THE CONSTITUTION IN CONGRESS: DESCENT INTO THE MAELSTROM, 1829-1861

Vol. 16 No. 6 (June, 2006) pp.465-469

THE CONSTITUTION IN CONGRESS: DESCENT INTO THE MAELSTROM, 1829-1861, by David P. Currie. Chicago: University of Chicago Press, 2005. 344pp. Cloth. $55.00. ISBN: 0226129160.

Reviewed by Ken I. Kersch, Department of Politics, Princeton University. Email: kkersch[at] princeton.edu

David P. Currie, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago, has been engaged for many years now in the hard labor of compiling a comprehensive history of constitutional argument within the core institutions of American government. He began this project with a two-volume history entitled THE CONSTITUTION IN THE SUPREME COURT (Currie 1992; Currie 1994). He subsequently moved on to the somewhat less familiar territory of THE CONSTITUTION IN CONGRESS. Previous volumes were THE FEDERALIST PERIOD, 1789-1801 (Currie 1997), THE JEFFERSONIANS, 1801-1829 (Currie 2001), and DEMOCRATS AND WHIGS, 1829-1861 (Currie 2005). He has now published a fourth volume in the series, DESCENT INTO THE MAELSTROM, 1829-1861. While this volume covers the same time period as the previous one, the earlier book emphasized that period’s first part, taking the demise of Henry Clay’s American System as its central theme. The present volume focuses on the period’s second half, and on constitutional contention over territorial expansion and slavery. Needless to say, from a constitutional perspective, this period is of considerable interest, since, at the time, constitutional politics were at the core of “ordinary” politics. That politics, of course, ultimately devolved into “constitutional failure,” and Civil War (See Brandon 1998).

The book marches through the constitutional debates of the period taking place in Congress more or less chronologically. The issues of slavery and territorial expansion were, in most cases, closely intertwined. The country’s acquisition of new lands – lands which, it was understood, were likely to ultimately be admitted to the Union as new states – repeatedly raised the question of whether slavery would be permitted in the newly acquired territory. Slave owners viewed the question as implicating constitutional rights to property (in the form of “chattel” slaves). Rights to democratic self-government were also implicated, as the question arose whether such rights could be abrogated by the federal government, under its constitutional authority to make laws governing the territories, or whether, instead, that power to determine the status of slavery might be held by the new inhabitants of that land (or state). As southerners saw it, moreover, the addition of each new state (or potential state) was heavily freighted with implications for the “domestic institutions” of the original southern states themselves. Slavery might not have been economically viable within many of the newly acquired territories. But many southerners were profoundly disturbed by the likelihood that the [*466] addition of new states either hostile to slavery, or indifferent to it, would, in time, permanently tip a sectional balance of power in Washington that had been painstakingly calibrated since the Founding. If this came to pass, southerners understood that it would have broad-ranging effects, both on slavery in the original southern states, and on everything they as a region cared about distinctively in political and economic life. In this context, debates about the nature of the constitutional compact, constitutional rights, natural rights, federal powers, and the meaning of democracy, were at the core of what Americans cared about most, and constitutional argument was taken extraordinarily seriously. The specific disputes Currie covers – the reception of antislavery petitions in Congress, the efforts to bar abolitionist literature from the mails, the acquisition of Texas and the territories acquired in the Mexican War, the Fugitive Slave Question, the Wilmot Proviso, the Compromise of 1850, the Kansas-Nebraska Act, Bleeding Kansas, the Lincoln-Douglas Debates, and secession, amongst others – will, in many cases, be familiar to readers with a basic grounding in the history of the period. The book takes up issues other than slavery as well, including the Dorr Rebellion in Rhode Island, various disputes over the respective foreign relations powers of Congress and the President, and Mormon polygamy. Each is discussed in chapters broken into sub-headed sections by topic.

Currie has performed useful yeoman service in plowing through thousands of pages of the Congressional Globe (the predecessor to the Congressional Record) and culling from it what appear to be all the constitutional arguments made by members of Congress in the period. As Mitchell Pickerill has noted in a review of Currie’s previous volume in this series, there is much here besides congressional floor debates as well; for example, Currie often provides us with the positions taken by the Executive Branch, and charts the back-and-forth between Congress and the President over the meaning of the particular constitutional provision or principal at issue. DESCENT INTO THE MAELSTROM is a work of scholarship using original historical sources. Scholars will appreciate Currie’s extensive footnotes to these, which will provide a useful point of entry for those who hope to undertake their own original work in the period.

Currie’s account of what was said on the floor of Congress is inclusive not only of the most plausible of constitutional contentions, but also of some the most fanciful. Currie’s kitchen-sink approach has its virtues. But, in many cases, he is not particularly good at taking care to put these arguments in context. He prefers instead to take them on one-by-one as a judge, either praising or damning them. Currie’s lawyerly posture throughout is likely to annoy the more historically inclined, who may prefer knowing how a particular argument fit into a broader vision of a political party, or a particular political figure, or whether, for example, it might be related to the need to serve some constituency, or react to a political event, or to some social or cultural understanding, to whether Currie thinks [*467] the lawyer arguing at the bar before him has impressed the hard-nosed Professor of Law as an admirably subtle analyst of constitutional questions or, instead, as a worthless, damned fool.

