Stephen Holmes
[October 28 DRAFT]
To “Facilitate Future Invasions of the Remainder”:
Westward Expansion and its Natural Enemies in the Federalist Papers
No Man can, by Care taking (as the Scripture saith) adde a
Cubite to his Stature, in this little Modell of a Mans Body: But in
the Great Frame of Kingdomes, and Common Wealths, it is in
the power of Princes, or Estates, to adde Amplitude and
Greatnesse to their Kingdomes. For by introducing such
Ordinances, Constitutions, and Customes, as we have now
touched, they may sow Greatnesse, to their Posteritie, and
Succession.
- Francis Bacon1
Was the Constitution of 1787 framed with a general theory of constitutions and constitutionalism
in mind? The prospect of providing a capsule account of all the half-spoken theoretical assumptions of
several dozen individuals whose minds were mixed, whose ideas were evolving, and who disagreed
among themselves is, to say the least, remote. But it nevertheless seems safe to say that the majority of
delegates to the Federal Convention thought it worthwhile to invest their time in constitution-making
because they saw constitutions as instruments of government and the existing charter as a woefully
inadequate tool for achieving a series of important, mostly agreed-upon ends. Their constitutionalism was
basically strategic, therefore, designed in the hope of enhancing the combined problem-solving capacity
of the three branches and two levels of government. They fought over how their government should be
organized, moreover, because of what they wanted their government to do. Primarily concerned with
enabling government to act effectively, they wished to incapacitate government only selectively,
secondarily, and for the most part instrumentally. When James Madison wrote of “communities united
for particular purposes” (#39),2 he was identifying the principal task of the Constitution not with checking
power but rather, in John Jay’s words, with “combining and directing the powers and resources of the
whole" (#4) toward the achievement of collective aims. Alexander Hamilton was neither speaking solely
for himself nor for some energetic-government fringe, therefore, when he identified “the restraints of a
federal constitution” (#7) with restraints that the proposed federal government was constitutionally
authorized to impose on states, corporations and private individuals, not primarily and certainly not
exclusively with restraints to be imposed on the federal government itself.
My aim in what follows is to explore the theoretical origins and implications of the Framers’
fundamentally enabling (not fundamentally restraining) constitutionalism by focusing on the way the
1787 Constitution was consciously designed to facilitate territorial expansion and Indian dispossession.
The structure erected in Philadelphia was meant not merely to house but also to systematize, reconcile,
and coordinate the expansionist aspirations of regions, states, corporations and individuals. The
nationalist argument that America should “be one nation, under one federal government” for “all general
purposes,” includes, implicitly, the assumption that continental expansion and Indian dispossession,
among other aims, are general purposes in “the interest of the people of America” (#2). The Framers newmodeled the faltering federation they had inherited in order to help their countrymen seize the
opportunities for power and prosperity latent in the vast still-unsettled frontier. Expansion was a principal
Francis Bacon, “Of the True Greatness of Kingdoms and Estates,” The Essayes or Counsels, Civill and Morall (Cambridge,
Mass.: Harvard University Press, 1985), p. 99.
2 All in-text citations are to numbers of the Federalist Papers.
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not secondary aim. As Madison candidly explained, "the immediate object of the federal Constitution is
to secure the union of the thirteen primitive States, which we know to be practicable; and to add to them
such other States as may arise in their own bosoms, or in their neighborhoods, which we cannot doubt to
be equally practicable" (#14). In this sense, the Constitution was meant to promote, not obstruct, the
legendary “encroaching Nature of Power.”3 Or rather, it was framed to promote the encroaching nature of
American power in order to fend off and drive back what its creators identified as the encroaching nature
of British, Spanish, and Indian power.4
The key constitutional principle facilitating territorial expansion and Indian dispossession was the
Equal Footing Doctrine. This principle does not appear in the text of the Constitution. In fact, the
proposal to include it at the Federal Convention in Philadelphia was defeated on August 29, 1787 by a
vote of 9 to 2.5 Yet despite this verbal excision, the Equal Footing Doctrine was, for all practical
purposes, constitutionally entrenched by a combination of Art. IV, Section 3 (“New States may be
admitted by the Congress into this Union”), Article I, Section 3 (“The Senate of the United States shall be
composed of two Senators from each State”) and Article IV, Section 1 (“Full Faith and Credit shall be
given in each State to . . . every other State”). That this entrenchment was purposive, not accidental, is
strongly suggested by the Northwest Ordinance, passed by the Congress of the Confederation on July 13,
1787, in coordination with leading delegates to the Philadelphia Convention meeting at precisely this
time. Concerning the states to be eventually carved from of the Ohio lands, the 1787 Ordinance declares:
“whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be
admitted, by its delegates, into the Congress of the United States, on an equal footing with the original
States in all respects whatever.”6
Newly admitted states with only 60,000 inhabitants were guaranteed the same number of Senators
as the most populous seaboard states. This seems surprisingly generous on the part of the Congressmen
who approved the Northwest Ordinance, all of whom, needless to say, were easterners. But it is unlikely
to have been an act of selfless altruism. The Equal Footing Doctrine forbids the states of the Union from
acting through Congress’s admissions power to impose restrictions on new states that are not to be
applied to themselves as well. To understand why the majority of the delegates to the Federal Convention,
too, implicitly embraced this framework, we must examine what shared and rival purposes they assumed
it would enable them, jointly and severally, to achieve. To understand why their successors as well long
adhered to the principle, we also need to explore why the Equal Footing Doctrine was seen, over time, as
continuing to serve the common or conflicting political goals of influential social forces. The admission
of Tennessee into the Union in 1796 “on an equal footing with the original States in all respects
whatever” was an early clue that subsequent generations were going to treat the Equal Footing Doctrine
as if it were a deeply entrenched constitutional principle. The Doctrine was further enshrined as states
beyond the Old Northwest, such as Louisiana and Texas, were admitted under the same condition.
Although I have thus far been speaking loosely of “entrenchment” to signal the crucial
importance of the implied Equal Footing Doctrine to the Framers’ Constitution, I am not entirely
comfortable with the implications of the concept. Entrenchment implies hostility to change and obstacles
to power, while the Equal Footing Doctrine was tacitly endorsed not to block but to systematize a chaotic
process of western settlement, and not to confine but to swell American power by binding the new
territories perpetually to the original states. The Equal Footing Doctrine remained politically anchored,
John Trenchard, Cato’s Letters, No. 115 (February 9, 1723); some of Madison’s recyclings of the platitude (“power is of an
encroaching nature” and “the encroaching spirit of power”) occur in Federalist #48.
4 The Articles had proven to be an inadequate constitutional framework, wrote Hamilton, because they had failed to provide “a
safeguard against foreign encroachments” (#15).
5 The Records of the Federal Convention, edited by Max Farrand (New Haven: Yale University Press, 1966), Vol. II, August 29,
p. 454.
6 An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio, Article 5.
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metaphorically speaking, so long as the system for taking piecemeal control of the Western territories by
following the blueprint set forth in the Northwest Ordinance continued to function neither perfectly nor
consistently but well enough. The Constitution’s unprecedented harnessing of self-government in the
states to nationalistic expansionism continued to be accepted because it continued to serve powerful (not
necessarily harmonious) interests of well-placed members of subsequent generations, not because it was
super-glued to a superannuated piece of constitutional parchment.
That the Framers thought of the Equal Footing Doctrine in basically instrumental not normative
terms can be made clear, I believe, by examining the pre-history of the principle in the Albany Plan of
1754, in the Royal Proclamation of 1763, and in the Congressional debates surrounding the drafting of the
Articles of Confederation. But before exploring the powerfully pragmatic function persistently attributed
to the Equal Footing Doctrine in the decades before 1787, and then proceeding to document how Madison
and Hamilton in particular consciously built upon that prior understanding, we need to dig a bit deeper
into both the history and the theory of enabling constitutionalism.
“Primitive Constitutions”
The core meaning of “to constitute” is neither to constrain political power for the sake of
individual liberty nor to entrench limits on the behavior of government officials in the name of moral
norms or prudential concerns. What “to constitute” signifies, in the first instance, is to set up. The word
“constitution,” according to Diderot’s Encyclopédie, “signifie en general établissement de quelque
chose.”7 What the Philadelphia constitution-makers aimed at, en particulier, was the “erection of a new
Government” (#81). During the ratification debates, they worked tirelessly for “the establishment of the
comprehensive system” (#14) that they had framed. Virtually without argument, then, they assumed that
constitution-making was state-building by another name.
They may not have suffered “a blind veneration for antiquity” (#14), but members of the
Framers’ generation freely emulated not only Roman pen names and architectural styles but also ancient
constitutional practices whenever the latter seemed serviceable in current political circumstances.
Because they identified the “constitution of government” (#83) not with the protection of individual rights
but with “the organization of the government” (#85), the Framers took it for granted that constitutionalism
was coeval with the emergence, in the far-distant past, of territorially anchored political societies
organized to defend their boundaries against marauding tribes.8 The radical innovation of, say, the
Massachusetts constitution-makers was not in constitutional ordering itself but rather in their method for
framing and ratifying the constitution, by committee and popular vote. So far as constitutionalism goes,
American exceptionalism consisted only in “the improvement made by America on the ancient mode of
preparing and establishing regular plans of government” (#38). The Philadelphia Constitution was fully
American in this procedural sense. Substantively, its “interior structure and regular operation” (#18)
owed a great deal to ancient plans of government, especially but not exclusively to that of the most
illustrious ancient republic, Rome.9
The Framers’ attentiveness to “primitive constitutions” (#18) should remind us that the legendary
constitution-makers or Great Legislators of antiquity were worshipped as religious figures not because
7
Encyclopédie ou dictionnaire raisonné des sciences, des arts et des métiers (Paris, 1794), vol. 4, p. 62.
Madison’s boast in Federalist #51 that the Americans invented constitutionalism tout court must be qualified in light of his and
Hamilton’s multiple and miscellaneous references to the “the Achaean constitution” (#18), “the Germanic constitution” (#19),
“the British Constitution” (#41), and especially “primitive constitutions” (#18).
9 For a typically vegetarian or de-bellicized version of Rome’s influence on the Founding generation, see Gordon Wood, “The
Legacy of Rome in the American Revolution,” Peter S. Onuf and Nicholas P. Cole (eds.), Thomas Jefferson, the Classical World,
and Early America (Charlottesville: University of Virginia Press, 2011).
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they protected minority rights but because they organized their communities for military defense and
conquest.10 For the Latin writers of the classical age, moreover, to constitute (constituere) a republic
meant to found and organize it for duration, prosperity, mutual assistance, common defense and territorial
aggrandizement. When he referred to the constitutio rei publicae,11 for instance, Cicero meant the
morphological structure and operating code of Rome’s republican government, the system of major and
minor magistracies, the scheduling and organization of elections and judicial trials, the interweaving of
Senatorial deliberation, popular approval, and consular action, and also the policy of granting citizenship
rights to conquered inhabitants of the Italian peninsula in exchange for military service, a practice that
made Rome into the first extended republic in history. Its territorial extent also made it capable of fielding
armies larger than any other republic in antiquity.
Polybius’s Histories argues that Rome’s military and political successes were due to its political
institutions, that is, to “the form of the state’s constitution [politeia].”12 The entire Mediterranean world
fell under Rome’s sway because Rome, during its most virtuously republican phase, was politically
organized for dominion. According to Andrew Lintott, “Polybius’ association of Rome’s phenomenal
military success with the excellence of her constitution may surprise twentieth-century readers, but it was
almost self-evident for a Greek intellectual from within the governing class of the period.”13 It was
equally self-evident for Latin speakers, perhaps because one of the meanings associated with the word
constitutio was organizing military forces and erecting fortresses in preparation for war.14 Constituere
referred generally to establishing and arranging; but one of its principal meanings was stationing troops
and deploying them in battle formation. For example, “Caesar stationed the legion” is “Legionem Caesar .
. . constituit.”15 Similarly, “the Roman army took the field” is “constitit Romana acies.”16
Because the American Framers were quite familiar with the writings of Polybius and the Latin
historians of republican Rome,17 they would have been fully aware that political organization was
generally credited with spawning Rome’s formidable military power as well as facilitating its
extraordinarily rapid transformation from a meagerly populated city on the periphery of civilization into
the acknowledged master of the world.18 They also knew, or thought they knew, that Rome had
undertaken imperial expansion to manage domestic factionalism and resolve domestic crises. And of
course they were aware that veterans of Rome’s wars were awarded bounties of arable land carved out of
10
Webster in his debate with Hayne: "We are accustomed to praise the lawgivers of antiquity; we help to perpetuate the fame of
Solon and Lycurgus; but I doubt whether one single law of any lawgiver, ancient or modern, has produced effects of more
distinct, marked and lasting character than the Ordinance of 1787."
11 Cicero’s reference to the constitutio rei publicae appears in De re publica, in Cicero, De re publica and De Legibus, translated
by Clinton Walker Keyes (Cambridge, Mass.: Loeb Library, 1928), 2.21.37, 144–5; see also De re publica, 1.45.69, 104–5;
2.31.53, 162–3; 1.46.70, 104–7; and De legibus, 2.16.23, 398–9; 3.18.42, 508–9. McIlwain, incidentally, claimed that Cicero’s
haec constitutio was the first recorded use of the word “constitution” to mean a working plan of government. Charles Howard
McIlwain, Constitutionalism Ancient and Modern (Ithaca: Cornell University Press, 1947), p. 25.
12 Polybius, The Rise of the Roman Empire (Harmondsworth: Penguin, 1979), I.1, p. 41; “There can surely be nobody so petty or
so apathetic in his outlook that he has no desire to discover by what means and under what system of government the Romans
succeeded in less that fifty-three years in bringing under their rule almost the whole of the inhabited world, an achievement
which is without parallel in human history” (VI.2, pp. 302–303).
13 Andrew Lintott, The Constitution of the Roman Republic (Oxford: Oxford University Press, 1999), p. 1.
14 Lewis and Short, A Latin Dictionary (Oxford: Clarendon Press, 1975), pp. 437–8.
15 Caesar, The Gallic War, translated by H.J. Edwards (Cambridge, Mass.: Loeb Library, 1917), 1.43, p. 68.
16 Livy, translated by B. O. Foster (Cambridge, Mass.: Loeb Library, 1922), Vol. 2, 3.2.10, pp. 8-9; Machiavelli, who explicitly
argued that the constitutions (constituzioni) of Athens, Sparta, and Rome explained their relative military strengths (Niccolò
Machiavelli, Discourses on Livy, translated by Harvey C. Mansfield and Nathan Tarcov [Chicago: University of Chicago Press,
1996] 1.2, p. 13), also used constituire to refer to the way armies were arrayed and deployed in battle (Discourses on Livy, 1.14,
p. 42).
17 Gilbert Chinard, “Polybius and the American Constitution.” In The American Enlightenment, ed. Frank Shuffelton, Library of
the History of Ideas. Vol. 11. New York: University of Rochester Press, 1993, pp. 217-37.
18 Even Thomas Gordon, despite his adamant hostility to “the natural Encroachments of Power,” acknowledged that the Romans
“quickly conquered the world,” due to their constitution “in which every Roman had a share.” Cato’s Letters, Nos. 33 and 65.
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territory that the Legions had conquered. This was just another aspect of Rome’s military constitution
thought worthy of emulation by aspiring modern republicans.
Euphemism aside, to say that the Roman Republic was organized for “civic virtue” is to
emphasize its drill-hardened readiness for offensive and defensive war. True to its etymology, the
Framers’ constitutionalism had more to do with martial self-assertion than with civilian self-restraint.
The “constitutional” task, in the first instance, was to create power out of powerlessness. Relentless
discipline could “constitute” a disorganized rabble into an effective fighting force. This was a Roman
lesson well learned by the once-and-still embattled Revolutionary generation. Reflecting on the
amateurish militia of undisciplined independent yeomen who had frustrated and disgusted Washington
throughout the Revolutionary War, Hamilton deplored the "slow and scanty levies of men, in the most
critical emergencies of our affairs; short enlistments at an unparalleled expense; continual fluctuations in
the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a
disbanded army" (#22). Military hierarchies, alternative combat formations, orders of battle, principles of
engagement and so forth made up the rudimentary protocols of a professionally constituted military force.
To socialize officers and troops in these war-fighting rules and roles required sustained and concentrated
effort: “War, like most other things, is a science to be acquired and perfected by diligence, by
perseverance, by time, and by practice” (#25). Baron von Steuben’s Revolutionary War Drill Manual
contained no encomiums to laissez-faire.19
The constitution of military capacity is an indispensable building block of any political
constitution which aims to enhance a community’s defensive and offensive posture in a hostile
international environment. The need to place the state militias “under one plan of discipline” (#4),
designed to pool and coordinate the resources of militarily unimpressive states suffering from attention
deficit disorder, was one of the main reasons Hamilton gave for strengthening the general government:
“confiding the regulation of the militia to the direction of the national authority” will permit “uniformity
in the organization and discipline of the militia” and will “enable them to discharge the duties of the camp
and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of
an army” (#29). Only by extending the authority of the national government throughout the states will it
be possible to “establish uniformity and concert in the plans and measures by which the common safety is
to be secured” (#23). Because it will be "constituted the guardian of the national security" (#29, my
emphasis), the general government will also have to organize “a force constituted differently than the
militia” (#28, my emphasis), not only to repress insurrections but also, and especially, to fight the Indian
wars. Freely available to indigenous warriors, guns and horses would not suffice. Only a formal
command structure culminating in a commander-in-chief would give the Americans the military
wherewithal to break the Indian power, eject the European “intruders,” and provide enough security to the
Old Northwest, now in the hands of the national government, to transform it into a lucrative magnet for
speculators and land-hungry settlers.
