The interbellum Constitution: federalism in the long founding moment.

• Author: LaCroix, Alison L.

INTRODUCTION I. THE MODERN SPENDING POWER. II. THE NINETEENTH-CENTURY SPENDING POWER: THE CASE OF INTERNAL IMPROVEMENTS A. The Bonus Bill: Madison's Presidential Finale (1817) B. Roads I: Bargains with the States (1817-1822) C. Roads II: Money Versus Land (1826-1830) D. Roads III: Land to the States, Charters to the Corporations (1850) III. THE LOST HISTORY OF THE SPENDING POWER? CONCLUSION INTRODUCTION

Time and experience have verified to a demonstration, the public utility of internal improvements. That the poorest and most thinly populated countries would be greatly benefitted by the opening of good roads, and in the clearing of navigable streams within their limits, is what no person will deny.... The only objection is to paying for them; and the objection to paying arises from the want of ability to pay.

--Abraham Lincoln, 1832 (1)

The constitutional landscape of the early nineteenth century, roughly between the end of the War of 1812 and the beginning of the Civil War, was dramatically different from that of the twenty-first, or even the twentieth, century. Even in the realm of textual provisions that have not changed since the 1790s, such as Article I's enumeration of Congress's powers or the Tenth Amendment's reservation of powers to the states and the people, the foundational assumptions--and the resulting worries and preoccupations--of what this Article terms the "interbellum" period proceeded from premises that must be understood as distinct and to some degree alien from modern ones. The constitutional text is the same, but the modes of interpretation that contemporaries used were different, as were the basic questions they were asking the text to answer. The words of Article I and the Tenth Amendment have not changed, but the surrounding universe of constitutional possibility has. (2)

Given these differences, why are nineteenth-century constitutional debates relevant to modern constitutional thought? Because the landscape of constitutional possibility is perpetually changing, and the change in each moment in forms, and indeed shapes, the contours of the constitutional landscape in subsequent moments. Yet the landscape of each remains distinct, and in some cases appears incompatible, when one attempts to reconcile cases and doctrines across eras. Early nineteenth-century Americans exemplified this point. Their writings routinely expressed both a sense of vigorous participation in the founding of the Republic and a gnawing worry that they had been born too late, and too undistinguished, to wear that mantle comfortably. (3) They viewed themselves as both a special cohort of energetic enactors of their forebears' plans and a lesser generation of Founders manques. (4)

This point is a historical one--it attempts to explain the actions and motivations of historical actors. But concerns of historiography and constitutional interpretation also offer important reasons to examine the early nineteenth century. From a historiographical perspective, focusing on the competing narratives that scholars have offered, the period is ripe for reexamination. Many of the dominant accounts are several decades old, or they pay insufficient attention to constitutional thought. Instead, they emphasize political or economic factors: the "age of Jackson"; (5) the "market revolution"; (6) the "rise of American democracy"; (7) the "revolution of communications." (8) These stories fail to recognize one of the most significant markers of the era: the relentless focus of legal elites, politicians, and ordinary people on the Constitution. This interbellum period witnessed the emergence of the Constitution as the preeminent organizing lens through which Americans viewed political and legal questions. (9) One reason for the period's relative neglect in legal history is the emphasis of constitutional law scholarship on the Founding period and Reconstruction, which has meant that the period between those watershed events has not received due attention.

But this neglect is misplaced. The early nineteenth century is enormously significant for American constitutional law, and in particular for the constellation of related doctrines concerning congressional power that we now place under the general heading of "federalism": the spending power and the anticommandeering principle of the Tenth Amendment. (10) The period between roughly 1817 and 1851 witnessed a series of sustained and contentious public debates about the federal government's power to fund public works projects--"internal improvements" in the parlance of the day. These projects included roads, canals, harbors, lighthouses, and, later, railroads. (11) The central issue was the proper scope of Congress's power in relation to the states in the federal sys tem. Unlike recent challenges to federal regulation that arguably interfere with state sovereignty, (12) however, the nineteenth-century controversy was not framed in terms of the states' power to resist encroachments by Congress. Rather, the debate turned on an entirely different conception of state sovereignty from the one employed in modern case law--a conception with equally firm roots in the Founding period.