Currie’s book may be useful. But readers should be warned that it is also, in many respects, bizarre. Currie is an extraordinarily prolific scholar. And, in DESCENT INTO THE MAELSTROM, it shows. Much of this book is not so much written as banged out. The prose is artless, plodding, and pervaded by clichés (“The fireworks began” (p.6); “No sooner was the ink dry” (p.20); “Pandemonium . . . ensued” (p.20); “The House was tied in knots” (p.20); “Politics makes strange bedfellows” (p.28) – to take only a few examples from the first thirty pages). Topic sentences are rarely put to their proper use in guiding the reader’s attention. The headings and sub-headings Currie has chosen are of little help in this regard, either. Chapter Two, for example, is entitled “South Carolina, Arkansas, and Liberia,” with the sub-titles “Stopping the Mails,” “Michigan,” “Arkansas,” “Colonization,” and “Exclusion.” Chapter Three is entitled “O Canada!” with one subsection entitled “McLeod.” If you want to know what any particular chapter or section is about, you will need to sit down and read it. In many places, one suspects that the author, instead of taking care to shape the analysis, has simply typed whatever happened to have been printed on his notecard. He tells us in one passage, for example, that “Morris of Ohio, Niles of Connecticut, Wall of New Jersey, Hubbard of New Hampshire agreed. So did King of Georgia, King of Alabama, Gundy of Tennessee, Kent of Maryland, and Henry Clay of Kentucky” (p.7). But he does not give roll calls in the text for most of the debates. And we have no idea from the discussion leading up to this tally who these people are. There is, to be sure, a perfunctory glossary at the back of the book with their birth date, death date, party affiliation, and years of service, if you want to look it up. But, given that Currie provides little context for assessing the significance of these attributes, what’s the point?

Then, as I have hinted above, there is that idiosyncratic (and, in many places, truly odd) authorial presence. Currie not only presents the various constitutional arguments (and other political decisions) made during the period under study, but hovers obtrusively above them, providing a running commentary, often in light of contemporary developments and outside touchstones that are wholly anachronistic. So: “Chairman Brezhnev would have been proud” (p.8); “On it face, the President’s [Andrew Jackson’s] initial proposal seems modest enough. Incitement to crime has never been considered high-value speech for first-amendment purposes. Holmes and Learned Hand both condemned it, and for good reason. Yes, I know about Brandenburg” (p.26); “As an interpretation of the supremacy clause . . . this is flat drivel” (p.45); “I don’t know how this argument strikes you, but I find it rather chilling” (p.97); “Still no dice, I think. It may have been dirty pool to smuggle a major land grab into an ostensibly innocuous boilerplate bill for the collection of customs [concerning the Texas border town of Corpus [*468] Christi], but it was no less the law for all that. It is the responsibility of Representatives and Senators to know what they are voting for” (p.109); “Pierce and Buchanan: two peas in a pod. A Pair of second-rate doughfaces at best” (p.127). To be sure, I found many of Currie’s snap judgments persuasive – he is manifestly a learned constitutional lawyer. Still, this is not what one expects to be distracted by in a work with ambitions to serve as a definitive scholarly reference.

Few, I think, will want to (or be able to) read this book through. Aside from the bad writing and distracting authorial presence (the latter of which might be defended as a failed attempt to liven things up), the book has no real theme or argument, aside from the contention that much of the constitutional argument of the period took place on the floor of Congress, and that that argument centered around questions of slavery and expansion. As such, there is no narrative thread to carry the reader along. The book’s value will be as a reference for readers looking for a descriptive account of the constitutional arguments advanced in Congress (and by other extra-judicial political figures) involving the particular political or constitutional controversy that happens to interest them. Readers will want to dip in and out, as the need arises. Currie’s cryptic chapter titles and sub-headings won’t make this easy. But the book does have an index.

There has been a growing interest in recent years amongst law and courts scholars in reviving the scholarly tradition that once recognized that constitutional debate and deliberation takes place, not just in the Court, but also in the nation’s populace and its political branches. A case can be made that they – and those with a substantive interest in these years – will find DESCENT INTO THE MAELSTROM worth having on their shelves.

REFERENCES:

Brandon, Mark E. 1998. FREE IN THE WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE. Princeton: Princeton University Press.

Currie, David P. 1992. THE CONSTITUTION IN THE SUPREME COURT: THE FIRST ONE HUNDRED YEARS, 1789- 1888. Chicago: University of Chicago Press.

Currie, David P. 1994. THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY, 1888-1986. Chicago: University of Chicago Press.

Currie, David P. 2001. THE CONSTITUION IN CONGRESS: THE JEFFERSONIANS, 1801-1829. Chicago: University of Chicago Press.

Currie, David P. 1997. THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD, 1789-1801. Chicago: University of Chicago Press.

Currie, David P. 2005. THE CONSTITUTION IN CONGRESS: DEMOCRATS AND WHIGS, 1829-1861. Chicago: University of Chicago Press. [*469]

Pickerkill, J. Mitchell. 2005. Review of THE CONSTITUTION IN CONGRESS: DEMOCRATS AND WHIGS, 1829-1861, Law and Politics Book Review 15: 954-958.

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