For eighteenth-century American students of classical antiquity, in sum, “constituting” a political
community was no more about restricting the government’s power than training recruits was about
shrinking the army’s capacity to launch and repel attacks. The history of the word “constitution” is
therefore of more than etymological significance. Thus, when discussing national security, an arena
where political, diplomatic, and military power must work in unison, Hamilton rejects the facile optimism
of hand-tying constitutionalism in the strongest possible terms: “there can be no limitation of that
authority which is to provide for the defense and protection of the community, in any matter essential to
its efficacy that is, in any matter essential to the formation, direction, or support of the national forces”
(#23).
Baron von Steuben’s Revolutionary War Drill Manual (New York: Dover, 1985). This is a facsimile reprint of the 1794
edition.
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Conscious that Rome’s constitution facilitated that republic’s expansionistic and annexationist
successes, the Framers could not possibly have seen the Constitution’s “shall not” clauses as the beating
heart of republican constitutionalism. This is not meant to deny the crucial importance, then and now, of
various don’ts and prohibitions (such as “No Bill of Attainder or ex post facto Law shall be passed”)
inserted in the document they drafted. But it does imply that we can better interpret the limits placed on
government by the 1787 Constitution if we abandon for a moment the libertarian polarity of rights versus
power, inapplicable to the exposed and vulnerable situation of a settler society that had lost not only its
imperial oppressor but also its imperial protector. The appeal of constitutional rights can be explained in
a variety of ways. The one which arguably best fits the American context describes them as incentives to
cooperate in a long-gestation state-building project. Possessed of scant fiscal and administrative capacity,
the new-born American state had to enlist the support and channel the efforts of private individuals,
families and small-scale communities into a shared plan of national development.20 Liberties both
personal and political were enlistment bounties, designed to harness the energies of individual citizens to
the nation’s expansionist venture. To whatever moral heights their defenders rose, political and civil
liberties were always also justified on pragmatic grounds, as the most effective means available to a
basically insolvent and bureaucratically underdeveloped state for exploiting the potentialities of the
American hinterland and eventually overtaking the arrogant nations of Europe in opulence, power and,
needless to add, continental scope. Whether or not individual rights and even states’ rights are inviolable,
in some ineffably normative sense, both were embraced and supported in practice by America’s
resourceful state-builders because their judicial and political defense helped mobilize and direct public
support for collective projects, including the basically economic, although militarily accompanied,
westward thrust of American power.
Drawing lessons from republican Rome, incidentally, did not impede the Framers from seeking
and finding further inspiration in the achievements of ancient Israel. Constitutional Union, it seemed,
could boost the power of a people not only to seize coveted territories but also to expel the previous
inhabitants. That, at least, was a lesson that the American Framers could draw directly from the Hebrew
Bible. The constitution of ancient Israel, first under King Saul and then under King David, was obviously
monarchical and in that trite sense anti-republican, but it also consolidated the loose and quasi-anarchical
federation of twelve Israelite tribes into a More Perfect Union and thereby fostered not only collective
defense but also land seizure and the dispossession of Canaanite tribesmen worshipping alien cults.
Plunging westward, the roughest American frontiersmen and Indian killers, if they ever encountered a
preacher, were presumably delighted to learn that the ethnic cleansing of the West conformed to rightly
interpreted divine commands: “when the LORD your God delivers them [seven nations that previously
inhabited the land] over to you and you defeat them, you must completely destroy them. Make no treaty
with them and show them no mercy. Do not intermarry with them. Do not give your daughters to their
sons or take their daughters for your sons . . . this is what you are to do to them: tear down their altars,
smash their sacred pillars, cut down their Asherah poles, and burn up their carved images.”21
Charles Tilly, “Where Do Rights Come From?” in Lars Mjoset (ed.), Contributions to the Comparative Study of Development,
Vol. 2, (Oslo: Institute for Social Research, 1992). Schumpeter even claimed that the “inalienable Rights of Man” were
celebrated in America not on the normative grounds that universal human dignity must be respected, but rather because
inalienable rights became associated contingently with the continental expansion that opened up unparalleled opportunities for
European-Americans by dispossessing the native tribes: “The wording of the Declaration of Independence and of the Constitution
adopted these principles. A prodigious development followed that absorbed and satisfied most people and thereby seemed to
verify the doctrine embalmed in the sacred documents of the nation.” Joseph Schumpeter, Capitalism, Socialism, and
Democracy (New York: Harper’s, 1947), p. 267.
21 Deuteronomy 7; see also Leviticus 18:24-28.
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This may seem harsh. But the enthusiastic expansionist Benjamin Franklin secularized not only
the Puritan work ethic but also the Puritan dream of an “American Israel,”22 writing in 1751 that “the
Prince that acquires new Territory” and successfully “removes the Natives to give his own People Room”
should be counted among the justly celebrated “Fathers of their Nation.”23 The man who would live to be
the oldest, the most ingenious, and one of the two most celebrated delegates to the Philadelphia
Convention, in other words, unsentimentally described Indian removal as an indispensable precondition
for securing the blessings of liberty to “our posterity,” doubling every twenty-five years, in
contradistinction to the posterity of indigenous peoples, spiraling toward extinction.24 We the people, it
turns out, are “a people descended from the same ancestors” which is why “Providence has been pleased
to give this one connected country” wholly and exclusively to us (#2).
Ancient Rome’s constitution facilitated that ancient republic’s astonishingly rapid territorial
expansion. The Union of twelve Israelite tribes facilitated the forced removal of previous inhabitants
from the Promised Land. And indeed these celebrated polities of the ancient world provided the
American Framers with stirring models of enabling constitutionalism. But pointing out two illustrious
precursors is only scratching the surface. Organized political systems have existed in the world for
perhaps 5,000 years. It is inconceivable that several millennia of experimenting with primitive
constitutions, including “antirepublican Constitutions” (#43), would have left no traces on the relatively
brief 250 years of modern constitutional thought and practice. Admittedly, many eye-catching parallels
between archaic and modern constitutions may simply represent accidental isomorphism, resulting from
the need to manage similar problems, without any genealogical connection or influence. Such problems
would include: what to do when the ruler dies, how to tax efficiently, how to levy and train military
forces, how to assuage intra-elite factionalism, how to mitigate class warfare, and, most relevant for
present purposes, how to prevent territorial secession. To say that “Security against foreign danger is one
of the primitive projects of civil society” (#41) is to say that “national” security is an imperative naturally
shared, without borrowing, by all political communities throughout human history. But archaic
constitutional orders where liberty, democracy, humanity and justice played no role whatsoever were also
closely studied by America’s constitution-makers in search of models to imitate as well as to avoid.
The Theoretical Basis of Enabling Constitutionalism
Historical evidence confirming the centrality of strategic and annexationist federalism to the
Framers’ constitutional vision, to be analyzed below, may be illuminated by a parenthetical foray into
abstract theory. What I mean by the term “enabling constitutionalism” can best be clarified by drawing a
contrast with what could be called, in a salute to Tom Schelling, impulse-control constitutionalism.25 The
quirky analogy between constitutional principles and Ulysses’ bonds, meant to prevent the captain’s
“New England was like Israel in the land of Canaan, surrounded by a barbarous foe.” Richard W. Van Alstyne, Genesis of
American Nationalism (Waltham: Blaisdell, 1970), p. 30.
23 Benjamin Franklin, Observations Concerning the Increase of Mankind (1751).
24 Franklin’s celebrated “Observations,” which imagines the populating of North America by racial equals at the expense of
nonwhite populations, contains the following thought, which sheds light on the high hopes of other American Framers as well:
“the Number of purely white People in the World is proportionably very small. All Africa is black or tawny; Asia chiefly tawny;
America (exclusive of the new Comers) wholly so. And in Europe, the Spaniards, Italians, French, Russians, and Swedes, are
generally of what we call a swarthy Complexion; as are the Germans also, the Saxons only excepted, who, with the English,
make the principal Body of White People on the Face of the Earth. I could wish their Numbers were increased. And while we are,
as I may call it, Scouring our Planet, by clearing America of Woods, and so making this Side of our Globe reflect a brighter Light
to the Eyes of Inhabitants in Mars or Venus, why should we, in the Sight of Superior Beings, darken its People? Why increase the
Sons of Africa, by planting them in America, where we have so fair an Opportunity, by excluding all Blacks and Tawneys, of
increasing the lovely White and Red? But perhaps I am partial to the Complexion of my Country, for such Kind of Partiality is
natural to Mankind.”
25 Daryl J. Levinson, “Parchment and Politics: The Positive Puzzle of Constitutional Commitment,” 124 Harvard Law Review
657 (January 20, 2011).
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uncontrollable impulsiveness from wrecking his ship and killing its crew, the captain included, goes back
at least to Spinoza.26 When combined with the myth of popular sovereignty, this fanciful analogy breaks
down because Ulysses operated as a coherent decision-maker, capable of issuing authoritative commands
and being duly obeyed, prior to ordering his sailors to lash him to the mast and stop their ears with
beeswax. He was already “constituted” as a capable and authoritative decision maker before being
prevented from swerving rashly into the rocks, against his better judgment.
Unlike Ulysses, the “popular sovereign” cannot make binding decisions until a variety of “predecisions” have been made concerning, for example, who is a member of the community, which subset of
members can vote, and importantly what decision-making procedure, such as majority rule, will be used:
“The first principle of republicanism,” Jefferson wrote, “is that the lex majoris partis is the fundamental
law of every society of individuals of equal rights.”27 This is not quite true, since the question of who is a
fully enfranchised member of the community (nonwhites too or only whites?) must be answered before
the principle of majority rule can be applied. Nevertheless, a decision-making procedure such as majority
rule constitutes the community, for the first time, as a community able to make decisions collectively.
Thus, a community’s reputedly irresistible impulse to make bad collective decisions cannot be restrained
or guarded against until its ability to make collective decisions is constitutionally established in the first
place.
Whatever else we may think about the lex majoris partis, we cannot say that it is
countermajoritarian. Its effect on the behavior of the community may be restrictive in some sense, but the
prior and paramount function of an agreed-upon decision-making procedure is enabling, that is, it makes
an otherwise cacophonous community capable of coherent collective choice. A consequence is that “the
people” participate in self-government only as a pouvoir constitué never as an extra-constitutional
pouvoir constituant. This is just as true of the people ratifying and amending the constitution as of the
people who govern themselves under it. The will of the people cannot be the authorizing source of those
rules that must be in place before any community becomes capable of expressing a will. Only the
preexisting constitutional organization of decision-making makes it possible for the members of a
community “to direct their independent wills toward joint action aimed at achieving common designs.”28
This is something that any student of “primitive constitutions” would know.
Bones in vertebrates cannot be adequately described as obstacles to locomotion. Rules of
grammar cannot be classified as shackles on communication. Constitutions have similar enabling not
disabling functions, downplayed by the commonplace that constitutions exist to place restraints on power.
A telling example of enabling law can be found in the rules and institutions of probate that make it
possible for individuals to speak after death, something that they are not biologically, but only
institutionally, capable of doing. Far from being redundant, the linguistic construction “a limited
constitution” (#81) itself reveals that the constitution of power itself does not automatically imply
limitations on power. As a result, limitations, if any, must supplement the organizational framework that,
as John Locke memorably wrote, first makes “that community one body, with a power to act as one body,
which is only by the will and determination of the majority.”29
26
Benedict de Spinoza, Political Treatise, Chap. VII, in A Theologico-Political Treatise and A Political Treatise, translated by
R.H.M. Elwes (New York: Dover Publications, 1951), p. 327; and of course Jon Elster, Ulysses and the Sirens: Studies in
Rationality and Irrationality (Cambridge University Press, 1984).
27 Letter of Thomas Jefferson to Alexander von Humboldt, 1817. ME 15:127 The Works of Thomas Jefferson, edited by Paul
Leicester Ford, vol. (1905), p.
28 Alexis de Tocqueville, Democracy in America, translated by Arthur Goldhammer (New York: Library of America, 2004), p.
436.
29 John Locke, The Second Treatise of Government (Indianapolis: Bobbs-Merrill, 1952), §96, p. 55
8
For the purposes of this paper, the theoretically demonstrable priority of enabling over restraining
constitutionalism is interesting chiefly because it directs our attention to the various positive goals which
the Framers hoped a reordered federal system could achieve. Facilitating rules, such as the lex majoris
partis, should help focus constitutional theory, first of all, on the enabling functions of constitutional
organization in general. Focusing on the self-destructive “impulses” that constitutions are meant to
asphyxiate is not completely pointless but neither is it likely to tell us much. We will have better luck if
we look to the purposes that constitutions are designed to achieve and sometimes actually do. That in any
case is the theme I want to explore: how the Framers conceived symmetrical federalism as a strategy for
absorbing the West into the Union in the face of sizeable obstacles. To call symmetrical federalism
“strategic” is to understand it as a deliberate institutional decision made in anticipation of how other
strategic actors were thought likely to respond. The Equal Footing Doctrine is strategic in this sense
because it was consciously chosen with the aim of keeping western settlers loyal to the Union despite
considerable temptations to secede.
A decision making procedure is only the most basic example of an enabling rule. Constitutional
provisions can be enabling rather than disabling in a plethora of less fundamental ways. For example, a
provision outlining what to do if the President falls into a coma (the 25th amendment) cannot be sensibly
regarded as a “restraint” on power. It is not a limit but a script. Similar scripts tell us how to impeach a
judge, how to amend the Constitution and, central to our theme, how to admit new states to the Union.
Other provisions look disabling on the surface, but have no doubt proved stable over time because they
facilitate the exercise of state power: terms limits that subsidize patience with disliked officials and
therefore discourage assassinations; freedom of the press that promotes a decentralized system of
information gathering that alerts officials to budding problems at the price of airing criticisms that
officials would prefer not to hear; high evidentiary standards that make it more difficult for private parties
to feed disinformation into the system of criminal justice for the purpose of harming their personal
enemies; the independence of the judiciary that reduces the pressure exerted on elected officials by parties
affected by judicial decisions, and so forth. I offer this cursory and miscellaneous list only to indicate that
the specific form of enabling constitutionalism on which I will be concentrating here is but one example
among many.
A Few Precursors Telegraphically Recalled
Returning now to our historical theme: What were some of the more recent examples of enabling
constitutionalism that shaped the thinking of the American Framers? I will briefly mention five.
First, the charters, royal and proprietary, granted during the early colonial period certainly alerted
the constitution-makers of the Revolutionary and post-Revolutionary period to the enabling functions of
constitutions. These charters were meant not to limit power but to muster and incentivize, as well as to
impose some semblance of political order upon, trans-Atlantic (i.e., westward) migration and settlement
in the wilderness. They functioned as stimulants not depressants. They were constitutional spurs not
constitutional reins.
Second, representative assemblies in the periphery of the British Empire could make laws and
impose taxes on the basis of local knowledge. They also reduced the fiscal burden on London and made
governance from the center considerably less difficult. The utility of devolving some powers, including
the power to impose local taxes for local purposes, was less a matter of republican virtue than of
elementary psychology: people are more willing to bear the burdens of taxation if their elected
representatives at all levels, but always with “knowledge of local circumstances requisite to the purposes
of taxation” (#36), have a hand in imposing it. The general policy of import-substitution, to which the
Americans were compelled to resort after the break with Great Britain, meant that this basically pragmatic
9
rationale for some degree of home rule became an integral part of how even the Framers most favorable
to centralization understood self-governing states not as obstacles to national power but as labor-saving
devices which enabled the national government to devote most of its scant resources to a shared project of
continental scope.
