BEING SEEN LIKE A STATE: HOW AMERICANS (AND BRITONS) BUILT THE CONSTITUTIONAL INFRASTRUCTURE OF A DEVELOPING NATION.

Author:Hulsebosch, Daniel J.
 
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"One objection which heretofore existed to the entering into any com[mercia]l treaty with America, seems wearing away apace: In the late unsettled state of the Union when each exercised individual rights of sovereignty, and adopted or rejected at discretion all public measures, there could be no assurance of realizing compacts with foreign powers,--now my Lord, there is an appearance of a regular establishment of Govern[ment], and some prospect of efficiency...."

--British Consul Phineas Bond (Philadelphia) to the Duke of Leeds ([dagger])

TABLE OF CONTENTS INTRODUCTION: THE FEDERAL CONSTITUTION AND THE ATLANTIC WORLD 1242 I. CREDIT AND THE INTERNATIONAL DIMENSIONS 1247 OF CONSTITUTION-MAKING A. The Enlightenment and 1247 Constitutional Reform B. European Audiences for the 1249 Constitution: Friends, II. BRITISH GRIEVANCES AND AMERICAN 1255 CONSTITUTIONAL REFORM A. The Anglo-American Origins of 1255 the "Critical Period" B. The Constitutional Infrastructure of 1271 International III. THE FOREIGN RATIFICATION DEBATE 1285 A. Persuading the British 1285 B. The Board of Trade Reviews 1303 the Constitution IV. THE FIRST DEVELOPING NATION? 1314 CONCLUSION 1318 INTRODUCTION: THE FEDERAL CONSTITUTION AND THE ATLANTIC WORLD

In a series of recent articles, David Golove and I have argued that American constitution-making began as an international process: the revolutionary generation conceptualized, drafted, and institutionalized their new constitutions not only for domestic constituencies but also for foreign audiences. (1) To appeal to those audiences, and to persuade them to trade and invest in post-revolutionary America, the Framers incorporated several guarantees of international commitments under treaties and the law of nations into the Federal Constitution. (2) Many Founders conceived of the Federal Constitution in particular as a promise to foreign nations, conveyed in a legible script for action, that the United States would fulfill its international obligations as a member of what they saw as "the civilized world." (3) The so-called "critical period," a diagnosis to which foreign critics contributed, demonstrated to many Americans the necessity of structural reform to give the federal government not only the powers to tax and spend, but also to regulate international commerce, manage foreign policy, and enforce obligations under treaties and the law of nations. (4) The resulting Constitution centralized the foreign affairs powers up from the states and then distributed those powers across the federal government to foster expertise and to insulate some aspects of foreign relations from the relatively democratic House of Representatives. (5) In addition, and most relevant to this Article, it entrenched within the American constitutional order institutional commitments to fulfill international obligations, particularly public and private financial obligations. Under the Supremacy Clause in Article VI, existing as well as future treaties became the law of the land, enforceable in state and federal courts. (6) That Article also recognized the validity of all debts "entered into, before the [a]doption of th[e] Constitution." (7) These two guarantees in Article VI were the Constitution's only retroactive provisions. In addition, state governments were forbidden to issue paper money, impair the obligations of contracts, and conduct war or diplomacy with foreign nations, including Native American nations within the nation's borders. (8) Finally, a powerful and independent Executive would play a leading role in developing foreign policy and enforcing it within the states. (9)

Did it work? If federal constitution makers sought to demonstrate their capacity for self-government to foreign audiences, did anyone notice? If they noticed, what exactly did they notice? Or was it all, regardless of diplomatic purposes and consistent with the conventional account of the Founding, just an intramural affair?

This Article argues that federal constitution-making did play an important role in persuading Europeans to recognize the United States along a number of dimensions. Before and after the Philadelphia Convention, European diplomats, Enlightenment thinkers, displaced British loyalists, transatlantic merchants, and overseas investors paid close attention to constitutional developments in the United States. Together they formed important foreign audiences for American political development in the generation after the Revolution. Even the term "audience," suggesting passive observation, is too weak. Instead, foreign actors participated in a number of ways. Although foreigners did not intervene directly in the Constitution's drafting or formal ratification, international demands, incentives, and reactions shaped the way that Americans undertook constitution-making in the 1780s and beyond.

