Alison L. LaCroix, University of Chicago Law School, has posted Dispatches From Amendment Valley, which is forthcoming in the California Law Review:
Professor Jill Lepore’s Jorde Lecture seeks to broaden our understanding of what qualifies as constitutional debate by looking to “the philosophy of amendment.” In this essay, I offer a different account of how amendments fit into U.S. constitutional history. I argue that the six decades between the ratification of the Twelfth Amendment in 1804 and the Thirteenth Amendment in 1865 did not, as is commonly assumed, constitute a gap in national-level constitutional change. Examining the full sweep of the constitutional landscape between the War of 1812 and the Civil War shows that the Constitution was undergoing profound shifts in meaning. These inter-amendment decades overlap with the period of my recent book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms. The central claim of the book is that the decades between 1815 and 1861 – which I call the “interbellum period” – witnessed profound constitutional transformations, especially regarding the nature of the Union. A crucial domain in which this change occurred was Congress’s power to regulate commerce among the states, with foreign nations, and with Native nations. This change occurred not through text, but through debate. Early-nineteenth-century Americans did not feel bound to accept the textual Constitution as they inherited it. By de-sacralizing our view of how early-nineteenth-century Americans understood the Constitution, we discover that they were incessantly discussing ways to amend it. Ultimately, however, they saw the text of the Constitution as a relatively unimportant site of constitutional change. Instead, they prioritized argument, oratory, and practice.--Dan Ernst