Third, the “Act of Union” that brought England and Scotland together as Great Britain in 1707 is
often said to have been an important model for the 1787 Constitution. Celebrated in precisely these terms
by John Jay (#5), the Act of Union created a strong federation, designed not only to reduce the irrational
jealousies that balloon petty differences into irreconcilable conflicts, but also to increase the joint ability
of England and Scotland to project power onto the international stage. The latter purpose was especially
crucial, since Scotland and England, before the Union, had not been able to act in concert to defend and
promote their palpably common interests. For instance, they were both engaged at the time in what
everyone saw as a zero-sum contest with Spain for supremacy in the Western hemisphere. Promoting
Union to gain sway in the West was therefore a central theme of British imperialism decades before it was
“imported” into American constitutional thought and practice.30
Fourth, the Albany Congress of 1754 was called to coordinate the defense of seven colonies
against the threats posed by the French and their Indian allies. It is generally considered an important
precursor to the Federal Convention because its basic premise was that continental expansion hinged upon
colonial union. One of its key provisions reads: “The establishing of new colonies westward on the Ohio
and the lakes, (a matter of considerable importance to the increase of British trade and power, to the
breaking that of the French, and to the protection and security of our present colonies,) would best be
carried on by a joint union.”31 Colonial union was justified pragmatically, as an instrument for achieving
valuable objectives, the most important of which was the establishment of militarily defensible and
economically prosperous western colonies with no European rivals in the neighborhood blocking further
advances or stirring up Indian resistance. Co-authored by Franklin, the “Plan of Union” instructed the
proposed President-General to be appointed by the crown in collaboration with a Grand Council to be
elected by the Colonial assemblies not only to “raise and pay soldiers and build forts for the defense of
any of the Colonies” but also to “hold or direct all Indian treaties, in which the general interest of the
Colonies may be concerned,” to “make peace or declare war with Indian nations,” to “make such laws as
they judge necessary for regulating all Indian trade,” to “make all purchases from Indians, for the crown,
of lands not now within the bounds of particular Colonies, or that shall not be within their bounds when
some of them are reduced to more convenient dimensions,” to “make new settlements on such purchases,
by granting lands in the King's name,” and, most importantly, to “make laws for regulating and governing
such new settlements, till the crown shall think fit to form them into particular governments.”32 Although
the Albany Plan of Union was rejected in both London and America, the idea that territorial expansion
would be impossible without colonial union resurfaced with renewed urgency in conjunction with the
break from Great Britain. The Constitution of 1787 contained strong echoes of the Albany Plan’s
ambitions: to fortify the frontier; to concentrate Indian policy in the hands of the national government; to
oscillate between belligerence and peace-making to keep the Indians off balance and to edge them
gradually westward; to obtain Indian lands in the process by treaty and/or conquest, to lodge the power to
regulate these lands which, after the landed states were “reduced to more convenient dimensions,” had in
For a classic article tracing “the very essence of American federalism . . . to the practices of English imperialism,” see Andrew
C. McLaughlin, “The Background of American Federalism,” The American Political Science Review Vol. 12, No. 2 (May, 1918),
p. 215-240.
31 “The establishing of new colonies westward on the Ohio and the lakes, (a matter of considerable importance to the increase of
British trade and power, to the breaking that of the French, and to the protection and security of our present colonies,) would best
be carried on by a joint union.” Benjamin Franklin, “Reasons and Motives for the Albany Plan of Union” (July 1754), Papers,
vol. 5, p. 399.
32 Albany Plan of Union, 1754.
30
10
the meantime fallen to the Union; to use land grants to incentivize and concentrate settlement; and then,
when the time was ripe, to form them into particular governments to be ruled essentially like the others.
Fifth, the Articles of Confederation and Perpetual Union, submitted to the states for ratification in
1777, although ratified only in 1781,33 were initially drafted by rebellious colonists trying to organize a
joint colonial confrontation with a formidable superpower. The simultaneity of war-making, state-making
and constitution-making in this period, when the flight of royal officials had created a vacuum of
authority, is succinctly conveyed in a letter John Adams wrote to his wife:
When 50 or 60 Men have a Constitution to form for a great Empire, at the same Time that they
have a Country of fifteen hundred Miles extent to fortify, Millions to arm and train, a Naval
Power to begin, an extensive Commerce to regulate, numerous Tribes of Indians to negotiate
with, a standing Army of Twenty seven Thousand Men to raise, pay, victual and officer, I really
shall pity those 50 or 60 Men.34
But stopgap constitution-making during the Revolution was not simply an additional burden superadded
to the organizing of collective defense. Revolutionary constitution-making was part and parcel of
collective self-defense. This is already clear from the instructions that the Continental Congress issued to
the colonial legislatures, under Adams’ prodding, to frame and implement new state constitutions
explicitly “for the defense of their lives, liberties and properties, against the hostile invasions and cruel
depredations of their enemies.”35 But it is also made clear in the Articles of Confederation itself, which
reads:
whereas we live encompassed with people of several nations and strange languages which
hereafter may prove injurious to us or our posterity [my emphasis]. And forasmuch as the natives
have formerly committed sundry Insolence and outrages upon several Plantations of the English
and have of late combined themselves against us . . . We therefore do conceive it our bounden
duty, without delay to enter into a present Consociation amongst ourselves, for mutual help and
strength in all our future concernments
The Articles of Confederation, in other words, was framed to increase the military power of the thirteen
states. But this instrument of government was not designed exclusively to facilitate the drive to
independence which would presumably come at some point to a conclusion. It was also designed to deal
with the Indian threat which would continue to fester after the British had been driven away. The central
idea, as this passage suggests, was to mirror-image the Indian strategy of combining themselves against us
by pooling the separate resources of the states to magnify their joint power of attack and counterattack.
By 1787, admittedly, an important group of Americans had concluded that the “firm and perpetual league
of friendship and amity for offence and defense” (my emphasis) had functioned poorly. But the
Philadelphia Framers were not wrong when they insisted they were simply trying to do better what their
predecessors had tried but failed to do.
33
The delay had everything to do with Western lands, as Maryland, lobbying on behalf of the private land-purchase corporations
located mostly in the landless states, refused to ratify in an effort to force Virginia to cede its claims in the northwest to the Union
without demanding that titles obtained by private land company through purchase from the tribes be declared void.
34 Letter of John Adams to Abigail, 24 July 1775.
35 “Resolution in Congress on Establishing New Governments,” May 15, 1776, in John Adams, Revolutionary Writings 17751783 (New York: Library of America, 2011), p. 69.
11
Contrived to Expand
In his first recorded intervention at the Federal Convention, Hamilton spoke not of how the new
constitution should be organized but of the purposes which, in his opinion, a new legal frame needed to
serve:
Let us take a review of the variety of important objects, which must necessarily engage the
attention of a national government. You have to protect your rights against Canada on the north,
Spain on the south, and your western frontier against savages. You have to adopt necessary plans
for the settlement of your frontiers, and to institute the mode in which settlements and good
government are to be made.36
The western frontier, the settlements, and the Indians loom large in this condensed summation of the
“important objects” which the assembled constitution-makers must keep in mind. Like national defense
against Great Britain and Spain, pacification of the continental interior could not be left to the state
governments but needed to be taken over by a strengthened national government. Indeed, the national
government needed strengthening precisely so it could manage formidable challenges such as these, all of
which fall among the “certain enumerated objects, which concern all the members of the republic, but
which are not to be attained by the separate provisions of any” (#14). Two months later, when
introducing a list of twenty “additional powers proposed to be vested in the Legislature of the United
States” and which “passed in the affirmative,” Madison circled back Hamilton’s priorities in the first three
powers that the listed: “To dispose of the unappropriated lands of the United States,” “To institute
temporary governments for new States arising thereon,” and “To regulate affairs with the Indians as well
within as without the limits of the United States.”37 For Madison, too, in other words, the most “important
objects” to be achieved by the new constitution included assigning property rights and planting
settlements in western lands, organizing these settlements politically, and managing the Indian threat.
The Constitution had to erect a government capable of achieving these ends. The debate was only about
how the well-regulated settlement of the frontier could be fostered by intelligent constitutional design.
Within this multifaceted and wide-ranging debate, I will focus only on the arguments for and
against admitting new states on an equal footing with the older states. These discussions are interesting
because of what they reveal both about the instrumental rationale for the Equal Footing Doctrine and
about the serious resistance its supporters had to surmount. The debate in the summer of 1787 was not
without precedents, needless to say. The idea of equal footing for new states, already adumbrated in
Franklin’s Albany Plan, had been repeatedly discussed in the Congress of the Confederation in
connection with the possibility of a Virginia cession of the Old Northwest and the creation of a national
domain. In its initial 1779 cession offer, for example, Virginia had stipulated that new states to be carved
from a hypothetically ceded domain "shall be formed into distinct republican states which shall become
members of the federal union, and have the same rights of sovereignty, freedom and independence as the
other states."38 Then, in a report that Jefferson wrote for Congress in 1784 in the immediate aftermath of
Virginia’s cession of the Old Northwest, we read: “whensoever any of the sd states shall have, of free
inhabitants, as many as shall then be in any one of the least numerous, of the thirteen original states, such
state shall be admitted by it’s delegates into the Congress of the United States on an equal footing with
the said original states: provided nine States agree to such admission.”39 This proposal came to fruition in
the Northwest Ordinance, passed by Congress in mid-summer (i.e., mid-Convention) 1787. The
Farrand, Records, I, June 18, p. 297; as a careful reader of Machiavelli, incidentally, Hamilton employed the locution “to
institute the mode” as a synonym for “to constitute” or “to frame a constitution.”
37 Farrand, Records, Vol. II, p. 321.
38 JCC, 1779:662, 1780:915
39 Report of Government for the Western Territory (March 22, 1784), The Works of Thomas Jefferson, edited by Paul Leicester
Ford, vol. 4 (1905), pp. 278-279.
36
12
Ordinance looks forward to “the establishment of States, and permanent government” in the Ohio lands
and “their admission to a share in the federal councils on an equal footing with the original States, at as
early periods as may be consistent with the general interest.”40 But how was the Equal Footing Doctrine
discussed at the Constitutional Convention itself?
Several important delegates aggressively opposed symmetrical federalism for an expanding
Union as a dangerous give-away of seaboard powers. They countered with a proposal for asymmetrical
federalism, whereby subsequently admitted states would remain second-class members of the federation,
perhaps even being ruled as perpetual dependencies.41 Anxieties about draining population from the East,
and increased labor costs there, contributed to this resolute stonewalling on equal footing. Taking the
lead of the “anti” camp was Gouverneur Morris, who “dwelt much on the danger of throwing such a
preponderancy into the Western Scale, suggesting that in time the Western people wd. outnumber the
Atlantic States. He wished therefore to put it in the power of the latter to keep a majority of votes in their
own hands.”42 Nathaniel Gorham, for his part, was appalled at the prospect that a swelling western
population would increase the sway of westerners inside the federation assembly. He suggested that the
problem could be mitigated by disproportional representation: “the Atlantic States having ye. Govt. in
their own hands, may take care of their own interest, by dealing out the right of Representation in safe
proportions to the Western States.”43 Eldridge Gerry voiced similar coastline apprehensions, agreeing
that new political communities arising in the West, if they had to be incorporated, should not be
incorporated as equals. He therefore requested “that the attention of the House might be turned to the
dangers apprehended from Western States. He was for admitting them on liberal terms, but not for putting
ourselves into their hands. They will if they acquire power like all men, abuse it. They will oppress
commerce, and drain our wealth into the Western Country.” Adding a xenophobic note, Gerry remarked
that “There was a rage for emigration from the Eastern States to the Western Country and he did not wish
those remaining behind to be at the mercy of the Emigrants. Besides foreigners are resorting to that
Country, and it is uncertain what turn things may take there.”44 Even more melodramatically, “Mr.
[George] Clymer thought the encouragement of the Western Country was suicide on the old States.”45
The objections raised here by the “anti” camp are significant for two reasons. First, they vividly
demonstrate that the Equal Footing Doctrine was seen at the time as an instrument not only for limiting
the capacity of current member states to protect their vested interests by imposing restrictions on new
states that they were not prepared to impose on themselves, but also for organizing and redistributing the
much enhanced power that would foreseeably become available to the Union in the future. Second, they
reveal that the Equal Footing Doctrine had significant hurdles and fears to overcome. To beat back such
strongly worded objections, presumably, the positive benefits that the principle promised to deliver must
have been considered quite substantial.
Taking the lead in the “pro” camp, favoring equal footing, was Madison himself: “If the Western
States hereafter arising should be admitted into the Union, they ought to be considered as equals & as
brethren.”46 And again: “With regard to the Western States, he was clear & firm in opinion that no
unfavorable distinctions were admissible either in point of justice or policy.”47 Asymmetrical federalism
40
An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio (July 13, 1787).
Gouverneur Morris later wrote: “I always thought that when we should acquire Canada and Louisiana, it would be proper to
govern them as provinces and allow them no voice in our council.” Letter of 1804 [addressee? exact date?], cited in Charles
Warren, The Making of the Constitution (Boston: Little, Brown, 1928), p. 598.
42 Farrand, Records, Vol. I, July 10, p. 571.
43 Farrand, Records, Vol. I, July 9, p. 560.
44 Farrand, Records, Vol. II, July 14, pp. 2-3.
45 Farrand, Records, Vol. II, August 28, p. 442.
46 Farrand, Records, Vol. I, June 22, p. 373
47 Farrand, Records, Vol. I, July 11, p. 584.
41
13
was wrong as a matter of justice and wrong as a matter of policy. Indeed, it obstructed the attainment of
vital national purposes because it was such a brazen offense to principle. Edmund Randolph made this
clear when he recalled that: “Congs. have pledged the public faith to New States, that they shall be
admitted on equal terms. They never would nor ought to accede on any other.”48 In accepting the
Virginia cession, the old Congress agreed to the Equal Footing Doctrine.49 Rejecting it now would be a
breach of faith with the settlers who have already established themselves in the northwest. If the Framers
constitutionalized asymmetrical federalism, the communities being built there would refuse to join the
Union. This is what makes asymmetrical federalism a policy blunder. Moreover, they will refuse
because they should refuse. That is to say, asymmetrical federalism is a policy blunder because it is a
moral offense.
Another delegate from Virginia, George Mason “was himself decidedly of opinion that if [states
petitioning to enter were] made a part of the Union, they ought to be subject to no unfavorable
discriminations. Obvious considerations required it.”50 A week later Mason elaborated on the substance
of these obvious considerations:
Ought we to sacrifice what we know to be right in itself, lest it should prove favorable to States
which are not yet in existence. If the Western States are to be admitted into the Union as they
arise, they must, he wd. repeat, be treated as equals, and subjected to no degrading
discriminations. They will have the same pride & other passions which we have, and will either
not unite with or will speedily revolt from the Union, if they are not in all respects placed on an
equal footing with their brethren. It has been said they will be poor, and unable to make equal
contributions to the general Treasury. He did not know but that in time they would be both more
numerous & more wealthy than their Atlantic brethren. The extent & fertility of their soil, made
this probable.51
What does Mason mean here when he asserts that the Equal Footing Doctrine is “right in itself”? He
could be implying that there is something intrinsically wrong with a confederation of states that have
sworn to deal with each other as equals applying “degrading discriminations” to latecomer states.
Asymmetrical federalism would therefore inject a disturbingly dissonant element into what was designed
to be a league of peers. But another interpretation also suggests itself. The fertility of the soil in the new
states will give rise to abundant food, in-migration, early marriages, and a subsequent population boom.
From this perspective, asymmetrical federalism is wrong for a different reason. It flies in the face of the
expected demographic trajectory of the American people. Chiming in on this point, Roger Sherman of
Connecticut argues that only symmetrical federalism takes future generations into account: “We are
providing for our posterity [my emphasis], for our children & our grand Children, who would be as likely
to be citizens of new Western States, as of the old States. On this consideration alone, we ought to make
no such discrimination as was proposed by the motion” put forward by Gouverneur Morris.52 Framing the
new constitution behind a veil of ignorance, not knowing where their biological descendants will chose to
48
Farrand, Records, Vol. I, July 11, p. 580.
Randolph is referring to various resolutions and proposals submitted to the Confederation Congress. For instance, on October
10, 1780, in anticipation of a Virginia cession, a resolution was introduced stating that all ceded lands "shall be disposed of for
the common benefit of the United States, and be settled and formed into distinct republican states, which shall become members
of the federal union, and have the same rights of sovereignty, freedom and independence as the other states." JCC 18:915. Notice
that the creation of co-equal states in the territories is explicitly described here as “for the common benefit of the United States.”
Similarly, on June 5, 1783, a proposal was submitted to Congress, suggesting that each district in Ohio, when its population
reached 20,000 adult white males, shall "become and ever after be and constitute a separate, Independent free and Sovereign state
and be admitted into the union as such with the privileges and immunities of those states which now compose the union." JCC,
24:385.
50 Farrand, Records, Vol. I, July 5, p. 534.
51 Farrand, Records, Vol. I, July 11, pp. 578-579.
52 Farrand, Records, Vol. II, July 14, p. 3.
49
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live, the delegates to the Convention should distribute future power not in a way that the ephemeral
special interests of today suggest but on the basis of a purely neutral principle justifiable under any
possible pattern of settlement and population growth. But was this neutral principle the equality of states
or the right of the national majority to rule?
Mason’s most pragmatic argument for the “pro” position was that, if the Constitution did not
incorporate the Equal Footing Doctrine, the new political societies gradually developing on the frontier
“will either not unite with or will speedily revolt from the Union.” This prudential consideration is
picked up by James Wilson who emphasizes the way the Equal Footing Doctrine will sharply distinguish
the expanding American Union from the expanding British Empire. Having just rebelled against imperial
authority in the name of self-rule, how could the new nation deny equal weight in the common councils to
any new members of the nation it was trying to create? But Wilson weaves this “state equality”
argument together with a more democratic concern to empower the national majority. Those who fear the
growth of the West and therefore oppose admitting new states created there on an equal footing, Wilson
says, are fighting the future and this means fighting the most fundamental republican principle, majority
rule:
The majority of people wherever found ought in all questions to govern the minority. If the
interior Country should acquire this majority they will not only have the right, but will avail
themselves of it whether we will or no. This jealousy misled the policy of G. Britain with regard
to America. The fatal maxims espoused by her were that the Colonies were growing too fast, and
that their growth must be stinted in time. What were the consequences? first. enmity on our part,
then actual separation. Like consequences will result on the part of the interior settlements, if like
jealousy & policy be pursued on ours.53
The Equal Footing Doctrine, at the very least, reflects a conscious decision to reformat the project of
colonizing North America, inherited from the British, in a radically anti-imperial way. The aim remained
ejecting the European “intruders” and dispossessing the native tribes. What would change was the
treatment of the settlements planted to the West. While embracing the Empire’s expansionist project, the
Framers would avoid making the fatal mistake that had caused the American periphery of the British
Empire to separate itself from the center.54 That mistake was fixing the ultimate decision-making power
in the empire’s center and also, as a consequence, nailing the periphery into permanent subordination.
