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Alison L. LaCroix
Says More…

This week in Say More, PS catches up with Alison L. LaCroix, Robert Newton Reid Professor of Law at the University of Chicago and the author of The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms.

Project Syndicate: Texas has revived the age-old debate about American federalism by enforcing its own immigration policy. You recently wrote that many commentators have been “invoking the past to justify their positions” in that debate. But, as you warn in your new book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms, even scholars of constitutional law tend to misunderstand “the process of constitutional change,” as they focus excessively on “shocks and moments.” What does their approach miss, and what are the practical consequences of this misunderstanding?

Alison LaCroix: A majority of the US Supreme Court’s justices have embraced “originalist” and “textualist” methods of constitutional interpretation. Moreover, the Court recently developed what it calls a “history and tradition” standard for determining the scope of certain constitutional rights – most prominently, in the domains of reproductive rights and firearms regulation.

But while such approaches claim the authority of history, they are deeply ahistorical. The focus on the Constitution’s text means that attention is paid only to the discrete moments when that text changed. This disregards longer timeframes across which constitutional change has sometimes unfolded over the course of US history.