Alison L. LaCroix

What If Madison Had Won? Imagining a Constitutional World of Legislative Supremacy

Identifying the proper degree of federal supremacy and the best means of building it into the constitutional structure were central concerns for many members of the founding generation. At the Constitutional Convention, James Madison proposed granting Congress the power to veto state legislation. Madison’s “negative” was intended to connect Congress and the states in a single compound legislature, giving Congress the power either to veto or to ratify by silence the acts of state legislatures. The negative failed to gain the approval of the convention delegates, however, and they instead chose to build federal supremacy into the Constitution via the judiciary-centered mechanisms of the Supremacy Clause and Article III. This essay asks what would have happened if Madison’s negative had carried the day, and the Constitution had implemented federal supremacy by way of a legislative rather than a judicial device. One potential answer is that the negative should be understood as the functional equivalent of modern preemption doctrine. Had the negative been incorporated into the Constitution in 1787, however, the combined force of the negative’s distinctive characteristics might well have led not to a stronger union but to forceful resistance to federal power by diverse state legislatures in a variety of circumstances. Two nineteenth-century case studies illustrate this point: the controversy over the Bank of the United States, and the debate over Congress’s power to supplant state legislation in the area of interstate commerce. In contrast to Madison’s and many modern commentators’ understanding of the negative as a highly centralizing mechanism, these case studies show that the negative would likely have led to fragmentation and disintegration between the federal center and the state peripheries long before the antebellum sectional crisis.

The New Wheel in the Federal Machine: From Sovereignty to Jurisdiction in the Early Republic

The years between 1787 and 1802 witnessed a transformation in American federal theory: from the focus on legislative authority that had occupied constitutional thinkers since the colonial period to a new emphasis on jurisdiction and a corresponding institutional preoccupation with courts. This shift is evident in the decades-long debate concerning the nature and scope of the federal judicial power, which saw repeated efforts by jurists and statecrafters to establish the proper jurisdictional arrangement to mediate between the multiple levels of government set forth in the Constitution. The fruits of these struggles to cement the practical and ideological meanings of federalism were the judiciary acts of 1789 and 1801. The two acts have received remarkably disparate treatment from scholars, with the 1789 act heralded as the basis of the federal judicial system and the 1801 act largely regarded as an embarrassment notable only for its role in the partisan conflict surrounding the election of 1800. Instead of lionizing the 1789 act and attempting to excuse or dismiss the 1801 act, however, I read the two together to offer new insights into these crucial decades. In the 1801 act, Federalists sought to revive the colonial idea of subject-matter jurisdiction by establishing broad federal jurisdiction, including granting arising under jurisdiction to the federal courts and easing the requirements for removal of cases from state to federal court. The election of 1800 and the ensuing repeal of the 1801 act, however, spelled the demise of this idea of jurisdiction and a return to the type of concurrence and overlap among levels of government that had characterized the system set up by the 1789 act. As a chapter in my forthcoming book on the history of the American federal idea, this essay challenges the assumption underlying some modern federalism scholarship that nationalization through the federal judiciary is a relatively new, post-1937 phenomenon. My argument demonstrates the anachronistic nature of such assumptions by highlighting the centrality of the judiciary to early republican debates concerning the scope and extent of national power.

The Authority for Federalism: Madison's Negative and the Origins of Federal Ideology

The Philadelphia convention of 1787 looms enormous in many accounts of U.S. constitutional history, serving as the set piece in which various and muddled worldviews, theories, interests, and allegiances gelled into a coherent science and structure of politics. The Convention thus becomes time zero in the chronology of U.S. political and constitutional development, a finite and forward-looking first moment defining, for good or ill, the terms according which subsequent debates regarding the nature of U S. government would be conducted.

The Mood of the Cave: The Intellectual Legacy of Ideological Origins

4. Bernard Bailyn, The Ideological Origins of the American Revolution (1967; enlarged ed., Cambridge, MA: Belknap Press of Harvard Univ. Press, 1992), 22–23. Bailyn’s approach is strikingly anticipated in Edmund Burke, “On Moving His Resolutions for Conciliation with the Colonies” (March 22, 1775), in Edmund Burke: Pre-Revolutionary Writings, ed. Ian Harris (Cambridge: Cambridge Univ. Press, 1993). Burke’s account of the American “temper” or “spirit” was simply paraphrased in David Ramsay, The History of the American Revolution, 2 vols. (Philadelphia, 1789), 1:29ff.

A Singular and Awkward War: The Transatlantic Context of the Hartford Convention

This essay argues that the Hartford Convention of 1814–15 unfolded as part of a wide‐ranging and vibrant debate concerning the role of the United States in the turbulent Atlantic community of the early nineteenth century. The author’s approach to the convention stands in sharp contrast to those of other scholars, many of whom have treated the convention as either the last gasp of the Federalist party or as a manifestation of New England’s insularity during the War of 1812. This orthodox view fails to account for the distinctly international quality of the convention. Review of newspapers and pamphlets produced in and around Boston, the intellectual and political center of New England, during the period between late 1814 and early 1815 suggests that for all their ideological differences, both Republicans and Federalists in Massachusetts understood the convention as attempting to negotiate a place for New England in the newly formed international relations triangle that comprised Britain, France, and the United States.