Constitution-making could not stop, but instead needed to adapt flexibly to, demography’s unstoppable
march. Assigning representatives according to population across the expanding Union, Madison argued,
was the most sensible measure for managing migration flows that no governing system could stanch: “He
could not agree that any substantial objection lay agst. fixig numbers for the perpetual standard of
Representation. … the people are constantly swarming from the more to the less populous places -- from
Europe to Ama. from the Northn. & Middle parts of the U. S. to the Southern & Western. They go where
land is cheaper, because there labour is dearer.”55
For Mason, Wilson, Madison and the other defenders of Equal Footing, asymmetrical federalism
based on constitutionally entrenched domination of the maritime states over future inland states was a
sure-fire formula for destroying the benefits of expansion by alienating of frontier settlers who, as
Washington famously wrote, were so tenuously tied to the East that they could be permanently detached
53
Farrand, Records, July 13, Vol. I, p. 605.
“Americans had learned a great lesson from their own history. In the building of an empire—though for the time the empire
was a confederation of sovereignties—the new settlements should not be permanently treated as dependents unfit to associate on
terms of equality with the older members of the union.” Andrew C. McLaughlin, A Constitutional History of the United States
(New York: Appleton-Century-Crofts, 1935, pp. 124-125.
55 Farrand, Records, July 11, Vol. I, p. 596.
54
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from the Union by the touch of a feather.56 The Framers had not only seen this movie before, they had
been among the dramatis personae. If it were to succeed as a matter of policy, dynamically
developmental federalism had to be rigorously symmetrical as a matter of justice. But did this mean
dealing justly with future states or dealing justly with future majorities?
As an example of strategic constitutionalism, the Equal Footing Doctrine was designed to a
variety of strategic goals. It involved the self-limitation of both the framing states and the framing
generation, but only to foster the opulence, power and territorial holdings of “our posterity.” The Union
could successfully expand only if the seaboard states were willing to relativize their parochial loyalties
and accept the possibility that the center of political gravity might shift westward as the Union expanded.
This was the sense in which the thirteen ratifying states and the few million people who lived within them
sacrificed their meager present power for the sake of much enhanced power to be collectively enjoyed by
the predictably quadrupled-in-size “popular sovereign” of the not-too-distant future. If anything made the
Framers’ “experiment of an extended republic” (#14) genuinely radical, it was this expressed willingness
to abandon the British idea of a geographically fixed imperial center ruling over a widening and
subordinate colonial periphery. The expansionistic federalism with which they replaced the British
imperial scheme ensured that power would re-locate periodically in concert with the migration and natural
“increase” of the westward-moving national majority. Although the members of the “pro” camp,
especially Madison and Wilson, tended to favor national majority rule in both chambers of Congress, they
also recognized that it was a step too far. The Equal Footing Doctrine itself, was explicitly concerned
with the equality of states wherever they were located not with the equality of voters wherever they lived.
Yet the storm over equal footing inside the Convention shifted easily from a debate over equal states to a
debate over equal citizens.57 And of course the compromise on bicameralism made it possible to do some
measure of justice both to future states and future majorities. Power in the Senate, following the theory of
compact federalism, would slowly drift toward subsequently admitted states while power in the House,
following the lex majoris partis, would gradually drift toward the growing population in the West.
Although this is eventually what happened, the scheme was not set in stone at the Convention
itself. In essence, the Equal Footing Doctrine proved too radical for the skittish delegates. They had the
chance to include it in the Constitution in so many words, but they refused. The folly of asymmetrical
federalism had been theoretically demonstrated; but Gouverneur Morris’s fears that western expansion
would drain all life from the Atlantic states had not been soothed. At the end of July, the following draft
article was submitted for debate: “New states soliciting admission into the Union” that “lawfully arise . . .
in the territory of the united states . . . shall be admitted on the same terms with the original states.”58
After debate, the proposal was resoundingly rejected. Here is the record of the debate transcribed in
Madison’s notes:
Art: XVII being taken up, Mr. Govr. Morris moved to strike out the two last sentences, to wit “If
the admission be consented to, the new States shall be admitted on the same terms with the
original States— But the Legislature may make conditions with the new States, concerning the
public debt, which shall be then subsisting”. — He did not wish to bind down the Legislature to
admit Western States on the terms here stated.
Mr Madison opposed the motion, insisting that the Western States neither would nor ought to
submit to a Union which degraded them from an equal rank with the other States.
56
Letter of George Washington to Benjamin Harrison, October 10, 1784.
The majoritarian impulse behind Wilson’s support for equal footing is registered in his rejection of any scheme that dissociates,
to benefit the older states, the number of representatives from the number of citizens: “if numbers be not a proper rule [for
representation], why is not some better rule pointed out. No one has yet ventured to attempt it. Congs. have never been able to
discover a better. No State as far as he had heard, has suggested any other.” Farrand, Records, July 13, Vol. I, p. 605.
58 Farrand, Records, July 24-26, Vol. II, p. 147.
57
16
Col. Mason— If it were possible by just means to prevent emigrations to the Western Country, it
might be good policy. But go the people will as they find it for their interest, and the best policy is
to treat them with that equality which will make them friends not enemies.
Mr Govr Morris. did not mean to discourage the growth of the Western Country. He knew that to
be impossible. He did not wish however to throw the power into their hands.
Mr Sherman, was agst. the motion, & for fixing an equality of privileges by the Constitution.
Mr Langdon was in favor of the Motion. he did not know but circumstances might arise which
would render it inconvenient to admit new States on terms of equality.59
Several points raised here deserve comment. First of all, Morris identifies binding down the future
national legislature with throwing power to the future West. Equal Footing is being depicted, therefore,
as an example of constitutional disabling in the service of constitutional enabling. Second, Madison
emphasizes the congruence of normative and prudential considerations: the new states will not and should
not accept being degraded from an equal rank. His tacit premise is that blatant injustice rankles and saps
the unjustly treated party’s willingness to engage in mutually beneficial cooperation. And finally, Mason
reminds his listeners that the drafters of a constitutional text, as a practical matter, have limited power.
They have no ability, even if they had the inclination, to stop settlers from crossing into the transmontane
territories in search of fertile farmland. They should therefore to adapt to reality and content themselves
with taking on tasks which they are currently capable of fulfilling. Creating secure land title, politically
organizing the settlements, protecting the settlers against Indian attacks, and binding the frontiersmen to
the Union are objectives well within the powers of the Convention and these are the purposes toward
which the new Constitution should aim. The Equal Footing Doctrine, in Mason’s opinion, is a vital
precondition for achieving them all.
Nevertheless, by a 9 to 2 vote, Virginia and Maryland alone dissenting, the apparently offending
idea that new states would enter “on the same terms” with the original thirteen was excised from the
Constitution, leaving only the uncertain wording of Article IV, Section 3, Clause 1.60 The excision did
not have the effect that the “anti” party presumably wished, however. Perhaps this was because of a
subsequent realization, even by the initial doubters, that attempts to rule western settlements as
subordinate colonies was in any case hopeless and that Mason, Wilson and Madison had been essentially
right that a non-hierarchical relation between the original and newly admitted states was an essential
condition for binding the West to the East. The strategic utility and ultimate appeal of the Equal Footing
Doctrine, in fact, resides in its paradoxical nature. It is, to employ Daniel Hulsebosch’s terms,
simultaneously “anti-imperial” and “an instrument of empire”61 That is what American nationalists and
land-company expansionists such as Wilson implicitly understood. Looking back, in the mid-1790s,
Wilson wrote: “We have formed and now enjoy a Constitution, excellent in its Organization, and still
more excellent in its diffusive Principles. One Quality, for which it deserves the Attention and
Attachment of those, who wish to come and reside among us, is this--the Nature of our Government is so
contrived as to expand in just and accurate Proportion to the Settlement of the Country.”62 Fifteen years
59
Farrand, Records, Vol. II, August 29, p. 454.
“New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the
Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the
Consent of the Legislatures of the States concerned as well as of the Congress.”
61 Daniel Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World 16641830 (Chapel Hill: University of North Carolina Press, 2005), p. 220. Others have argued, along similar lines, that while the
Constitution “readily accommodates” the admission of new states with the same legal status as the previously incorporated states,
it is “not so hospitable” to taking in “territories that are not intended to become equal parts of the larger American polity.” Gary
Lawson and Guy Seidman, The Constitution of Empire. Territorial Expansion and American History (New Haven: Yale
University Press, 2004), p. 202.
62 James Wilson, "On the Improvement and Settlement of Lands in the United States," Collected Works of James Wilson, Vol. I,
edited by Kermit L. Hall and Mark David Hall (Indianapolis: Liberty Fund, 2007), pp. 372-373, my emphasis.
60
17
later, Thomas Jefferson made essentially the same observation: “no constitution was ever before so well
calculated as ours for extensive empire.”63
Extending the Extended Republic in the Federalist Papers
We are now in a position to turn to the Federalist Papers, which means in effect to the thoughts
on constitutions and constitutionalism presented by Madison and Hamilton during the Ratification
debates. If we wished to boil down their multifaceted argument to one central thesis it would be that "A
republic may be extended over a large region" (#14). The region they have in mind extends even further
the already extensive federation of thirteen republics, some of which were, on their own, larger than any
republic since Rome. The “ENLARGEMENT of the ORBIT” (#9) within which the American republics
will circulate under the proposed Constitution will encompass not only the thirteen original states but
“such other States as may arise in their own bosoms, or in their neighborhoods” (#14).
Opponents of ratification were constantly drawing attention to “the great extent of country which
the Union embraces,” claiming that it exceeds “the practicable sphere of republican administration” (#14).
Both Madison and Hamilton responded forcefully to these doubters, dismissing the schoolbook theory
that republican institutions are suited only for the governance of a small area and insisting relentlessly that
the American federation’s “extensive territory” give it a unique “advantage” (#63) over confederacies of
the past. Most commentators seem to think that this “advantage,” at least from Madison’s perspective,
has to do mostly with avoiding the tyranny of confiscatory majorities in the states by placing power over
the economy in the national government. But this is certainly not the whole story.
The Admissions Clause, to be discussed below, assumes that the number of states in the Union
will grow. This growth will be abetted by the Constitution’s uniquely compound national-federal
structure. Relieved of local functions by existing state governments, the national government will be able
to focus single-mindedly on the national project of territorial expansion, often by force of arms. Then, at
every stage of the nation’s westward advance, it will leave behind new-minted states, inside ruler-perfect
borders, to self-govern the most recently settled and organized territories, thereby freeing itself once again
to look further to the west.
Extending the extended republic, of course, assumes that the newly created states will remain
constitutionally and psychologically bound to the older states of the Union. This is the context in which
Madison, too, becomes an advocate of energy in the national government. He says, in a famous letter he
wrote during the run-up to Ratification: “If the proposed Government will have energy enough to
maintain the Union of the Atlantic States, it will be soon perceived, I think, that it will be equally capable
at least, to bind together the Western and Atlantic States.”64 As this sentence makes clear, Madison
understood the Union between the states as preparatory to a widening of the Union westward. A month
later, at the Virginia ratifying convention, he tries to answer the skeptics of continental expansion by
arguing that western settlements “will be for the general interest of the Union.” Adding, “The Western
country will be settled from the North as well as from the South, and its prosperity will add to the strength
and security of the Union.”65
63
Letter to Madison, April 27, 1809. The Works of Thomas Jefferson, edited by Paul Leicester Ford, vol. 12? (1905), p. 275?
277? In his 1805 Second Inaugural, Jefferson had already asked: “who can limit the extent to which the federative principle may
operate effectively?”
64 Madison to George Nicholas (May 1788), The Debate on the Constitution Part Two: Federalist and Antifederalists Speeches,
Articles, & Letters During the Struggle over Ratification, January to August 1788, edited by Bernard Bailyn (New York: Library
of America, 1993) p. 444
65 Madison, Virginia Convention (June 1788), The Debate on the Constitution Part Two, p. 671.
18
For his part, Hamilton highlights the unique “accordion” character of American federalism by
citing Montesquieu’s definition of a Confederation as “a kind of assemblage of societies that constitute a
new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as
to be able to provide for the security of the united body” (#9). In the original French, the capacity of “la
république federative” to add new members is made even more conspicuous: “C’est une société de
sociétés, qui en font une nouvelle, qui peut s'agrandir par de nouveaux associes qui se sont unis.”66 In the
Nugent translation consulted by the Framers, this striking passage about the expansionistic potential of
federations is followed immediately by the observation that the Roman Republic, by giving equal political
rights to other peoples of the Italian peninsula, viewed as a kind of Latin Federation, “attacked the whole
globe” and “arrived at her highest pitch of grandeur.”67 For Montesquieu, in other words, Roman
federalism was a system perfectly adapted for expansion by the piecemeal accrual of new member states.
Yet America’s expansionistic federalism remained historically unprecedented. In this country,
since the “nouveaux associes” were not pre-existing, sovereign political societies which, pre-constituted
and therefore capable of collective choice, freely joined the confederation for the sake of collective
security. They were rather cloned or knock-off republics, created under national auspices by colonists
from, or transiting through, the eastern states who brought into uncultivated territories a standard format
for self-government borrowed from the older members of the federation. It is often alleged that, in the
ratification debates, the Federalists were actually nationalists who fooled the public by fraudulently
assuming the name of their enemies, the true defenders of federalism. But the premise behind this charge,
that federalism is basically incompatible with nationalism, is fallacious. The indispensable role that
Hamilton and Madison expected the newly admitted states (“new associates”) to play in swelling the
power of the Union implies, among other things, that the Federalist Papers were not at all deceitfully but
in fact quite honestly and accurately named. This, too, is a topic to which I will return.
In what follows, I will be focusing on five positive purposes that, according to Madison and
Hamilton, the 1787 Constitution was designed to achieve: securing collective defense by means of
federally supervised expansion, concentrating settlements in contiguous and thereby defensible swaths
through its system for creating, granting and selling property rights in land, regularizing the admission of
new states in a way that reduced the incentives for future secession, using frontline states to push the
indigenous population always further westward, and centralizing Indian policy for the same end.
Expansionism as a Strategy of Collective “Defense”
The “freedom” of the defenseless straggler to be scalped on the frontier was no more idealized by
the first settlers in the New World than was, much later, the “freedom” of the commercial seaman to be
dragooned at musket-point into the Royal Navy. Legends of hearty individualism to the contrary,
Americans living in an unforgiving world were not inclined to extreme libertarianism but understood
quite well that self-defense needed to be organized collectively. This experiential background, even more
than literary acquaintance with “primitive” constitutions, explains why one of the principal purposes of
the Constitution, announced in the Preamble, is to “provide for the common defense” and why so much of
the Federalist is devoted to “the safety of the people of America against dangers from FOREIGN force”
(#4). The first third of the Federalist Papers, in fact, defends the proposed Constitution on the grounds
that “weakness and divisions at home would invite dangers from abroad” (#5). Historically, we learn, the
shortest-lived federations were those, such as the Amphytonic league, whose members, even in wartime,
“never acted in concert” (#18). Unless the states, which had been failing to defend themselves effectively
66
67
Montesquieu, De l”esprit de lois, Seconde Partie, Livre IX, Chapitre I, in Oeuvres Complètes (Paris: Pléiade, 1951), p. 569.
Montesquieu, The Spirit of the Laws, translated by Thomas Nugent (New York: Hafner Press, 1975), Vol. I, p. 126.
19
under the loose federation created by the Articles, would accept a more tightly knit Union, they would be
unable, Madison warned, to escape “the chains of Macedon” (#18). The semi-sovereign states must
renounce some of their autonomy to obtain a greater degree of mutual assistance, to avoid being played
off against each other or being slowly devoured by salami tactics. The foremost justification of a
strengthened Union, the Federalist Papers suggests, is the need to build a common front against a
common danger.
Justifying the Constitution by its ability to erect “a formidable state of defense against foreign
enemies” (#5) raises the question: who exactly were the enemies that Madison and Hamilton had in mind?
Who was about to impose Macedonian chains on the new republic? To plumb what Hamilton, Madison
and Jay meant by self-defense, in fact, we need to examine the primary danger against which, in their
eyes, America needed to defend herself.
The Anti-Federalists frequently accused the Federalists of engaging in cynical threat inflation,
exaggerating the danger posed to America by the European monarchies in order to frighten the public into
over-strengthening the Union government. The two-month’s travel time across the Atlantic moat
suggests that there is some truth to the charge. Yet Hamilton insists that the threat was real and even
imminent because it emanated not directly from across the Atlantic but indirectly from the rear. Their
hostility was aimed not at the current federation, whose military weakness was all too evident, but at
future prospects for a stupendous increase in the federation’s future influence in the western hemisphere:
If America’s political development is not somehow obstructed, she will predictably “become the arbiter
of Europe in America” and even “be able to incline the balance of European competitions in this part of
the world as our interest may dictate” (#11). The European powers had by this time realized that
unhampered access to the untapped potential of the West would allow America to “soar to a dangerous
greatness” (#11). To prevent the rise of a powerful American rival in the western hemisphere had become
a foreign policy priority shared by Spain, Britain, and even France. To counteract this malevolent
constriction of American expansion, as a consequence, became the foremost foreign-policy goal to be
furthered by the new Constitution. The key task was to identify an organizational principle able to
facilitate a gradual territorial extent of the confederation through creating new states that, step by step,
would consolidate America’s exclusive control of the West.