As I will demonstrate, the principal factors in much of the Supreme Court's modern federalism jurisprudence were largely absent from, or irrelevant to, the debates over the practical meaning of federalism in the early nineteenth century. (13) The assumptions of unwaivable, monolithic state sovereignty and perpetual, systemic federal-state tension that have underpinned the majority opinions in many of the Court's federalism cases since the 1980s are difficult to trace to the Founding period or the early nineteenth century. As the controversy over internal improvements illustrates, crucial interbellum constitutional debates about federalism unfolded in the political branches: Congress, the presidency, and the state legislatures. At issue was the scope of legislative power. Moreover, the debates included the following key themes: state consent; distinctions among Congress's powers to appropriate funds for internal improvements, to execute the improvements itself, and to transfer the public lands to the states for the purposes of executing the improvements; and the role of the federal government as proprietor of the public lands.

Today, the mechanism of the spending power drives essential gears of the federal machine. (14) The debates over internal improvements offer a nineteenth-century lens on that power that highlights the differences between interbellum and millennial constitutional thought. The internal improvements controversy is thus both analogous and disanalogous to modern debates on the practical implementation of federalism principles. As I will show, interbellum constitutional thought was generally wary of consolidated federal power over public works projects, preferring instead to structure such projects as cooperative federal-state efforts. In contrast, modern constitutional law doctrine and federalism commentary often take the opposite approach: the federal government's enumerated powers under Article I, where appropriate, are the preferred structural route for such projects, and indirect routes via state cooperation are disfavored. (15) As an interpretive matter, to the extent that modern case law relies on a particular substantive concept of federalism that has been consistent since the Founding, the internal improvements example urges us to rethink that notion. Since the earliest days of the Republic, federalism has been an unstable and contested concept, worked out through the meshing of theory and practice. (16) By highlighting nineteenth-century understandings of the spending power, the internal improvements debate demonstrates the dynamic nature of federalism in practice.

As the Supreme Court's recent federalism decisions demonstrate, a version of state consent continues to be relevant to conditional spending programs, insofar as the Court is now willing to police the boundary between a conditional and a coercive program. (17) With the return of coercion to the center of the spending power analysis, consent is still somewhere in the background of federalism case law. But the current Court's renewed emphasis on coercion is distinct from early nineteenth-century commentators' focus on state consent. In short, the post-National Federation of Independent Business v. Sebelius (NFIB) coercion inquiry is simply not the same as the interbellum consent inquiry. Today, we do not think of consent as having much to do with, or any significant bearing on, Congress's direct regulatory power under Article I. To the extent that recent federalism doctrine focuses on coercion, the inquiry is confined to conditional spending programs--i.e., bargains with the states, often in situations in which Congress lacks the power to regulate directly under Article I. In the early nineteenth century, by contrast, the issue of state consent was closely tied to Congress's primary powers over commerce, (18) taxing and spending, (19) post offices and post roads, (20) and the public lands. (21) Even though NFIB returned coercion to the center of the conditional spending inquiry, state consent is still not a defense for Congress against an alleged violation of state sovereignty under the Tenth Amendment. (22) Rather, recent case law recognizes the role of consent only by searching for its opposite, coercion. Early nineteenth-century federalism doctrine thus differed from the modern version in two important ways. First, interbellum federalism tied the consent inquiry to direct congressional regulation as well as to conditional spending programs. Second, interbellum federalism did states the courtesy of defining consent capaciously, instead of focusing obsessively on the potential coercive effects of congressional regulation. In these vital respects, the landscape of federalism looked very different in the early nineteenth...