rights as well as the dean of James Madison College at Michigan State University. He is the author of The State of Black America: Progress, Pitfalls, and the Promise of the Republic (2022), George Washington: America's First Progressive (2008) and Rethinking Uncle Tom: The Political Thought of Harriet Beecher Stowe (2009). He is also the editor and translator of a new critical edition of Montesquieu’s The Spirit of the Laws (2024).
Alison LaCroix is the Robert Newton Reid Professor of Law at the University of Chicago Law School and an associate member of the University of Chicago Department of History. She has served as a member of the board of directors of the American Society for Legal History, and she is a member of the editorial advisory boards of the Journal of American Constitutional History and the American Journal of Legal History. Her latest book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (2024) focuses on U.S. constitutional discourse between 1815 and 1861.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources:
- Alison LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms, 2024
- Montesquieu, ‘The Spirit of the Laws’: A Critical Edition, edited and translated by W. B. Allen, 2024
- The Commerce Clause
- Alison LaCroix, “James Madison v. Originalism,” Project Syndicate (Aug. 26, 2022)
- 10th Amendment
- Andrew Jackson, Proclamation Regarding Nullification, (December 10, 1832)
- Martin v. Hunter's Lessee (1816)
- Preamble to the Constitution
Excerpt from Interview: William B. Allen emphasizes Madison’s commitment to national sovereignty via popular ratification, aligning with originalism. He highlights the dynamic decision-making process as central to balancing political unity with societal diversity.
William B. Allen: Let's start with the question of sovereignty itself. I think we can be over glib in separating out what was said at the convention and what happened subsequently. It is important that although Madison lost the state veto, he did succeed in assuring a ratification process for the express purpose of making it a national government. So he did not want ratification to be referred to the legislative authority of the states. That's absolutely fundamental from the point of view of the discussion of sovereignty or nationalism, if you want to put it in those terms. Madison never abandoned that line, and that's why he would repeal the tariff controversies in the '30s and he could repel the claims to his authority for the state's rights arguments that emerged in that period.
'Cause he still cued to the line he laid out in the constitutional convention. Therefore, it is important to put to places where he did have to make adjustments in perspective and what you refer to as the public view of the Constitution. That Madison, in a way, raised to a holy standard, that mustn't be treated as an equivocation on his part that must be treated seriously both theoretically and politically. He is not at all being disingenuous in 1816 when he says that these are the people who ratified the Constitution and therefore their view about what the Constitution means has greater authority than my individual view. That's an originalist argument. We need to understand that. Now, it doesn't mean when you refer to originalism that people do not continue to make decisions and constitutional decisions. That's why the dynamic process is so important, because the foundation of originalism is precisely the dynamic of decision making in the body at large.
The original Constitution seeks to create what I've described in one of my books as political homogeneity, but political homogeneity does not rule out the extraordinary diversity in the society at large. And the whole point, of course, is to equilibrate political homogeneity with the extraordinary diversity in the society at large. Madison never lost sight of that. I don't think Hamilton lost sight of it either. And I think it's important that Thomas Jefferson, though a strict constructionist with regard to constitutional theory as an administrator, used employed construction and did not overturn the Hamiltonian framework. So we have to pay attention to the actual practices. I love that emphasis in Professor LaCroix's work to the actual practices, the decisions made in the ways they were justified, not as departing from originalism, but being itself an expression of the demand of originalism itself. What we have to remember is that the most important aspect of originalism is the responsibility that evolves upon decision makers. That includes those in government, and it includes those people as sovereign themselves. It is an ongoing process of decision making, and that's what is most greatly in conformity with the original intent of the Constitution.
Excerpt from Interview: Alison LaCroix argues that the Supreme Court misuses history by treating it as straightforward interpretation when in reality, history reveals multiple meanings. She emphasizes the importance of respecting historical methodology in constitutional interpretation.
Alison LaCroix: I first would say historians doing what historians do is very different from doing what originalists do. So I think, every now and then there's a sort of news article or something, especially at the end of the Supreme Court's terms, especially last term, last spring around this time, history wins again at the Supreme Court. And I have to say I recoiled at that a bit 'cause I thought they're not, they're not doing history, they're doing appeals to history and the history and tradition standard. Now I know why they're doing it. I know there's an authority there that they're trying to seek hold of. But I guess I would say two things. I think the court treats history differently because they have a certain view or they take a certain view that anyone can do it.
And this is where it connects with plain meaning, modes of interpretation. Anyone can pick up a text and read it. The Constitution is written basically in our language. Anyone can do this. It is a transparent act of interpretation. We saw this from the late Justice Scalia, for instance, in District of Columbia versus Heller. He basically abandons the preamble to the Constitution in a sentence or two, and he says, doesn't really add anything, doesn't really mean much, doesn't tell us anything. If you look at the 18th and 19th centuries, the preamble to the Constitution was enormously powerful and held a lot of meaning for people. So I guess first, his history, real history would say there has to be some degree of interpretation. It isn't just obvious on the face of the document what it means. But second, I would say, okay, so now do I want every justice to be a historian?
Do I expect them to do that? No, I would say I, I would like them to have the degree of respect for history as a methodology that they express for other methodologies. So we know the chief justice at one point talked about sociological gobbledygook, but there's a certain sense that sociology, economics, these other fields are fields with methods that are not immediately accessible. Okay. So that would be a sort of appreciation of a methodology. What do I think they should do? I mean, I do think history is highly relevant to constitutional interpretation, but the thing is, when you look at history, you find more possible meanings, not fewer. They look at history, the originalist justices and tend to say, history will tell us the one meaning of the second amendment or the appointments clause, the 14th amendment. That's not what history does. It's gonna show several possible meanings, many of which may be very different from the ones on the table today. And that's what I think a really historically informed justice should be informed by. And then they might decide, my theory of judging says that I should care about other things, and that's also acceptable. I think it doesn't have to be the only method of doing conscientious adjudication.
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