To be truly formidable and therefore to deter hostile European powers, the Union had no choice
but to extend its control well beyond the original thirteen states. An effective defensive alliance would,
for all practical purposes, be indistinguishable from an offensive alliance for conquering and settling the
West. Luckily, it was said, the “combination and union of wills, of arms and of resources” required flor
smashing through European and native resistance would also fund itself. America’s military power can
be self-funding by tapping into the wealth that would be generated by the orderly settlement and
cultivation of yet-uncultivated land. As he said during the Constitutional Convention: “The extent &
fertility of the Western Soil” would prove such an irresistible lure for settlers that land sales would yield
almost incalculable “contributions to the Treasury.”68 It was a point to which he recurred in the
Federalist Papers: “the Western territory is a mine of vast wealth to the United States; and although it is
not of such a nature as to extricate them from their present distresses, or for some time to come, to yield
any regular supplies for the public expenses, yet must it hereafter be able, under proper management, both
to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to
the federal treasury” (#38). If control of the territories could be secured, the very promise of future
revenues to be derived therefrom would make America a better credit risk and therefore reduce the
interest rates it would be charged for borrowing money from European lenders.
68
Farrand, Records, Vol. I, p. 585.
20
True, Madison writes repeatedly of “the necessity of the Union, as our bulwark against foreign
danger” (#14). But the Constitution of 1787 was less a bulwark than a battering-ram. The country was
not curling into a defensive crouch but venturing into the wilderness in search of a buried war chest. The
vast wealth to be mined from endless expanses of arable land would be the sinews of America’s wars.
The Constitution, if you choose to accept it, will make you rich and powerful. It will facilitate westward
expansion by force of arms in the teeth of calculating but remote European jealousy and bloody but
ultimately futile indigenous resistance.
For every conceivable threat, it turns out, control of the West was absolutely essential to
American national security. This is true even if Europeans were to attack the Atlantic coastline. In that
case, control of the continental interior would offer the nation what we now call strategic geographical
depth. Against enemies, Hamilton wrote, "The great extent of the country is a further security. We have
already experienced its utility against the attacks of a foreign power" (#28). To curtail this room to retreat
and regroup, the great European powers were angling to pen the Americans to the Atlantic seaboard. The
Americans would respond by conspiring constitutionally to channel, organize, augment, and parlay
ongoing westward migration to break through the barriers to national power and prosperity erected by
hostile Europeans unashamed to stir the indigenous population to commit the savage atrocities all along
the frontier.
Hamilton repeatedly explains that those who frame “Constitutions of civil government” must
“look forward to remote futurity” (#34). Madison, too, says that a viable constitutional order must
accommodate “all the possible changes which futurity may produce” (#44) But the most striking
reference to the future prospects of the Union occurs in an elusive passage where Hamilton is discussing
the shared advantages to be expected from “a unity of government.” He writes: “There are other points of
view in which this subject might be placed, of a striking and animating kind. But they would lead us too
far into the regions of futurity, and would involve topics not proper for a newspaper discussion. I shall
briefly observe, that our situation invites and our interests prompt us to aim at an ascendant in the system
of American affairs” (#11). Proper for a newspaper discussion or not, the “regions of futurity” which the
1787 constitution-makers had in mind involved political and military ascendancy where the competition
from the great European powers was not negligible but certainly weakest, and where indigenous
resistance, however bitter, could be crushed. Needless to say, these zones of futurity lay mostly to the
west.
The Revolutionary War against Great Britain had forced the colonists to hang together or hang
separately. But after the war was over and the peace signed, what common threat could motivate
interstate solidarity and the reciprocal provision of “friendly aids” (#2)? The authors of the Federalist
Papers answer this question by stressing the danger of European powers and their Indian allies encircling
and strangulating the regions of America’s futurity: “The territories of Britain, Spain, and of the Indian
nations in our neighborhood do not border on particular States, but encircle the Union from Maine to
Georgia. The danger, though in different degrees, is therefore common. And the means of guarding
against it ought, in like manner, to be the objects of common councils and of a common treasury” (#25).
If the national government takes charge of national security, it can mobilize the resources of the states
lying at a safe distance from the frontier and which might, on their own, fall into “a supine and listless
inattention to the dangers of a neighbor” (#29) at the cost of losing its own stake in the country’s future.
Anti-Federalist repeatedly attacked the proposed Constitution on the rather doctrinaire grounds
that standing armies, however small, are anathema to republicanism. Hamilton answered, first, that
without military outposts stationed along the frontier, the lure for settlers and the price of land would both
be considerably diminished and, second, that a constitutional prohibition of standing armies would be but
a parchment barrier, sure to be violated given the compelling need to respond to, and prepare for,
contingencies. He makes this point while justifying the constitutional augmentation of federal power as a
21
precondition not only for building inland forts to protect trans-Appalachian American settlers but also for
regaining control of the northwestern posts that were still under British control (and would remain so until
1795), reinforcing Indian contempt for the imbecility of the American government. Regaining these posts
would not only make is possible to control vast swaths of territory and also, in a striking phrase,
“facilitate future invasions of the remainder.” Typically enough, Hamilton begins with anticipating how
America’s enemy will respond to the country’s rising power:
In proportion to our increase in strength, it is probable, nay, it may be said certain, that Britain
and Spain would augment their military establishments in our neighborhood. If we should not be
willing to be exposed, in a naked and defenseless condition, to their insults and encroachments,
we should find it expedient to increase our frontier garrisons in some ratio to the force by which
our Western settlements might be annoyed. There are, and will be, particular posts, the possession
of which will include the command of large districts of territory, and facilitate future invasions of
the remainder. It may be added that some of those posts will be keys to the trade with the Indian
nations. Can any man think it would be wise to leave such posts in a situation to be at any instant
seized by one or the other of two neighboring and formidable powers? To act this part would be
to desert all the usual maxims of prudence and policy (#24).
The northwest posts and other frontier garrisons “constitute” the tips of the spears of civilian settler
encroachment on Indian lands. They are also a window onto the regions of America’s futurity.
Convinced that the Anti-Federalists were blind to the potentials that were latent in the West and
that only a strengthened national government could unlock, Hamilton needed to respond to their anxieties
about the small standing army that the proposed Constitution would allow the Union to keep up in
peacetime. His defense of a frontier constabulary illustrates the centrality of “constituting” a military
force to increase its ability to fight effectively to the general tasking of “constituting” a political system
capable of surviving in a hostile environment. The constitutional dilemma is to national security forces
flexible but not arbitrary. Rigid restraints, to start there, are off the table: “restraints upon the discretion
of the legislature in respect to military establishments in time of peace, would be improper to be imposed,
and if imposed, from the necessities of society, would be unlikely to be observed” (#24). The absence of
rigid restraints will permit flexibility, but what can be done to reduce the possibility that national security
forces will be used recklessly and arbitrarily? The danger is greatly mitigated, Hamilton wrote, by the
“clause which forbids the appropriation of money for the support of an army for any longer period than
two years a precaution which, upon a nearer view of it, will appear to be a great and real security against
the keeping up of troops without evident necessity” (#24). Adamantly rejecting a constitutionalism of
restraints in matters of national security (aka territorial expansion), Hamilton insists upon “the
impropriety of restraints on the discretion of the national legislature” (#25) in military affairs. Lodging
“the whole power of raising armies” in the legislature, “a popular body, consisting of the representatives
of the people periodically elected” (#24), will guard against troops being levied and deployed by the
executive alone for spurious necessities or “pretenses of approaching danger” (#25). This arrangement
does not place rigid legal restraints upon “THE powers proposed to be conferred upon the federal
government, in respect to the creation and direction of the national forces” (#24). Any attempt to outlaw
standing armies in peacetime would be flagrantly ignored “from the necessities of society” (#24), by
which he means mostly the dangers faced on the Western frontier. In Madison’s classic statement:
With what color of propriety could the force necessary for defense be limited by those who
cannot limit the force of offense? If a federal Constitution could chain the ambition or set bounds
to the exertions of all other nations, then indeed might it prudently chain the discretion of its own
government, and set bounds to the exertions for its own safety. How could a readiness for war in
time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and
establishments of every hostile nation? (#41)
22
To create a system for raising and deploying military force which is nimble enough to respond to a
complex and changing threat environment but difficult to hijack for illicit purposes, the Constitution
replaces “explicit provisions against military establishments in time of peace” (#24) with a political
structure designed to increase the likelihood that standing armies will be raised and used only for widely
accepted public purposes and that means, above all, for continental expansion.
Before I turn from national security to questions of property and prosperity, I would like to
reexamine briefly to the analogy between “constituting a republic” and “constituting an army” with which
I began. That the Framers had some such analogy in mind is suggested by an interesting passage in which
Madison explains why the state were not fully sovereign under the Articles:
In cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the
Indians; of claims under grants of land by different States; and, above all, in the case of trials by
courts-martial in the army and navy, by which death may be inflicted without the intervention of
a jury, or even of a civil magistrate (#40).
The list is telling not only because it reflects the need for a higher level of government capable of doing
what the separate states could not so effectively do or perhaps not accomplish at all. What stands out in
this passage is the remark about courts-martial. The Articles did not fully embody the “solecism” of “a
sovereignty over sovereigns” (#20) because, in this case at least, the general government acted directly on
individuals, without the mediation of the states. This capacity of the national military authority, under a
commander-in-chief, to act directly on individuals, without the mediation of the states, is exactly what the
new Constitution proposed to expand and enhance. The centralizing thrust of the Constitution is revealed
in “the operation of the government on the people, in their individual capacities” (#39). Madison’s
reference to courts-martial, therefore, helps explain what he means when he says that “the great principles
of the Constitution proposed by the convention may be considered less as absolutely new than as the
expansion of principles which are found in the Articles of Confederation” (#40). It is admittedly a bit of a
stretch to take a principle of military discipline, applied in the national army, and extend it to civilian rule.
But even in peacetime, federal jurisdiction and responsibility must be increased, and the states must
retreat into a subordinate role, if the Indians are to be defeated and, as we will now see, venomous
disputes over Western lands acceptably resolved.
The Real Endowment Effect
The experiment was unprecedented mostly because of where it took place. Endowment was not
fate; but it did present a historically unparalleled opportunity. Never before had a cluster of semiindependent republics, located on the edge of an immense expanse of virtually undefended arable land,
decided to league together with the aim of creating an indeterminate number of wholly new, co-equal
members of their federation by populating the contiguous wilderness with cultural and ethnic kin. The
private, communal, business, partisan, sectional, and sectarian aspirations of Americans were frequently
at odds. But almost every group, class, region, and persuasion could be brought to see opportunity in the
West.
Borrowing the idea of the tragedy of the commons from David Hume, Hamilton adapted it to
American circumstances. That is to say, he re-conceived it as the potential tragedy of a conceivable
future commons. The prospect of controlling the Western territory, this “amazing extent of Country,”69
will be lost to the citizens of all the states, Hamilton warned, unless they managed to erect a national
69
Farrand, Records, Vol. I, p. 238.
23
government able to pool their resources and coordinate their efforts. The real “danger” shared by the
thirteen states, then, was the danger of losing “all the tempting advantages which nature has kindly placed
within our reach” (#11), that is, of squandering the once-in-a-millennium chance to take joint and settled
control of “the mine of vast wealth” (#38) which was the West.
While discouraging each branch and level of government from encroaching on the others’ turf,
the Constitution encouraged, rather than simply allowed, American pioneers and settlers to encroach on
Indian lands. Further evidence for this proposition, if more is needed, can be unearthed by digging deeper
into the Framers’ understanding of the relation between government and private property. Elaborating on
the Preamble, which declares establishing justice to be one of the principal purposes of the Constitution,
Madison wrote: “Justice is the end of government. It is the end of civil society” (#54). But what exactly
does “justice” entail. It presumably includes the defense of property owners against the confiscatory
paper-money machinations of debtor-majorities in state legislatures or “those irregular and high-handed
combinations which sometimes interrupt the ordinary course of justice” (#70). To the extent that the
Constitution is meant to prohibit such schemes, it can be said to oppose “takings.”70 But this is certainly
not the Framers’ last word on the subject.
When we look more closely, we discover that Madison puts the idea that government is instituted
for the protection of property in the mouth of an imaginary slave owner (#54). Speaking for himself, he
says that government is instituted to protect not property but rather the “unequal faculties of acquiring
property” (#10). That may not seem to make much of a difference since debtor-relief legislation would
presumably chill the acquisitive ardor of would-be proprietors as well as violating the rights of owners.
But it does make a difference because the most important form of property at the time was property in
land. Madison does not specify all the ways in which land can be acquired, but we don’t need much
historical research to tell us that the process was complex, confusing, dangerous, duplicitous and violent.
One of the principal hopes of the Framers was that the powers that Constitution granted to the general
government were sufficient to rationalize this chaotic process and therefore to protect not property but the
possibility of acquiring property in the future, above all, property in arable western land.
Hamilton, for his part, had no trouble identifying the domain where the unequal faculties of
American citizens to acquire property would be most fruitfully exercised: “We have a vast tract of
unsettled territory within the boundaries of the United States” (#7). Fears that an electorally accountable
national government would systematically confiscate existing wealth were weaker than hopes that it
would help acquisitive citizens finagle, conquer, clear, occupy, plant, and harvest for profit currently
uncultivated land. Seen from the perspective of land-hungry speculators and settlers, the U.S.
Constitution as a whole might therefore be viewed as a giant inverse Takings Clause, designed to wrest
land by hook and crook from its previous inhabitants. The design did not work perfectly, but it worked
well enough.
The extent to which the tender consciences of settlers and speculators needed legalistic assuaging
is hard to determine. But off-the-shelf justifications for Indian dispossession were not hard to find. The
Neo-progressives typically argue that “constitutionalization” in general is “driven primarily by political interests to insulate
certain policy preferences from popular pressures.” Ran Hirshl, Towards Juristocracy: The Origins and Consequences of the New
Constitutionalism (Cambridge, Mass.: Harvard University Press, 2004), p. 213. And it is certainly true that the Contracts Clause
was inserted into the Constitution by creditors and their allies to resist the demands of debtors and tax delinquents. Woody
Holton, Unruly Americans and the Origins of the Constitution (New York: Hill and Wang, 2007). But theories which elevate the
Framers’ alleged fear of confiscatory majorities into the prime motivation behind the 1787 Constitution may be underestimating
the extent to which the Framers advocated continental expansion in America because they anticipated that, like the imperial
expansion of Republican Rome, it would mitigate tensions between rich and poor. Consider in this regard the following
statement made at the Convention by Charles Pinckney: “There is more equality of rank and fortune in America than in any other
country under the sun; and this is likely to continue as long as the unappropriated western lands remain unsettled.” (Farrand,
Records, Vol. I, June 25, p. 410).
70
24
most common argument was that private property in land is a wholly political institution, non-existent in
the absence of a system of man-made laws and institutionalized judicial and policing systems for
resolving conflicts about ownership and enforcing valid claims. As Locke had authoritatively declared:
“in governments, the laws regulate the right of property, and the possession of land is determined by
positive constitutions.”71 Formulated more abstractly, private property in land requires constitutionally
enabled government performance before it requires constitutionally disabled government forbearance.
To understand the legal principles justifying settler disregard for indigenous title to land, it is
helpful to dip briefly into Emer de Vattel’s Law of Nations, a work frequently cited by the Framers and
conveniently representative of the genre. Vattel defines “the constitution of a state” as “nothing more than
the establishment of the order in which a nation proposes to labour in common for obtaining those
advantages with a view to which the political society was established.”72 This strikingly instrumental,
morally neutral and proto-Weberian definition leads naturally to the question: What advantages may
constitutional organization serve? To answer this question, Vattel asks another: “whether a nation may
lawfully take possession of some part of a vast country, in which there are none but erratic nations whose
scanty population is incapable of occupying the whole?” And he answers in a Lockean vein: “Their
unsettled habitation in those immense regions cannot be accounted a true and legal possession; and the
people of Europe, too closely pent up at home, finding land of which the savages stood in no particular
need, and of which they made no actual and constant use, were lawfully entitled to take possession of it,
and settle it with colonies.”73 Property is a political institution that requires submission to general
authority capable of deciding disputes about ownership when they arise. With no established form of
government, “wandering tribes”74 have no claims over the soil, where their ancestors may have been
hunting and gathering for centuries, that the land-hungry white man, previously “penned up” in an
overcrowded Europe, is legally obliged to respect.
Two days after the Northwest Ordinance was passed by Congress, Richard Henry Lee wrote
praising the Ordinance for making it possible "that a strong toned government should exist, and the rights
of property be clearly defined."75 That strong government was a precondition not merely for the
protection of property but also for the creation, definition, and interpretation of property rights was
obvious in the West, where the mists of time had not yet shrouded the origins of ownership in assertions
of power. In the Ohio lands, creating titles and deeds and organizing governments to protect the
reliability interest in titles and deeds were visibly one and the same. Formulated more conventionally,
market society depends on government for a variety of essential inputs. Markets in land, for example,
presuppose that surveys have been competently conducted and that personnel in the bureau of titles and
deeds do not routinely sell their integrity in the shadows but are subject to bureaucratic discipline and
elementary rules of transparency.
