The Carboniferous Constitution: Land Grabs and Land Grants in Bellicose America

Adolphe Jean-Baptiste Bayot, The Battle of Veracruz (1851)

Herewith the presentation that I will make at the University of New Mexico on September 17 in celebration of Constitution Day 2012:

Constitutionalism as statecraft is not confined to the founding of a nation. American history abounds with "constitutional moments" — epochal crises that generate enduring changes in the legal culture of the United States. Such moments do not consist solely of constitutional conventions, constitutional amendments, or even judicial interpretations of the Constitution. Statutes and treaties, especially if undertaken and understood as exercises in principled lawmaking, contribute mightily over time to the weaving of America's constitutional fabric.

In honor of the 225th anniversary of the United States Constitution, the 150th anniversary of the land-grant college system, and the 100th anniversary of New Mexico statehood, this presentation will focus on the legal developments that presaged and ultimately paralleled the ultimate constitutional crisis in American history: the Civil War. The Treaty of Guadalupe Hidalgo of 1848 (and its echo, the Gadsden Purchase) capped a long series of treaties that literally built the continental United States. These treaties also perfected the addition to the United States of the territories that would become the State of New Mexico. They represent the pinnacle of American constitutionalism and statecraft in what we may call America's Paleozoic Era, the four score years, minus one, that mark the temporal distance from Independence Hall to Appomattox Court House.

Guadalupe Hidalgo and the Gadsden Purchase were at once Omega and Alpha, as much the fulfillment of Manifest Destiny as harbingers of the Civil War. Once secession had split asunder the United States, the land grabs that these treaties effected gave way to the creation of the Department of Agriculture and the trinity of great land grant statutes signaled northern legislative supremacy during the Civil War: the Homestead Act, the Morrill Land-Grant College Act, and the Pacific Railway Act. Seen as a coherent legal progression, the land grabs of the Mexican War and the land grants of the Civil War comprise America's Carboniferous Constitution, the final episode of fundamental lawmaking in America at its most bellicose.

Update: I am pleased to report the University of New Mexico's press release on The Carboniferous Constitution: Land Grabs and Land Grants in Bellicose America.