Supreme Court and is the author of The Ideological Origins of American Federalism.
LaCroix applied the "Page 99 Test" to her new book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms, and reported the following:
Page 99 lands a reader in the midst of Chapter 2, which focuses on a gripping but largely forgotten legal controversy over a ship that docked in Norfolk, Virginia, in 1819, and from which debarked three individuals described in court records as “persons of Colour” – likely free Black seamen who had joined the crew in a Caribbean port. The ship, a brig named the Wilson, and its owner and its captain ended up at the center of a federal-court case that came before two of the great judges of the early-19th-century American bench: U.S. district judge St. George Tucker and Chief Justice John Marshall (both of whom were also Virginians).Learn more about The Interbellum Constitution at the Yale University Press website.
Page 99, part of a chapter section titled “The Brig on Trial,” discusses Judge Tucker’s views on whether the Constitution gave Congress the power to regulate the migration or importation of free Black people into the United States. Tucker was “unmoved by arguments” pressed by the brig’s owner “against the constitutionality of the federal statutes” and “launched into a full-throated endorsement of the two species of congressional authority at issue in the case: the power to reinforce state law, and the power to regulate the migration and importation of persons.”
As this synopsis suggests, there is a lot happening on page 99. And the page nicely distills several of the main themes of the book. The subtitle of the book is “Union, Commerce, and Slavery in the Age of Federalisms,” and the focus is the period from 1815 to 1861. I call this the “interbellum period” because it falls between two wars: the War of 1812, and the Civil War. Constitutional history has tended to overlook this era for a number of reasons. First, it didn’t yield changes to the text of the Constitution – there were no constitutional amendments between 1804 and 1865. Second, because of this lack of change to the text, it’s easy to assume that nothing about the Constitution changed during this period. Third, the period appears to lack the grandeur of either the founding era or what the historian Eric Foner calls the “second founding,” the Civil War and Reconstruction. The interbellum period, by contrast, is filled with ugliness and tragedy, including the expansion of slavery, the forced “removal” of Native nations from their land, the rise of anti-immigrant sentiment, and the subordination of women. For all these reasons, the interbellum period is often – mistakenly – treated as what I term “constitutional flyover country.”
Page 99’s tale of the Brig Wilson is a vital piece of the book’s larger effort to recover this overlooked period in U.S. constitutional history. Moreover, the book focuses on stories and people, using narrative to build a rich picture of this complex, sometimes-rollicking, sometimes-violent era. The tale of the brig gives us larger-than-life characters such as the unforgettably named Captain Ivory Huntress, and it provides a new account of familiar figures like Judge Tucker and Chief Justice Marshall.
This forgotten episode also recasts the way that we understand American constitutionalism today. In modern constitutional law, the federal government derives much of its authority to regulate across a broad sphere – from highways to marijuana to healthcare to civil rights – from Congress’s commerce power. The standard understanding of the commerce power begins with the Supreme Court’s 1824 decision in Gibbons v. Ogden, a case involving steamboats in New York Harbor. But, as the case of the Brig Wilson shows, the law of the commerce power originated several years earlier, and it was deeply entangled with fraught and fascinating questions of race, slavery, maritime power, and the borders between state and federal authority.
--Marshal Zeringue
Posts