This brings us to another important public input into the private economy, nowhere more
essential than in the American West, namely the securing of domestic tranquility: “The protection and
security which the new Government promises to purchasers of the fœderal lands, will have several
71
Locke, Second Treatise of Government, §50, p. 29
Emer de Vattel, The Law of Nations (Indianapolis: Liberty Fund, 2008), Book I, Chap. 3, §27, pp. 91-92.
73 Vattel, Law of Nations, Book I, Chap. 18, §209, p. 216; Those native peoples who “chuse to live only by hunting,” he writes,
“usurp more extensive territories than, with a reasonable share of labour, they would have occasion for, and have therefore no
reason to complain, if other nations, more industrious, and too closely confined, come to take possession of a part of those lands”
(Chap. 8, Of Commerce, §83).
74 Vattel, Law of Nations, Book I, Chap. 18, §209, p. 216.
75 Letter to Washington, 15 July 1787, cited in Merrill Jensen, The New Nation. A History of the United States During the
Confederation 1781-1789 (Boston: Northeastern University Press, 1981), p. 358.
72
25
consequences extremely favorable to the rights and interests of the Western Country.”76 Madison also
explained how the states under the supervision of the federal government could accelerate the peopling of
the western lands: “Emigrations will be made from those parts of the United States which are settled, to
those parts which are unsettled. If we afford protection to the Western country, we will see it rapidly
peopled.”77 As one historian of the period remarks, “Protecting the lives, liberties, and property of
westerners—or establishing the basis for order and society—meant opening the Mississippi, clearing out
the British, and conquering the Indians.”78 Just as America’s commercial shipping fleet needed the
protection of an American naval force, so Western settlers needed the protection of standing forces
manning a string of inland cantonments. That is to say, “a force constituted differently than the militia”
(#28) was indispensable for the creation and protection of “fiat property,” title not purchased from legal
owners but decreed or invented by the say-so of the government that managed to gain military suzerainty
over the land. If the individual states were to continue to work at cross purposes, moreover, “our
commerce would be a prey to the wanton intermeddlings of all nations at war with each other; who,
having nothing to fear from us, would with little scruple or remorse, supply their wants by depredations
on our property as often as it fell in their way” (#11). The inability of dissociated individuals, without
collectively sustained military support, to protect their property from the depredations of hostile nations
clinches the case that property is a wholly political institution that can be created and protected only
collectively, and never by “autonomous” or politically dissociated individuals.
Settlers will be hesitant to improve their property, moreover, without the kind of legal certainty in
acquisitions and transactions that can be supplied only by some form of the rule of law: “The price of
improved land in most parts of the country is much lower than can be accounted for by the quantity of
waste land at market, and can only be fully explained by that want of private and public confidence,
which are so alarmingly prevalent among all ranks, and which have a direct tendency to depreciate
property of every kind” (#15). In late eighteenth-century America, especially, “the great art of
government” also included giving “encouragement to the honest industry of Mankind”79 not only by
blocking the confiscatory measures of debtor majorities in state legislatures, but also by helping
speculators and settlers slowly-but-surely expel the Indians from the Western territories.
The project was, yes, to protect pre-existent wealth but also and more importantly to create
opportunities for present and future Americans to exercise their unequal acquisitive faculties. This gave
an intensely prospective, venturesome, and forward-leaning quality to the Constitution’s apotheosis of
property—an aspect that, paradoxically, was slighted in the Progressives’ criticism of the Framers for
their stingy schemes for slapping down the poor. When they said that, without government, “society
would soon become a general scene of anarchy, and the world a desert” (#65), the Framers meant that
local governments established under the aegis of, and in coordination with, a general government would,
on a forward-rolling basis, replace frontier chaos with municipal order and, in the process, produce
economic prosperity. The desert would not bloom, however, if, after scratching it, the colonizing
authorities failed to plant “the seeds of liberty” there. A well-designed Constitution will create various
inducements to clearing forests and building farms and towns. The basic right to retain the fruits of one’s
own labor must be understood as just such a lure, created and maintained by both national and state
governments to further the collective project of economic development and westward expansion. In this
respect, too, the Framers borrowed their liberal imperialism and raison d’état constitutionalism from
Locke: “that Prince, who shall be so wise and godlike as by established laws of liberty to secure
76
Madison to George Nicholas (May 1788), The Debate on the Constitution Part Two: Federalist and Antifederalists Speeches,
Articles, & Letters During the Struggle over Ratification, January to August 1788, edited by Bernard Bailyn (New York: Library
of America, 1993) p. 444
77 Madison, Virginia Convention (June 1788), The Debate on the Constitution Part Two, p. 671.
78 Patrick Griffin, American Leviathan: Empire, Nation, and Revolutionary Frontier (New York: Farrar, Straus and Giroux,
2008), p. 195.
79 Locke, Second Treatise, §42, p. 26.
26
protection and incouragement to the honest industry of Mankind, against the oppression of power and
narrownesse of Party will quickly be too hard for his neighbours.”80 No regime is so powerful that it
never requires voluntary cooperation from members of society weaker than itself. To become “too hard”
for its Indian neighbors, the American Union secured military protection and legal encouragement for the
inherently unequal acquisitive faculties of the settlers who had chosen to brave the hardships and dangers
of the West.
Improvement of inland transportation was another vital government input into the private
economy. “America was not composed of detached and distant territories,” but rather of “one connected,
fertile, widespreading country” (#2) that invited the dredging the rivers, the digging of canals, the
improvement of roads. Overland travel may be cumbersome now, but it would be slowly and relentlessly
improved: “the intercourse throughout the Union will be facilitated by new improvements. Roads will
everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and
meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout, the
whole extent of the thirteen States” (#14). To achieve benefits that would not accrue to any of the states
already in existence, the federal government had to take the initiative in building transportation links
among the states and especially between the states and the territories, facilitating “the mutual
transportation and exchange of their various commodities” (#2). By promoting commerce, the
government helped individuals who helped themselves. Predictably, in fact, “as commerce has
flourished, land has risen in value” (#12). A spectacular example would be the contribution of federal
diplomats to opening up the Mississippi for the transshipment of agricultural produce. By facilitating
access to distant markets, the national government would contribute substantially to the economic value
of private title to arable farmland in the western zones of trans-Appalachia. Under the new Constitution,
in any case, “intercourse throughout the Union will be facilitated by new improvements” which will turn
the whole country, including the territories, into “one great, respectable, and flourishing empire” (#14).
Eased transportation was especially important for binding the transmontane settlements to the coast: “The
communication between the Western and Atlantic districts, and between different parts of each, will be
rendered more and more easy by those numerous canals with which the beneficence of nature has
intersected our country, and which art finds it so little difficult to connect and complete” (#14). By
signaling that “The arrangements that may be necessary for those angles and fractions of our territory
which lie on our northwestern frontier, must be left to those whom further discoveries and experience will
render more equal to the task” (#14), Madison makes clear that the market-opening project of the Framers
would be going on for the foreseeable future
Without some reliable system for settling controversies abut who owns what with relative clarity
and definitiveness, the West would never flourish economically or become a source of government
revenue. Disagreement about title to agriculturally productive farmland, in particular, was no trivial
matter, because “Territorial disputes have at all times been found one of the most fertile sources of
hostility among nations. Perhaps the greatest proportion of wars that have desolated the earth have sprung
from this origin” (#7). The land would be “deluged in blood” (#7), Hamilton theatrically inveighed, were
the general government not strengthened enough to resolve the “discordant and undecided claims” (#7)
among rival claimants to western land. Going over the same ground to be covered in later papers by
Madison, Hamilton recalls that landed and landless states
have heretofore had serious and animated discussion concerning the rights to the lands which
were ungranted at the time of the Revolution, and which usually went under the name of crown
lands. The States within the limits of whose colonial governments they were comprised have
claimed them as their property, the others have contended that the rights of the crown in this
article devolved upon the Union; especially as to all that part of the Western territory which,
80
Locke, Second Treatise, §42, p. 26.
27
either by actual possession, or through the submission of the Indian proprietors, was subjected to
the jurisdiction of the king of Great Britain, till it was relinquished in the treaty of peace (#7).
The drive toward Union was fuelled by the need to sort out these claims and establish a system for
conveying title to land acceptable to all important social forces. Under the Articles, Virginia and
Maryland were at daggers drawn about the validity of land-company claims to property in the Northwest.
But they were nevertheless both committed to turning the territory over to the national government to
manage. That is to say, assigning to the federal government the exclusive authority to incubate new states
in the territories was a natural strategy for escaping the irresolvable conflicts that had hitherto impeded
continental expansion. The Confederation government received this “mine of vast wealth” not only from
Virginia’s 1784 cession of the Old Northwest but also through a sequence of other less extensive cessions
of murkily demarcated and overlapping Western land claims from three other81 landed states. Imposing a
degree of “domestic tranquility” on these territories, needless to say, was an essential precondition of
putting up the land for sale: “A very large proportion of this fund has been already surrendered by
individual States; and it may with reason be expected that the remaining States will not persist in
withholding similar proofs of their equity and generosity. We may calculate, therefore, that a rich and
fertile country, of an area equal to the inhabited extent of the United States, will soon become a national
stock” (#38). The story of why and how these four landed states ceded their Western land claims to the
Confederation, making Congress itself into the first Bureau of Land Management, is complicated in its
details.82 But peering through the tangled skein we can see that the basic motivation behind the cessions
was a shared realization that conveyable title could not be established unless the power to settle disputes
could be concentrated only in an “umpire or common judge” able “to interpose between the contending
parties” (#7). This Hobbesian umpire or common judge could only be the general government. To win
converts to the proposed Constitution, therefore, Hamilton naturally emphasized the threat to the
developing system for resolving land disputes without which unequal American faculties for acquiring
land in the West would be doomed to languish unused: “It has been the prudent policy of Congress to
appease this controversy, by prevailing upon the States to make cessions to the United States for the
benefit of the whole. This has been so far accomplished as, under a continuation of the Union, to afford a
decided prospect of an amicable termination of the dispute” (#7).
The prospect of disunion was so hair-raising because it would reignite bitter quarrels about land
in the West: “A dismemberment of the Confederacy,” Hamilton wrote, “would revive this dispute, and
would create others on the same subject. At present, a large part of the vacant Western territory is, by
cession at least, if not by any anterior right, the common property of the Union” (#7). If the proposed
Constitution were not ratified, “the States which made the cession, on a principle of federal compromise,
would be apt when the motive of the grant had ceased, to reclaim the lands as a reversion” (#7). And how
would the landless states then be likely to respond? They would no doubt raise the point that the lands
between the Appalachians and the Mississippi were wrested from Great Britain by the joint efforts of all
the colonies and therefore were in some sense common property, not because of the voluntary cessions to
a now-defunct confederation but by the anterior right created by the common grant given to all the states
together in 1783: “The other States would no doubt insist on a proportion, by right of representation.
Their argument would be, that a grant, once made, could not be revoked; and that the justice of
participating in territory acquired or secured by the joint efforts of the Confederacy, remained
undiminished” (#7). Such conflicts of interest would be enflamed by conflicting interpretations of what
was just:
81
New York (1782), Massachusetts (1785), and Connecticut (1786); the other landed states were South Carolina (1787), North
Carolina (1790), and Georgia (1802).
82 Abernathy
28
If, contrary to probability, it should be admitted by all the States, that each had a right to a share
of this common stock, there would still be a difficulty to be surmounted, as to a proper rule of
apportionment. Different principles would be set up by different States for this purpose; and as
they would affect the opposite interests of the parties, they might not easily be susceptible of a
pacific adjustment (#7).
The purpose of a strengthened Union government was not to eliminate conflicts over land, of course, but
simply to reduce the “ill humor and animosity” (#7) of the adverse parties, by creating a system for
resolving conflicts without triggering cycles of contagious violence.
When discussing the Territories Clause, Madison fastened on the proviso: “nothing in this
Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular
State” and remarks: “The proviso annexed is proper in itself, and was probably rendered absolutely
necessary by jealousies and questions concerning the Western territory sufficiently known to the public"
(#43). To conciliate the losing party in a dispute over land title, it was essential to place the power to
decide in a third party, visibly independent from the partialities of litigants and sufficiently capable of
enforcement to discourage attempts to challenge its decisions. Only by embracing a strengthened Union
could the states avoid plunging into a civil war promoted by the Western lands.
What seems to concern Hamilton most of all was the fear that the thirteen semi-independent
states could never, if they cleaved parochially to their disconnected sovereignties, settle, incorporate and
maintain control of the continental interior. The power to expand westward had to be transferred from the
states to the Union. This fits the basic plan of the Constitution, granting the general government a
monopoly over “certain enumerated objects, which concern all the members of the republic, but which are
not to be attained by the separate provisions of any” (#14). Among the challenges that these states,
operating disjointedly, were unable to meet effectively was resolving “claims under grants of land by
different States” (#40). Recognizing that “bickerings and animosities may spring up among the members
of the Union,” because of “interfering claims of boundary” among other reasons, the authors of the
proposed Constitution had been careful to include a judicial “method of terminating territorial disputes
between the States, under the authority of the federal head” (#80). So difficult to resolve were disputes
over land title that the federal courts, in an important exception to the principle that the national judiciary
must stay out of internal state disputes, are even given jurisdiction over controversies “between citizens of
the same State claiming lands and grants of different States” (#80). But by far the most important of the
goals that could be achieved only by interstate cooperation were territorial expansion and Indian
dispossession.
National Government as the Incubator of “Futurity”
A central weakness of the Articles, in the eyes of Madison and Hamilton, was the absence of any
regularized procedure for admitting new states.83 The Article 4, sec. 3 Admissions Clause of the proposed
Constitution would plug this loophole. (The Admissions Clause itself, it should be recalled, is not a
restraint on power but rather a script or if-then rule indicating how specific government officials must
83
The idea that the lack of an admissions clause provided a powerful stimulant and rationale for revising the Articles of
Confederation was by no means new. A committee report, delivered to the Congress of the Confederation on September 22,
1783, advised Congress to take a series of steps to prepare select districts in the Northwest for admission to the Union as co-equal
states, and then added: “But if Congress conceive it doubtful whether the powers vested by the Instrument of Confederation and
perpetual union are competent to the establishment of such government, that then the committee be instructed to prepare and
report to Congress a proper address to the respective States for remedying the defects of the said instrument in this respect." Cited
in Robert F. Berkhofer, Jr., "Jefferson, the Ordinance of 1784, and the Origins of the American Territorial System," The William
and Mary Quarterly, Third Series, Vol. 29, No. 2 (April, 1972), pp. 238-239.
29
behave under specified conditions.) In Federalist #38, Madison provides a lengthy commentary on this
important difference between the two constitutional frames, drawing attention to the failure of the Articles
to provide the federal government with any legal authority to start preparing western settlements for
eventual statehood, an urgent matter given the tenuousness of the country’s hold on the trans-Appalachian
territories. “In the articles of Confederation,” he says, “no provision is found on this important subject.”
Madison even claims that “The eventual establishment of NEW STATES seems to have been overlooked
by the compilers of that instrument” (#43). But did the Articles’ framers really omit any procedure for
admitting new states in a fit of absent mindedness?
Madison knew very well that the framers of the Articles had not “overlooked” the eventual
establishment of new states. For one thing, Article XI of the ratified Articles reads “Canada acceding to
this confederation, and adjoining in the measures of the united States, shall be admitted into, and entitled
to all the advantages of this union.” This provision reflected the expectation that the number of co-equal
states would grow. The real problem was that the preprogrammed elasticity of the Union under Article
XI seems very limited and even stingy. Madison interpreted the whole of Article XI, including the
second clause (“but no other colony shall be admitted into the same, unless such admission be agreed to
by nine States”) in the following way: “Canada [meaning the Province of Quebec] was to be admitted of
right, on her joining in the measures of the United States; and the other COLONIES, by which were
evidently meant the other British colonies [Nova Scotia, Newfoundland, etc.], at the discretion of nine
States” (#43). So, on its face, the Articles of Confederation foresaw the admission of other states wishing
to defect from the British Empire, but not of states arising within the boundaries of the federation.
The disingenuousness of Madison’s claim that the framers of the Articles “overlooked” the
eventual establishment of new states becomes clear when we focus on the way this very topic was hotly
debated in the Congress of the Confederation as the final draft of the Articles was being prepared. An
admissions clause, anticipating the incorporation of new states in the West, was proposed and debated and
quite deliberately deleted from the final version of the Articles. The ultimate omission resulted from a
dramatic standoff in Congress between Virginia on the one hand and Pennsylvania and Maryland on the
other. The heated dispute was, naturally, about western land. Legal-sounding arguments were put
forward by James Wilson of Pennsylvania among others to demonstrate that the West was a “common
stock,” not to be monopolized by any individual state but to be shared by all the states jointly. The
alleged grounds were that the trans-Appalachian territories once granted to states such as Virginia by
ancient charters had been reclaimed by the crown before the Revolution and that the joint shedding of
blood during the Revolution had vested these now re-appropriated crown lands in the Union as a whole.
