David P. Currie, The Constitution in Congress: Descent into the Maelstrom, 1829-1861

[elektratig]

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.

http://www.amazon.com/gp/product/022...lance&n=283155

[samgrant]

It's books like these that I put in my 'ShoppingCart' on Amazon, and then immediately click on 'save for later', not to wait for a better price, but to consider whether I can commit to such a heavy (contentwise, not by physical weight) book.

Give us with, no special interest in the law, the 'everyman', a good reason to invest in this book.

On rereading your fine review, I see you have somewhat answered my plea. Can you just expand a bit on this book's accessibility to us legal morons?

[ewc]

Electratig- Thanks for the review and comments on Professor Currie's book. A few questions:

The previous tome- The Whigs and Democrats, looks like a fine read as well. Is it less legal minded than what would be obviously so for the one discussing the Constitution? And would it therefore be an easier read for us, as Sam points out, legal morons?

Too, as you describe Professor Currie's learned jottings, the books appear serial in nature. can one read a later book intelligibly out of sequence, say going right to this Constitution and Congress tome, understanding of course your earlier qualifier that some knowledge of the times is needed and that the book is not geared to the less than interested reader?

Would appreciate any comments; i agree that the book looks fascinating, even for us of the legally impaired persuasion.

regards, ed

[elektratig]

Samgrant and ewc,

In all honesty, I composed the review as a tribute to the author, and more particularly to the publisher, who are willing to produce a series of books that can't possibly appeal to more than a handful of nut-jobs (of which I'm one, I guess). I am reluctant to recommend that you make such a substantial investment -- not because you're a "legal moron", Sam, but because I’m afraid you’ll be disappointed.

First, Professor Currie takes his legal controversies as he finds them, so I'm nervous that parts of it may not be of interest, not that you won't understand them. The book is not solely devoted to issues that we relate directly to the Civil War, 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, even if you're interested in some of the issues discussed, you may have no interest in others.

Second, the good Professor has some legal insights that I find fascinating but that you 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.

As to ewc's questions, yes, 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'm doing. "Descent into the Maelstrom" was the first volume I read. I've now gone back and am continuing with the first volume. I'm saving "Democrats and Whigs" for last as a sort of treat. It covers, I gather, the great constitutional battles between Henry Clay and Andrew Jackson over internal improvements and the Second Bank, among other things.

[samgrant]

Thanks for that advice, elektratig, I'll put this on the 'my way back machine' in which it will be way back before I put this book into play as I have so many others to get into.

[elektratig]

I'm reviving this thread because I discovered this morning that Professor Currie has published an article in the University of Chicago Law Review entitled "The Civil War Congress," in which he explores "congressional and executive interpretation [of the Constitution] . . . through the [Civil] war, from 1861 to 1865." It appears to be an article-length (96 pp.) version of the next installment of his "The Constitution in Congress" series. I have not yet read the article, but based on Professor Currie's track record it's a must-read if the subject interests you.

The best part is that the article is available online, for free (in PDF format). You will find the article here: http://lawreview.uchicago.edu/issues...all/Currie.pdf