Descent into the Maelstrom

My post, immediately below, about David Currie's latest article, "The Civil War Congress," caused me to look back at some entries I posted at Civil War Talk about Professor Currie's most recent book, The Constitution in Congress: Descent into the Maelstrom, 1829-1861. They hold up pretty well, if I do say so myself. Particularly because I saw a review of Descent into the Maelstrom at H-Net that was fairly mixed, I though I would re-post (with slight revisions) my thoughts about the book here.

David P. Currie, The Constitution in Congress: Descent into the Maelstrom, 1829-1861 (University of Chicago Press 2006), 322 pp. (256 pp. of text, plus appendices and index).

David P. Currie, a professor at the University of Chicago Law School, has been writing a series of books, entitled The Constitution in Congress, in which he has reviewed, generally in chronological order, the constitutional issues that have arisen in and been debated by Congress. In this latest volume, the fourth in the series, subtitled Descent into the Maelstrom, 1829-1861, Professor Currie focuses, for the most part, on the issues and debates in the pre-War period that are associated with the coming of the War. (The previous volume, subtitled Democrats and Whigs, 1829-1861, focused on other issues during the same period.)

The result is a fascinating survey of the constitutional issues raised in Congress on all manner of subjects during the thirty years leading up to the War. In treating each, Professor Currie’s approach is typically the same. After a brief introduction to the relevant background history (say, the events surrounding the annexation of Texas), Professor Currie zooms in on the precise events, substantive and procedural, that give rise to the constitutional issues and describes the positions taken and arguments made in Congress. Then – and this is what really makes the book enjoyable – Professor Currie generally steps back, evaluates the arguments made (and sometimes those not made but that should have been) and gives his own views. If you want an intelligent evaluation of the constitutional issues surrounding the way in which President Tyler went about annexing Texas, or whether the federal government could have abolished slavery in the District of Columbia, or whether secession was constitutional, you’ll find it here.

The book contains serious analysis, but this is no dour academic tome. To the contrary, Professor Currie’s crisp writing keeps things from bogging down and is laced with humorous asides that vividly convey both the author’s personality and why he finds the issues fascinating and still relevant. Professor Currie clearly had a lot of fun writing the book, and his enthusiasm comes through. For example, after summarizing President Buchanan’s position that secession was unconstitutional but that there was nothing he could do about it, Professor Currie comments:

“Shall I fly at him? Shall I tear him limb from limb – this wimp, this Quisling who thinks secession unlawful but Congress powerless to do anything about it? Peace, peace, old heart; not yet. There will be time for such a word. You have come to hear the members of Congress, not me; let us attend to them, and in the process I shall do a little strutting and fretting of my own.”

There are several caveats. First, the book is not a substitute for a general history of events leading up to the War. For that, David Potter’s magisterial The Impending Crisis is probably your best bet. Professor Currie focuses, as advertised, on those events that gave rise to constitutional disputes and arguments in Congress during the pre-War period. Nor is the book a full exploration of all constitutional events during the period. The book concerns Congress, not the Supreme Court, and so, for example, Dred Scott is not directly analyzed, although Professor Currie does discuss some of the issues in that case, because they also arose in Congressional debates (e.g., whether the Fifth Amendment barred Congress from forbidding slavery in the territories). Finally, because the book is a survey of a 30-year period, it does not purport to contain the final word on every issue. Professor Currie’s discussions of the arguments are uniformly intelligent, and he often is very clear as to where he comes out on them, but in the best professorly-socratic tradition, he sometimes suggests that issue-spotting is easier than issue-resolution.

On the other hand, the survey-nature of the book and Professor Currie’s clear writing style make the book potentially accessible to non-lawyers. A reader who has a working understanding of the period and who is interested, say, in the arguments back and forth about the Gag Rule, or President Polk’s use of his war powers, or slavery in the territories may well enjoy it. At $55, the book is a substantial investment, so potential readers who are not sure will probably want to see whether they can convince the local library to stock it.

For the right readers, this book is highly recommended. Non-lawyers should consider the following pros and cons:

First, Professor Currie takes his legal controversies as he finds them; the book is not solely devoted to issues that Civil War buffs may find of interest, such as slavery in the territories, secession and the like. A chunk of the book, for example, discusses issues related to Texas: Did President Tyler properly propose that Texas be annexed by joint resolution of Congress rather than via treaty? Did President Polk act constitutionally when he sent Zachary Taylor into the disputed area adjoining the Rio Grande with the hope and expectation that it would provoke war? In short, readers may find themselves interested in some topics and not in others.

Second, the good Professor has some legal insights that I find fascinating but that non-lawyers may conclude are ultimately trivial or irrelevant. For example, I had always assumed that the South's position in the "Gag Rule" controversy of 1836-44 -- demanding that Congress refuse to accept all petitions relating to slavery -- was blatantly unconstitutional. Professor Currie convincingly argues the contrary: Congressional refusal to accept petitions does not infringe the First Amendment right to petition. But that does not change the fact (as Professor Currie himself points out) that the South's position was a political and public-relations disaster that did tremendous damage to its cause. In this instance, the technical niceties may be beside the point.

For those who have not read previous volumes in the series, you can certainly read the books out of order. It depends on the period and issues you're interested in. That's exactly what I have done. "Descent into the Maelstrom" was the first volume I read. I've now gone back and read the first volume. The second and third volumes still await.