But Virginia simply refused to cede to Congress its claim to the territory between the Ohio River and the
Great Lakes unless all Maryland and Pennsylvania land-company claims to title in the Ohio lands were
declare null and void. This standoff meant that Congress, when it framed the Articles, had no national
domain from which it could carve new states for eventual admission into the Union. The failure to
include an elastic clause in the Articles, in other words, was due not to oversight but to the lack of any
national domain from out of which new states could be carved, that is, to an impasse over the disposition
of the West.
Unlike their predecessors, the Framers of 1787 could include an Admissions Clause in their
Constitution only because, in the interim, a national domain had come into existence. The “great
propriety” with which, as Madison boasted, “the new system supplied the defect” (#43) in the Articles
depended wholly on the acceptance by Congress of territorial cessions by four states between 1782 and
1786, including especially the 1784 cession by Virginia of the Old Northwest. By placing the vast lands
north of the Ohio River and South of the Great lakes into the hands of the federal government, however,
the Virginia cession also upended the structure of the federation as it had existed under the Articles.
30
Prior to the cessions, the Confederation had been a league made up solely of federated states,
some of whom had claims to western lands. Once a national domain was created (and the assumption
was that all the states with claims in the West would eventually sign them over to the general
government) federal-state relations radically changed. From this point on, the Union was more than the
sum of its (state) parts. The Union was now constituted by the several states plus the territories. It
became, we might even say, a federation of present and future states. While the constitutions of the states
became static, the constitution of the Union became dynamic.84 While the states would focus on
economic development within their borders, the general government would focus on territorial
development, on extending the borders of the Union as a whole. By securing “domestic tranquility” on
the frontier and enabling settlers with legally enforceable land title to clear the forests and transform the
fertile soil into cultivated fields, the national authorities would also be giving a boost to an ongoing
population boom. This is perhaps the most interesting sense in which they were engaged in “popular
constitutionalism.” The Constitution they wrote was meant to support both a demographic explosion of
new births and immigrant arrivals which would crowd out the Indians and leave the current small seacoast
population behind in the dust. The Philadelphia Framers provided a legal frame for a national
government able to make new member states and fill them with a rapidly growing population. The Union
they were creating would be the house of the future.
In the years between the Virginia cession of 1784 and the Federal Convention of 1787, as
Madison explains, the Congress of the Confederation took over responsibility for organizing the West,
including devising plans for temporary governments there. It had no explicit constitutional authority to
do any of this under the Articles; but it did so anyway from palpable necessity:
Congress have assumed the administration of this stock. They have begun to render it productive.
Congress have undertaken to do more: they have proceeded to form new States, to erect
temporary governments, to appoint officers for them, and to prescribe the conditions on which
such States shall be admitted into the Confederacy. All this has been done; and done without the
least color of constitutional authority (#38).
The old Congress had simply been pushed into these unconstitutional or extra-constitutional actions. by
Virginia. Under the Articles, but only after the creation of the national domain, Congress was legally
allowed to organize some military support for settlers in the Old Northwest. What it was not
constitutionally allowed to do but what it was obliged to do by the Virginia cession was to deploy
surveyors, create land patents in order to sell clearly demarcated plots, discourage widely dispersed
settlements difficult to defend and instead encourage settlers to conglomerate together in areas where they
could support each other in case of conflict with the indigenous tribes, slowly partition the wider region
into three to five potentially distinct co-equal states, and set up provisional governments. An important
purpose of the 1787 Constitution, as the passage just cited implies, was to legalize or constitutionally
authorize what the national government, committed to expansion, had been, and would continue being,
compelled in any case to do.
After making this point, Madison goes on to stress the way in which the Admissions Clause in the
proposed Constitution is itself hedged with conditions:
The general precaution, that no new States shall be formed, without the concurrence of the federal
authority, and that of the States concerned, is consonant to the principles which ought to govern
such transactions. The particular precaution against the erection of new States, by the partition of
Peter S. Onuf writes of “a dynamic, expansionistic conception of the Union.” The Origin of the Federal Republic.
Jurisdictional Controversies in the United States, 1775-1787 (Philadelphia: University of Pennsylvania Press, 1983), p. 162.
84
31
a State without its consent, quiets the jealousy of the larger States; as that of the smaller is quieted
by a like precaution, against a junction of States without their consent (#43)
The Admissions Clause, in other words contains the fossilized remains of the same jealousies and
anxieties that had postponed the creation of a national domain until 1784. But what Madison is ultimately
saying in his commentary on the Admissions Clause is simply that the 1787 Constitution is superior to the
Articles of Confederation because it is much better designed to handle the problems of the West. The
Constitution’s designer annexationism has two aspects: the vesting of exclusive authority over the
incubation of future co-equal states in the national government and the assigning of important auxiliary
functions in the expansionist project to the self-governing states. Having examined the first, I turn now to
the second.
Frontline and Rear-Guard States in the Constitution of Expansion
The compound republic, “neither wholly NATIONAL nor wholly FEDERAL” (#39) was
“contrived to expand,” in piecemeal or add-on modular fashion, as the population grew and immigrant
flows poured westward. Madison, therefore, did not merely write, but patently believed that if the states
“were abolished the general government would be compelled, by the principle of self-preservation, to
reinstate them in their proper jurisdiction" (#14). The compound structure of the American republic of
republics would help the people of the country “increase their external force” (#9). Symmetrical
federalism would be a force multiplier, coordinating the pooling of resources from across the states to
break through the obstacles to full and unchallenged American authority over western lands. By force of
arms if necessary, the Union would enlarge its territorial extent as it added new states, singly or a few at a
time. These new states would consolidate the Union’s gains while their surplus populations would surge
across their westernmost borders, joining the long-distance relay race to the West. As a result, even the
most nationalistic among the Framers, despite their contempt for state-level legislative actions hostile to
the inviolability of contracts, originally accepted and continued to support semi-sovereignty in the states.
They did so because they saw self-governing states, their numbers to be regularly increased, as
indispensable moving parts in America’s two-level constitutional machinery for clearing the cluttered
pathway to expansion.
The expansionist strategy crystallized in the Equal Footing Doctrine includes a powerful
disincentive to future secession by subsequently admitted states. The carrot of equal status is made more
appealing by the addition of promises of eastern support to the exposed frontier. As Hamilton wrote,
thinking of Indian raiding parties: “It happens that some States, from local situation, are more directly
exposed” (#25). An example of frontier exposure that preoccupied Madison was Georgia which, in the
summer of 1787, was involved in a bloody war with the Creek Indians. But every frontier state
will thus find, in regard to its safety, an inducement to make some sacrifices for the sake of the
general protection; so the States which lie at the greatest distance from the heart of the Union, and
which, of course, may partake least of the ordinary circulation of its benefits, will be at the same
time immediately contiguous to foreign nations, and will consequently stand, on particular
occasions, in greatest need of its strength and resources. It may be inconvenient for Georgia, or
the States forming our western or northeastern borders, to send their representatives to the seat of
government; but they would find it more so to struggle alone against an invading enemy, or even
to support alone the whole expense of those precautions which may be dictated by the
neighborhood of continual danger. If they should derive less benefit, therefore, from the Union in
some respects than the less distant States, they will derive greater benefit from it in other respects,
and thus the proper equilibrium will be maintained throughout (#14).
32
The exchange of obedience for protection is the essence of the social contract. In this case, frontline
states in America’s expanding empire will be given protection by Union forces in exchange for foregoing
the temptations of secession. This idea is codified in Article 4, Section 4: "The United States . . . shall
protect [every State in this Union] against Invasion."
For logistical reasons alone, the trans-Appalachian territories can be efficiently organized for
incorporation into the Union only in the form of states that, in local matters, govern themselves. This is
the context in which to note that the Constitution not only promises to protect frontier states against
invasion. It also codifies the role in frontier defense played by the devolution of power in an expanding
Union where travel and communication remained slow. The Constitution contains an often overlooked
emergency power, equivalent to the President's implied power to repel sudden attacks without asking
permission from Congress, but this time granted to the states, most relevantly to states on the distant
frontier: "No State shall . . . engage in War, unless actually invaded, or in such imminent Danger as will
not admit of delay" (Art. 1, sec. 10, clause 3). That is to say, the frontier states are constitutionally
allowed to break the federal government’s monopoly on the legitimate use of violence against those
Indian nations, in particular, which are likely to attack white settlers without warning, making it wholly
impractical to ask permission from Congress to respond. This is presumably what Paul Frymer means
when he says that “Federalism—often cited as an obstacle to national governing authority—can
accelerate the process of expansion by setting additional processes in motion so that at least some part of
the state is always pressing forward, demanding more land.”85
The competent performance of governmental functions at the state level, in general, disencumbers
the general government of local headaches and thereby strengthens it for the pursuit of shared national
purposes such as manning and provisioning military garrisons for the westward moving frontier:
it is to be remembered that the general government is not to be charged with the whole power of
making and administering laws. Its jurisdiction is limited to certain enumerated objects, which
concern all the members of the republic, but which are not to be attained by the separate
provisions of any. The subordinate governments, which can extend their care to all those other
subjects which can be separately provided for, will retain their due authority and activity (#14)
The Anti-Federalists claimed that the proposed Constitution was aiming at a thorough abolition of the
state governments. The short-term political necessity of rebutting such charges does not mean that
Hamilton’s and Madison’s reassurances to the contrary were for public consumption only. During the
Convention, having been accused with some justification of wishing to reduce the states to mere
administrative units, Hamilton emphatically denied that he favored “a total extinguishment of state
governments.”86 To be sure, skeptics might reply that he made this concession in a spirit of pragmatism,
since a constitution for a fully consolidated republic would never be ratified. But his considered view is
suggested by a passage where he, too, stresses the importance for national purposes of off-loading
important local functions onto the state governments: “Is the administration of justice between the citizens
of the same State the proper department of the local governments? These must possess all the authorities
which are connected with this object, and with every other that may be allotted to their particular
cognizance and direction” (#23). And just as the state governments must manage state affairs, so the
national government must be allowed to manage national affairs: “Not to confer in each case a degree of
power commensurate to the end, would be to violate the most obvious rules of prudence and propriety,
and improvidently to trust the great interests of the nation to hands which are disabled from managing
them with vigor and success” (#23). To encroach successfully on Indian turf, it was essential to prevent
Paul Frymer, “Building an American Empire: Territorial Expansion in the Antebellum Era,” UC Irvine Law Review, Vol. 1,
No. 3 (2012), p. 918.
86 Farrand, Records, Vol. I, July 19, p. 328.
85
33
the two levels of government from encroaching on each other’s. This is what is wrong with the trite
polarity of government-under-law versus the-constitution-as-a-tool-of-power. Both/and is a better
description of the American case. To expand the territorial reach of the country and to centralize Indian
policy for the sake of dispossessing the Indians with the least amount of violence, it was necessary to
keep each level of government within its assigned sphere. This is why the Constitution, as a matter of
“prudence,” did not want “the State governments to encroach upon the national authorities” or “the
national government to encroach upon the State authorities” (#17). The Union gladly abdicated the
burden of controlling the internal affairs of the states in order to focus single-mindedly on the task of
controlling the territories, concentrating on the most important of the goals that the states could not
separately effect.
Power wielders sometimes voluntarily abdicate power because not all forms of power are worth
having. It all depends on what one wants to do. For one thing, where there is power, there pressure is
applied. Abdicating power, therefore, can be a rational strategy for insulating oneself from unwelcome
pressure. Other forms of power entail heavy responsibilities and sleepless nights. Power can be a
liability rather than an asset if it absorbs scarce time, effort and resources for little palpable advantage, if
it reduces overall compliance with other decisions, or if it spawns more resentful enemies than grateful
friends. To explain the appeal of federalism, Madison and Hamilton stress the efficiency gains that come
from sharing parts of an excessive workload. This is why they say that if the “subordinate governments”
did not exist, the federal government would have to invent them.
Hamilton’s and Madison’s remarks about the indispensability to the dynamic Union of the
relatively static self-governing states make it plain that “enumeration” is less a form of limitation than of
specialization.87 What Adam Smith wrote about the independent judiciary, that it was a result of the
division of labor,88 is also true of federalism. The classic Hamilton-Jefferson disagreement over the
proposed Bank of the United States is frequently cited as evidence that states’ rights are inherently hostile
to central-state activism and national power and that the drag that federalism imposes on the federal
government can only be shed by a (properly or improperly) broad construction of the necessary and
proper clause. Although this way of thinking is not entirely erroneous, it represents a selective view of
the issue. Understood as a constitutionally organized form of burden sharing, federalism’s contribution to
active government in general and the promotion of expansion in particular seems difficult to deny.
After the Revolution, the Americans “reared the fabrics of governments which have no model on
the face of the globe” (#14). The Framers of 1787 hoped to repeat the performance. The Constitution
that they framed may sometimes look like a bundle of compromises but it also creates an ingenious
division of labor between the general government and the state governments, well adapted to westward
expansion. For a vast sprawling country to be ruled according to republican principles, organized
republican subdivisions are indispensable. By taking over the functions of local legislation, taxation, and
policing, the state governments freed the general government to focus on problems that the constituent
republics could not easily manage separately, such as presiding over the difficult transformation of
western settlements into new states and guaranteeing their sustainable connectedness to the Union. The
frontier states also assumed their share of the burden of repelling sudden attacks launched by tribal
raiding parties within their borders. (Parallel to this arrangement, but outside the bounds of
constitutionally sanctioned federalism, was the unofficial deputizing of armed settlers in the territories,
87
That the constitutionalism of the Framers is largely about specialization and the division of labor is indicated by the many
references in the Federalist Papers to “the constitution of the executive department” (#67 ), “the constitution of the Executive”
(#70), “the Constitution of the House of Representatives” (#57, #62), “the constitution of the national Senate” (#59), “The
constitution of the senate” (#63), “the constitution of the federal judiciary” (#80) and “the constitution of the judiciary
department” (#51).
88 According to Smith, “the separation of the judicial from the executive power seems originally to have arisen from the
increasing business of society, in consequence of its increasing improvement.” The Wealth of Nations, p. 680.
34
beyond the borders of the westernmost states, to fight and disperse the Indians.) This is the structure that,
Madison boasts, has “no parallel in the annals of human society” (#14). Under the Articles, the United
States had rudely built “a compound instead of a simple, a confederate instead of a sole, government”
(#23). This was already unprecedented. All that remained was “to improve and perpetuate” what
Madison called “the design of a great Confederacy” created by the Articles, which means removing its
imperfections while fulfilling the promise implicit in “the experiment of an extended republic” (#14).
This means pushing westward the land the federation controls under the guidance of the general
government whose function in the national division of labor is, above all, the incubation of new, co-equal
states in forcibly occupied western lands.
The Opium of our Natural Enemies
"If we are to be one nation in any respect,” Madison wrote, “it clearly ought to be in respect to
other nations" (#42). These “other nations” certainly included “the Indian nations in our neighborhood,”
(#25) whose attacks on frontier settlements were slowing down American incursions into the remainder of
the country’s dreamed-of western commons. With this in mind, let us return briefly to Hamilton’s
description of the federation’s national-security environment:
On one side of us, and stretching far into our rear, are growing settlements subject to the
dominion of Britain. On the other side, and extending to meet the British settlements, are colonies
and establishments subject to the dominion of Spain. This situation and the vicinity of the West
India Islands, belonging to these two powers create between them, in respect to their American
possessions and in relation to us, a common interest. The savage tribes on our Western frontier
ought to be regarded as our natural enemies, their natural allies, because they have most to fear
from us, and most to hope from them (#24).
The indigenous tribes were the “natural enemies” of the settlers because, presumably, control of the land
could not be shared by peoples so different in modes of life. A winner-take-all struggle was therefore
underway. The Constitution was designed to ensure that the United States would achieve its inevitable
victory with the least amount of bloodshed, dispossessing the Indians and re-occupying their vacated
lands. The primary instrument for taking what was assumed would be a winner-take-all victory was a
Union of co-equal states presided over by a semi-independent national authority exercising monopoly
authority over territorial affairs. States otherwise jealous of their power, proved willing to cede power
over Indian policy to the central government because the Indian threat was palpably shared by all the
states. Centralizing Indian policy in the federal government was also accepted as necessary because the
state governments, on their own, were admittedly too weak and short-sighted to manage expansion with a
minimum of bloodshed: “there are several instances of Indian hostilities having been provoked by the
improper conduct of individual States, who, either unable or unwilling to restrain or punish offenses have
given occasion to the slaughter of many innocent inhabitants” (#15). This weakness of the state
governments meant that individual residents in the border-states, where Britain and Spain were apparently
encouraging Indian raids on American settlements, were avenging themselves on random groups of
Indians, not necessarily those who originally attacked them. They were thereby sparking cycles of
frontier revenge that could potentially consume dozens if not hundreds of lives. This is the sole context,
to my knowledge, where impulse-control constitutionalism makes an appearance in the Federalist
Papers:
The neighborhood of Spanish and British territories, bordering on some States and not on others,
naturally confines the causes of quarrel more immediately to the borderers. The bordering States,
if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent
interest or injury, will be most likely, by direct violence, to excite war with these nations; and
35
nothing can so effectually obviate that danger as a national government, whose wisdom and
prudence will not be diminished by the passions which actuate the parties immediately interested
(#3)
The impulses being controlled here, of course, belonged not to officers of the federal government but to
frontiersmen in the border states. Because state and local authorities lacked the capacity or inclination to
punish, even though the murderous rampages of settlers upon Indians obviously made Indian violence
against settlers much worse, the federal government’s capacity to intervene had to be increased.
