Research Matters: Alison LaCroix on “The Interbellum Constitution and the Spending Power”

Research Matters is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Alison LaCroix, Professor of Law, is the author of “The Interbellum Constitution and the Spending Power,” Public Law and Legal Theory Working Paper No. 420 (find the abstract and a link to download the paper here). LaCroix focuses on the often overlooked period between the founding of our country and the Civil War, using the experience of the second generation of Americans as an illustration of the ever-changing nature of constitutional federalism and, by extension, the limits of an originalist approach by the Supreme Court. 

Q. How did this research come to be?

A. I’d been thinking for a couple of years about writing something about this internal improvements debate of the early 19th century. It struck me that my first book was on the late 18th century, and the founding period, and federalism, and it stopped more or less in 1801. I knew there was a lot more to talk about. And over the course of a couple of rounds of teaching Con Law 1 and American Legal History, I started to get more and more interested in this internal improvements debate, which really went from probably 1801 or 1817, certainly, up until the Civil War. It seemed like a series of debates all about federal power in action, in a period that I think has been somewhat neglected by legal and constitutional historians. I had been thinking about this for a couple of years, starting to gather sources, but not really starting to write. And then with the health care case last summer, there was so much in that decision about the spending power, and the question of, when can Congress impose conditions on the states and say, in exchange for federal funds, you must do x or y? And I knew I had seen analogs to that kind of deal in the internal improvements debates in the early 19th century, but that they were different in interesting ways. So that’s what made me think that now was the time to dig in and try to write the historical side, but then have a little bit to say about modern debates too.

Q. Why does this interest you?

A. I think we don’t really understand the early 19th century very well. Yes, there were many debates about the scope of federal power, but really, we tend to think of it just as this period between the founding and the Civil War. I think this period is so interesting because the generation of the founders was dying out. The last surviving major founder was James Madison, and he died in 1836. And a couple of others all died in the 1830s. So the people who were alive then, I think, thought, ‘the Constitution may come to an end if we don’t take up the mantle of interpretation.’ And yet the political and economic situation was changing around them, so they couldn’t just apply what the founders were doing, because there were technological changes with roads and canals and steamboats and the telegraph and then railroads. If you look at some of the key figures in the period, like Henry Clay, Andrew Jackson, John C. Calhoun, William Wirt, Martin Van Buren, and a lot of other lesser-known ones too, they really thought, on the one hand, that they were not the equals of the founding generation, but they also felt they had a task to not let the founders down, to keep it all running. Yet  they also felt like what they were confronting was something pretty new, from an economic and technological standpoint. So I think they also were thinking, ‘Do we still live in the founding moment? Can we do authoritative readings of the Constitution, or do we just have to interpret?’

Q. What can be gained by this research? What is the potential benefit?

A. To me, one of the things that’s interesting about this project is that, without struggling to fit historical debates into today’s boxes, I can make historical arguments that have obvious relevance to modern constitutional debates. The way people thought about how the states’ relationship with the federal government operated in the 19th century was very different from the way we think it operates now. In the specific area of spending, and trying to figure out what Congress can tell the states to do, what kind of deals it can offer, and when the states can resist, this period looks similar to our period, to today, but it’s actually quite different.

First of all, since federalism is an area of constitutional interpretation where the Supreme Court really likes to do originalism, at least the current Supreme Court, and originalism usually means looking at historical sources, these are historical sources that show how different things were permissible then and now. For example, Congress might say to the state of Illinois, there’s federal land in Illinois, and we’re giving it to you, Illinois, but you have to use it to build a railroad. Or, Congress would say to the state, we, Congress, are going to build a railroad on that land. The way we think those compare from a modern constitutional standpoint is different from how people in the 19th century  thought they compared. I think that comparison tells us that many of originalism’s assumptions about the way federalism operated in the early republic are inaccurate or incomplete, and this incongruity is an important fact for the Supreme Court to take into account.

In the broader world, this is research talking about how the Constitution came to be, and the Constitution is something that Americans, even nonspecialists, everyday ordinary people, think is theirs and think that they have the ability to interpret. The early 19th century, I think, is a moment when that common belief really got started and took off.