Wednesday, May 14, 2014

Reid on "The Great National Highway Debate of 1830 and Congress as Constitutional Interpreter"

Charles J. Reid, Jr. (University of St. Thomas School of Law) has posted "Highway to Hell: The Great National Highway Debate of 1830 and Congress as Constitutional Interpreter." Here's the abstract: 
This Article focuses on the role of the Constitution in the 1830 Congressional debate over the Buffalo to Washington to New Orleans National Road. It takes as its inspiration David Currie's monumental study of the ante-bellum Congress as constitutional interpreter. It moves beyond Currie, however, in the intensity of its focus on a single congressional debate.

The debate over the National Road was largely a proxy for the larger struggles over slavery and sectionalism. The Road's supporters generally represented Northern or Western states and took a nationalist view of the Constitution. They understood the Union as an organic entity, a single nation, comprising a single People, united to attain large and shared objectives. They understood the Constitution as facilitating these objectives. They were bold in the various creative if not novel constructions they placed on the Constitution. They paid little heed to arguments about states' rights or limited and enumerated constitutional powers.

The opposition was centered in the South although it drew support from some Northern sympathizers. They viewed the highway as a threat to the Southern slave-based economy and mustered various constitutional objections to it. The Constitution was one of limited and enumerated powers, they argued, and it did not include the authority to construct highways. Similarly, they argued, the Constitution created a loose "confederacy" of sovereign states, united for only a few specifically identified purposes. States' rights was, on this analysis, the central organizing principle of the Constitution. In all of this, the great concern was with the preservation of an "agricultural" way of life, understood by all to refer euphemistically to plantation slavery.

It becomes apparent that the contest over slavery, which was certainly the greatest constitutional debate of the nineteenth century - and very possibly the greatest constitutional struggle of all time - was playing out principally outside the purview of the judiciary. It was taking place, rather, in the halls of Congress and the court of public opinion.
The full article is available here, at SSRN.

Hat tip: Legal Theory Blog

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