Ultimately, the influence flowed both ways across the Atlantic. Foreign demands clarified American perceptions of what they wished to achieve by constitutional government. In turn Americans helped redesign the legal infrastructure of the international system they sought to enter, particularly respecting the protection of foreign capital, setting precedents defining liberal governance that remain powerful today as neoliberal ideals. Those notions of good governance have, however, been abstracted from their specific, and forgotten, origins. After the Revolution, Americans and their foreign audiences began to map out what it meant for a postcolonial polity to enter the European community of "civilized nations," not just formally with treaties of peace and commerce, but also as a full participant in the Atlantic economy of trade and finance. Converting imperial connections into international relations, the Framers sought to create not a fiscal-military state of the sort familiar to European experience but instead a fiscal-commercial state approximating Enlightenment ideals. (10) There was no conventional blueprint. (11) There were instead legacy relations of the British Empire mixed with new ideas about how the United States could profit from European connections without being drawn into Europe's wars, a combination that also appealed to some in France and Britain as a political ideal and a strategic convenience. (12)

The document carried some of the burden of proof but did not suffice. Single-text constitutions were portable and legible but not comprehensive. (13) Given the Federal Constitution's ambiguities and gaps, construction mattered. By the early 1790s, after a period of inquiry and assessment that can be called the foreign ratification debate, influential European audiences became persuaded that the new federal government was capable of adhering to the law of nations, conducting diplomacy, and regulating commerce. (14) The connection between constitution-making and commercial integration was not simply sequential. Foreign governments and their subjects causally linked their behavior to the Constitution and the federal institutions built on it. Proof was diplomatic normalization, particularly with Britain, and an unprecedented amount of capital investment, first from Dutch investors and eventually also from the British. (15) Diplomatic and commercial normalization with Britain had cascading effects on other relationships. It quickly brought nominal friends, like the Spanish, (16) and ongoing enemies, like many of the Northwest Native American nations, to the negotiating table. (17) Paradoxically, the recognition process with France, the United States' first military ally, passed through a long period in which the royal and then revolutionary governments treated the United States as a quasi-state, a phase that ended with the termination of the alliance during the Quasi-War. (18)

This Article, however, focuses on the relationship that was most critical to the commercial development of the early United States: the Anglo-American connection. It begins in Part I by providing a brief account of the Federalist vision of international relations and identifies debt as a common denominator among the foreign audiences. Part II traces the British critique of American government during the 1780s, as well as the partial incorporation of that foreign perspective among constitutional reformers. Part III analyzes the British assessment of the Federal Constitution and the government built on it. Part IV begins to sketch out connections between the British assessment and financial integration of the United States into European markets, connections that will be mapped more precisely in future work.

  1. CREDIT AND THE INTERNATIONAL DIMENSIONS OF CONSTITUTION-MAKING

    1. The Enlightenment and Constitutional Reform

      Integrating the United States into the Atlantic world of commerce and culture had been a central, and in the 1780s, still unfulfilled, goal of the Revolution. Nations, like individuals, were presumed to be sociable and had the duty as well as right to work together with others. To that end, American constitution makers sought to construct a government that, consistent with a dominant strand of the Enlightenment, would encourage sociability--particularly, commerce--within and beyond national borders. The way to do so, they believed, was to modulate impassioned, localist, and short-term politics, while promoting decision-making along a broader temporal and spatial horizon. (19)

      Although the nature of the connections between nations, and even the definition of which polities counted as "nations," was contested, few Americans doubted that there was in fact an international community of states that should, at least, govern their relations by common legal principles in war and peace. (20) Commercial sociability was hardly the same as perpetual harmony. (21) Commercial competition could be fraught and even incite war. (22) Yet competition was not itself war. Nor did it have to lead to war, if nations committed themselves institutionally, Federalists...

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