| Book Review | Law and History Review, 24.2

Book Review

David P. Currie, The Constitution in Congress: Democrats and Whigs, 1829–1861, Chicago: University of Chicago Press, 2005. Pp. vii + 346. $39.00 (ISBN 0-226-12900-4).

Scholars have filled the field of American constitutional history with examinations of the judiciary. David P. Currie's series The Constitution in Congress looks, instead, to the legislative and executive branches. As Congress, the president, and various executive officers and agencies tried to ascertain the limits of their authority, they contributed important precedents and interpretations for our understanding of the U.S. Constitution. Currie's latest volume in the series chronicles economically related controversies during the age of Jackson, showing how Democrats gradually overturned Whig attempts to generate economic growth and build national infrastructure.

Currie painstakingly picks apart the constitutional ambiguities raised by a host of Congressional policies. The first part of his account addresses Whig leader Henry Clay's "American System" by discussing internal improvements, the national bank, the disposition of public lands, and the protective tariff. The second part delves into an assortment of sometimes arcane disputes ranging from prayer in Congress to the federal patronage structure to the presidential veto power. Throughout these forays, Currie offers a judicious, balanced assessment of both sides of every issue, eventually weighing in with his own opinions (which generally seem to indict the extreme strict constructionism prevalent in the nineteenth century [e.g., 220]). For example, Currie suggests that President Andrew Jackson stood on strong ground in arguing that each branch of the federal government was entitled to interpret a law's constitutionality for itself (67, 116–17). This conclusion may not seem self-evident in an era when judicial review has become established.

Originalism—the extent to which historical actors harked back to the Framers' intentions in debating constitutionality—frames this account. The single-mindedness with which senators and representatives of the early republic sought to divine their predecessors' designs can seem parochial or antiquarian today, though it remained fundamental to constitutional interpretation during the antebellum decades. Andrew Jackson, for instance, argued that federal subsidies for improvements to rivers and harbors were constitutionally permissible, though funds allocated to inland roads and canals were not (15). Such fine parsing of the constitutional language was typical of politicians before the Civil War, most of whom discerned fatal dangers to the republic stemming from a central government that consolidated too much power over the states.

Although we know why certain events in the American past took place, we do not usually remember the contemporary constitutional reasoning undergirding them. Currie fills in the lines of these debates. Almost all accounts of Nullification in South Carolina demonstrate that Palmetto hotspurs viewed the tariff as unconstitutional, for example. Yet few of them consider extensively, as does Currie, that the Nullifiers also challenged the U.S. Supreme Court's right to hear state cases on appeal, contradicting the Judiciary Act of 1789 (109). The orators and lawyers who populated Congress in the nineteenth century spent much of their time in such logical sparring, with serious consequences for federal-state relations and the economic maturation of the United States.

Some especially interesting debates punctuate what sometimes seems like a laundry list of discussions. When President William Henry Harrison died unexpectedly in 1841, Vice President John Tyler succeeded him. Several members of Congress insisted that Tyler only exercised the "powers and duties" of office, but was not truly the president. Tyler's allies quashed this early threat to an orderly presidential succession. Fifteen years later, Representative Preston Brooks of South Carolina assaulted Massachusetts Senator Charles Sumner on the Senate floor. But neither house of Congress could agree on its power to punish the perpetrator, and Brooks went free. Senators argued that only the House possessed the jurisdiction to discipline its own members, while representatives retorted that the Senate should penalize offenses inflicted upon its members (212–19). Sometimes the narrowness of constitutional interpretation in this period led to absurd results.

For all its comprehensiveness, Currie's book suffers from two flaws. First, although the initial section on Clay's "American System" is well structured, Part Two could have benefited from a tighter organizing rubric or narrative flow. It reads like an encyclopedic list of assorted but disconnected debates and is, in fact, entitled "The Kitchen Sink" (121). Second, although the author's colloquial style should make the volume more accessible, I found it tiring after several chapters. Surely there is a more elegant, though perhaps less lucrative, way to end the book than "See you in volume four!" (279). Apart from these stylistic quibbles, Currie's visit to the Jacksonian Congresses will serve as an invaluable reference for scholars of American legal, political, and constitutional history.

Yonatan Eyal

Harvard University

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