Madison’s famous criticism of the Articles, that it attempted “to reconcile a partial sovereignty in
the Union, with complete sovereignty in the States" (#42) also occurs in the context of an argument for
centralizing Indian policy in the hands of the national government. The power to regulate “Commerce
with the Indian Tribes” must be understood broadly to include the management of violent land disputes as
well as the lucrative peltry trade. Relations with the Indians, Madison explains, will be monopolized by
the national government using two exclusively federal powers, namely the power to negotiate treaties
with and the power to wage war against foreign nations:
The regulation of commerce with the Indian tribes is very properly unfettered from two
limitations in the articles of Confederation, which render the provision obscure and contradictory.
The power is there restrained to Indians, not members of any of the States, and is not to violate or
infringe the legislative right of any State within its own limits. What description of Indians are to
be deemed members of a State, is not yet settled, and has been a question of frequent perplexity
and contention in the federal councils. And how the trade with Indians, though not members of a
State, yet residing within its legislative jurisdiction, can be regulated by an external authority,
without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This
is not the only case in which the articles of Confederation have inconsiderately endeavored to
accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete
sovereignty in the States" (#42)
The imperative of centralizing Indian policy reflected the belief of the Framers that independent states
were engaged in violently impatient and avaricious expansionism, needlessly provoking murderous Indian
resistance, and that the federal government was much better positioned to carry out a much more prudent
policy of gradual expansion which would push the Indians westward slowly, as their game retreated from
areas of settlement and thereby taking them unawares like a frog initially placed in cold water and only
slowly boiled to death.
According to Alexis de Tocqueville, writing in the 1830s, the compound republic, neither wholly
consolidated nor a mere league of sovereign states, played an essential role in Indian dispossession. The
national government talked the talk of justice and humanity. But it collaborated with the states in walking
the walk of continental expansion. Indian policy needed to be centralized in order to replace unruly,
costly, and unnecessarily violent patterns of avaricious land-grabbing conducted by individual states with
the federal policy of slow-but-sure expansion. The official centralization of Indian policy, however,
masked the fact that, in practice, the federal government periodically "handed [the Indians] over as
subjects to the legislative tyranny of the states."89 It did this subtly, of course, using the tools made
available by the strategic federalism built into the Constitution. The mass expulsion and extermination of
the aboriginal population of North America was accomplished by joint federal-state action. The states
brutally harassed the Indians and drove them westward; while the national government, “shocked,
shocked” by this unconstitutional incursion by the frontline states into an area of exclusive federal
jurisdiction but also wishing to avoid the monetary costs of outright war, signed treaties, smoked peace
89
Tocqueville, Democracy in America, Lawrence trans., p. 387.
36
pipes, engaged in trade, bought land, and enticed the tribes to move peacefully westward by making
promises of free land which the tribal peoples could occupy “forever.” Every boundary line setting a
limit to white settlement, as George Washington himself had acknowledged when commenting on the
1763 Proclamation Line, must be viewed “as a temporary expedient to quiet the Minds of the Indians and
must fall of course in a few years.”90 Bogus treaties therefore functioned as the opium of our natural
enemies. Or, in Tocqueville’s words: "The states' tyranny forces the savages to flee, and the Union's
promises make flight easy."91 Tocqueville saw American federalism, in other words, as a kind of nice
guy/tough guy routine whereby the Indians were mauled by the states and assuaged by the Union.
Continental expansion, as suggested above, required the frontier states, with tacit permission, to break the
federal government’s monopoly on the legitimate use of violence against foreign nations. This two-faced
approach allegedly baffled the Indians into doing the white man's bidding at the lowest possible cost to
the American settlers. His analysis suggests that the idea of an American Israel (“Make no treaty [that you
intend to keep] with them and show them no mercy”) did indeed provide a kind of blueprint for
continental expansion.
On August 9, 1787, while the Federal Convention was still underway, a report was submitted to
Congress on the increasing ferocity with which the northern Indians were beginning to resist the territorial
expansion to which the Union had committed itself by the Northwest Ordinance passed a few weeks
earlier. The report condemned the provocative acts of settler violence against the Indians and suggested
that the Federal Government, in order to keep the country from being dragged into wholly pointless
cycles of revenge, behave in a more diplomatic way: "instead of a language of superiority and command;
may it not be politic and Just to treat with the Indians more on a footing of equality, convince them of the
Justice and humanity as well as the power of the United States and of their disposition to promote the
happiness of the Indians."92 In the Northwest Ordinance, the brazen contradiction between Article III
(“The utmost good faith shall always be observed towards the Indians; their lands and property shall
never be taken from them without their consent”) and Article V (“There shall be formed in the said
territory, not less than three nor more than five States”) exposed the decoy peacemaking endorsed by
civilized constitutionalists educated, no doubt, in the doctrines of Vattel and others with similar views
concerning uncivilized “wandering tribes.” The eye-catching reference to “a footing of equality” in the
August 9 report to Congress on the Ohio Indians, who were unquestionably viewed by most Americans as
an inferior breed, therefore provides one more piece of evidence that the Founding generation wielded
equal footing as a strategic tool for easing and managing westward expansion. They treated the promise
of equal footing as a binding moral commitment when doing so helped them establish and maintain white
control over fertile lands. And they treated the promise of equal footing as a cynical ruse when doing so
helped them manipulate nonwhite populations into abandoning these same lands with a minimum of
violent resistance.
Conclusion
The Equal Footing Doctrine is a quintessentially enabling constitutional principle. It enables the
states and the federal government to harmonize their distinct but interlocking and mutually reinforcing
Letter of George Washington to William Crawford, Sept. 21, 1767; “Washington’s long experience of the West and his
strongly held views about its importance, leading in 1784 to his active participation in measures to bind it to the newly
confederated states, more than anything else, except the war itself, served to prepare him for the role of nation builder.” W.W.
Abbot, “George Washington, the West, and the Union,” in Don Higginbotham (ed.), George Washington Reconsidered
(Charlottesville: University of Virginia Press, 2001), p. 209.
91 Tocqueville, Democracy in America, Lawrence trans., p. 337.
92 Cited in Reginald Horsman, Epansion and American Indian Policy 1783-1812 (Norman: University of Oklahoma Press, 1992),
pp. 41-42, my emphasis.
90
37
contributions toward shared or overlapping aims.93 It was adopted and embraced by the American
Framers, against non-negligible opposition, above all because of two highly desirable general purposes,
continental expansion and Indian dispossession, that it was expected to promote. Symmetrical federalism
in an expanding republic of republics was the organizing idea behind the piecemeal settling and
partitioning of western lands and their gradual preparation for admission into the Union as self-governing
states. Indian killing, treaty making, insatiable greed, nationalist pride, land fever, geopolitical
maneuvering, and even dreams of an empire of liberty all played a role in the continental expansion that
occurred under the authority of the Constitution. But credit must also go to the Equal Footing Doctrine
because it provided an ingenious legal frame for employing salami tactics against indigenous peoples and
for avoiding Western secessions as the Union grew. This principle was not, and did not have to be,
“entrenched” against the changing preferences of America’s doers and shakers, because it was fairly well
adapted to serving these preferences even as they evolved.
Even if you agree that the twin projects of continental expansion and Indian displacement played
some role in the design of the 1787 Constitution, you may doubt that it played such a central role as I
have been suggesting. True, many of the principal purposes of the Constitution, as outlined in the
Federalist Papers, have some connection to the challenge and promise of the West. The need to repel
foreign threats probably referred mostly to threats emanating from the interior. The need to resolve
interstate disputes certainly included disputes arising from conflicting claims to western lands. The need
to promote commerce referred to relations of conflict as well as trade with the Indians and, of course,
involved developing commercial trade routes between the maritime and the transmontane regions. The
need to borrow money from European lenders at relatively low interest rates could be satisfied by the
promise of revenue from the sale of land in the territories. And so forth. But were there not other
purposes, equally important to the Framers, that have nothing to do with the West, such as the allimportant aim of disempowering confiscatory majorities in the states by handing power over economic
questions to a government beyond their reach?
The 1787 Constitution is obviously a multi-purpose instrument of government. Trying to assign
exact weights to the various purposes it was meant to serve is presumably a futile exercise. Nevertheless,
there is one basic reason for thinking that the need to manage territorial expansion and Indian
dispossession was much more central to the original constitution-making project than it appears if we try
to squeeze the controversy about the Constitution into the stylized debate between Federalists and AntiFederalists. To understand why the Constitution was, as a practical matter, quickly accepted and
complied with by thirteen states with very different interests and patterns of life, we need to identify some
national project that would strongly appeal to them all. Southerners and Northerners as well as, a few
years later, Hamiltonians and Jeffersonians were all dazzled by the prospects of futurity offered by the
West. As the historian William Earl Weeks writes, the Union appealed to differently situated states that
were otherwise jealous of their power because it promised to satisfy “a preexisting colonial-era desire for
expansion and security that could not be met by the individual colonies.”94
But if the delegates to the Constitutional Convention framed a constitution for expansion, we still
have to explain why this rather important fact has been consistently downplayed, at least in the political
theory literature on the Federalist Papers. Without presuming to give a complete answer to this question,
I think we would be on the right track if we emphasized the same sort of “national reticence” that led to a
whitewashing of the effects of the three-fifths clause on the first seventy years of our national history.95
For instance, when a meticulous and well-meaning student of the question, such Gottfried Dietze,
93
"The constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was
organized." Coyle v. Oklahoma (1911) 221 U.S. 559, 580.
94 William Earl Weeks, The New Cambridge History of American Foreign Relations: Volume 1, Dimensions of the Early
American Empire, 1754–1865 (Cambridge University Press, 2013)
95 Garry Wills, “Negro President”. Jefferson and the Slave Power (New York: Mariner Books, 2005), p. 13.
38
expressly argues that the federalism defended by Madison and Hamilton was “not for the purposes of
aggrandizement,”96 we are justified in suspecting that his reading has been shaped by the wishful thinking
of a refugee from Nazi Germany, unwilling to admit that the Framers had designed a constitution to
accommodate an irrepressible Drang nach Westen or insatiable search for Lebensraum.
Be this as it may, the idea that constitutionalism is about “what cannot be done” fits poorly with
the expansion-minded thinking of the Framers. The 1787 Constitution does not merely limit power via,
for instance, the ex post facto clause, but also vests powers in the federal government by means of, among
others, the necessary and proper clause, and in the President, say, by the Commander in Chief clause. In
that sense, the Constitution is obviously enabling as well as well as restricting. We have now stated the
obvious. Those who emphasize the Framers' ambition to build a fiscal-military state on the European
model naturally emphasize the power-vesting provisions (we might as well call them "enabling") of the
1787 Constitution.97 My interest runs not contrary but parallel to theirs.
If enabling constitutionalism is a generic concept, the Equal Footing Doctrine is surely one of its
most fascinating sub-varieties. Above all, it presents a challenge to the distinction between government
under law, associated with liberalism, and law as a tool of power, associated with autocratic regimes.
Equal Footing Doctrine is definitely a tool of power; but it achieves the twin goals that the Framers set for
American power (continental expansion and Indian dispossession) by regulating the relation between the
federal government and the states as a division of labor and, in that sense, compelling both levels of
government to operate under law.
That the future of Americans lay in the West was no discovery of 1787. But before the cessions,
starting with the Virginia cession of 1784, this future was in the hands of the (landed) states. After the
cessions, the shared future of Americans was handed upwards, becoming in theory a monopoly concern
of the national government. Once a national domain came into existence, the Confederation ceased to be
a league of sovereign states and became a union of states that had transferred sovereign power over the
territories, and that meant over future members of the Union, into the hands of the national authority.
This is what it means to say that the Constitution of 1787 was playing catch-up, giving retrospective legal
form to the extra-constitutional actions taken by the Congress under the Articles to survey, settle, regulate
and prepare for statehood the territories of the Old Northwest.
As a form of the division of labor, federalism organized a devolution of power which,
disencumbering the general government from local preoccupations, allowed it to focus its energies on the
organization and management of expansion. The federal government’s “relinquishing” of control over
most intra-state affairs was no enigmatic act of self-restraint, therefore, because this was a power it could
not exercise effectively and, in any case, did not want. What it wanted, instead, was to maximize its
control over the territories, where the shared American interests in future power and prosperity were most
evident. Nor was the decision of the seaboard states to renounce all pretensions to ruling over future
states in an imperial manner an example of unfathomable self-sacrifice. They rejected the model of
asymmetrical federalism because they thought it impractical logistically and a disincentive to mass
immigration, and because they were persuaded that symmetrical federalism would reduce the incentives
for subsequently admitted states to secede. Stipulating that newly admitted states could not legally secede
was a waste of words; what mattered was creating a structure that would make secession seem
unappealing. Similarly, the original thirteen states (seven “landed” and six landless) eventually
transferred power over the territories to the federal government because states and private land
96
Gottfried Dietze, The Federalist: A Classic on Federalism and Free Government (The Johns Hopkins University Press, 1999),
p. 222.
97 Max Edling, A Revolution in Favor of Government (Oxford University Press, 2008).
39
corporations were unable, left to their own devices, to sort out the snarl of conflicting titles to western
lands.
As a defining principle of both state-state and state-federal relations, the Equal Footing Doctrine
implies, first of all, that the original thirteen states can claim no legal superiority over later entrants into
the Union. This implies that the original thirteen states, by embracing symmetrical federalism in an
expanding republic of republics, were implicitly equating their own legal status with that of states which
were the creatures not the creators of the Union. This logic presumably helps elucidate Abraham
Lincoln’s historically odd assertion, echoing Daniel Webster, that “The Union is older than any of the
States; and, in fact, it created them as States.”98
But the Equal Footing Doctrine allowed the original states to extract a quid-pro-quo from the
federal government in exchange for relinquishing their “constituent” status. The monopoly power of the
federal government over the territories was a power to create self-governing states. It was therefore the
precise opposite of the power to swallow or extinguish independent states against which the AntiFederalists had railed. And it was an explicitly provisional power that would have to be shed once the
assigned state-making mission was successfully accomplished. After the territorial phase had passed and
statehood had been granted, the federal power was to be swiftly redirected toward reorganizing the next
frontier. (That the geographical frontier would eventually end, requiring the federal government to look
for new developmental opportunities, was probably not uppermost on the Framers’ minds.)
This is the sense in which the Equal Footing Doctrine defies or belies the conventional contrast
between government under law and law as a tool of power. Power sharing between federal and state
governments, as Hulsebosch implies, did not diffuse or dilute state power but, on the contrary, allowed a
state with limited administrative resources to punch above its weight: “the American constitutional
doctrine of federalism entailed just this concentration of power.”99 The Equal Footing Doctrine, as a
foundational principle of the enabling federalism established by the Constitution of 1787, was meant to
function as a tool of power by subordinating both levels of government to a mutually beneficial division
of labor in the service of continental expansion.
The Equal Footing Doctrine, finally, is highly context-dependent. It is an organizational principle
applicable not to federations in general but only to a serendipitously located federation with a large,
"uninhabited" and contiguous territory into which settlers were chaotically pouring from the federated
states and which was so difficult for seaboard officials to reach that a degree of home rule was a matter of
practical necessity. The Equal Footing Doctrine was designed to regularize the otherwise chaotic settler
flow, to remove interstate conflict about the fate of the territories, to create a simple and easily understood
rule that applies to all the contiguous territories, to clarify in advance the goal to be reached by the multistep process leading to admission as a state, to bind the transmontane states to the maritime states, and to
serve as a lure to bring additional settlers from an overcrowded Europe to help clear the forests in order to
build farms and towns and scare away the game on which the Indian tribes depended. It also provided an
attractively anti-colonial and republican justification to an unsentimental process that would have seemed
very familiar to those who lived under the “primitive constitutions” of antiquity, namely the seizure of
land from militarily weaker groups by the application of force majeur.
98
Message to Congress, July 4, 1861. Don E. Fehrenbacher (ed.), Abraham Lincoln: Speeches & Writings 1859-1865 (New
York: Library of America, ), p.
99 Hulsebosch, Constituting Empire, p. 8.
40
Coda
Among the many important gaps and omissions in this draft, none is more significant that the
crucial role of sectionalism in the story of continental expansion. The Louisiana Purchase itself had
significant sectional implications. Leaping across decades, we arrive at the terrible denouement. The
essence of the Republican platform in the Presidential election of 1860 was a prohibition on slavery in
any newly acquired territories. Lincoln was therefore right to claim that the South seceded from the
Union because it lost an election. The 1860 Republican Party platform was anathema in the South,
among other reasons, because the exclusion of slavery from all newly admitted states was seen as a
malicious attempt to erect a second Proclamation Line, this time obstructing Southern ambitions to add
the slave-state of Cuba to the Union.100 In other words, the Civil War revealed the accuracy of the
Framers’ perception that the expansionist mission held great dangers as well as great opportunities. It
was also the grim fulfillment of Hamilton’s prophesy that if the Union proved unable to manage the
“hostile pretensions” of the states to western lands, “the sword would sometimes be appealed to as the
arbiter of their differences” (#7).
100
Robert E. May, The Southern Dream of a Caribbean Empire 1854-1861 (Gainesville: University Press of Florida, 2002).
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