Representing the Nation: Gouverneur Morris's Nationalist Constitutionalism

• Author: Jonathan Gienapp
• Position: Associate Professor of History, Stanford University
• Pages: 67-102

Representing the Nation: Gouverneur Morris’s

Nationalist Constitutionalism

JONATHAN GIENAPP*

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

I. MORRIS THE FORGOTTEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

II. “A MERE ROPE OF SAND”: FEELING LIKE STATES. . . . . . . . . . . . . 72

III. “THE LOVE OF OUR COUNTRY IS A PRIMAL SENSE”. . . . . . . . . . . . 78

IV. “A REPRESENTATIVE OF AMERICA”. . . . . . . . . . . . . . . . . . . . . . . 83

V. “RIGHTEOUSNESS ESTABLISHETH A NATION”. . . . . . . . . . . . . . . . 84

A. Empowering the National Government. . . . . . . . . . . . . . . . . 85

B. Remaking the Union. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

VI. REPRESENTING THE “TRUE INTERESTS”. . . . . . . . . . . . . . . . . . . . . 91

VII. HOLDING THE NATION TOGETHER. . . . . . . . . . . . . . . . . . . . . . . . . 97

CONCLUSION: DISILLUSIONMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

INTRODUCTION

Few truisms have proved as enduring as the belief that there was little national-

ism at the time of the American Founding. As one standard account goes, most

citizens of the new American union thought in terms of their home states. These

were their individual nations and the ultimate basis of their loyalties and identi-

ties. The union mattered, but to many, if not most, it was understood as a compos-

ite of unit states, each of which had their own history, laws, customs, manners,

and sources of affection, none of which the Revolution had undone.

1

Early

*Associate Professor of History, Stanford University. For helpful feedback on earlier drafts of this

article, thanks to participants in the Salmon P. Chase Distinguished Faculty Colloquium at the Georgetown

Center for the Constitution, especially Bill Treanor, John Mikhail, and Melanie Miller, as well as Lindsay

Chervinsky, Liz Covart, Julian Mortenson, Rachel Shelden, and Emily Sneff. For encouraging me to look

deeper into Gouverneur Morris, thanks to Jonathan Chavez. © 2023, Jonathan Gienapp.

1. See John M. Murrin, A Roof without Walls: The Dilemma of American National Identity, in

BEYOND CONFEDERATION: ORIGINS OF THE CONSTITUTION AND AMERICAN NATIONAL IDENTITY 333–48

67

constitutionalism seemingly reflected these habits of mind; the individual states

claimed most meaningful governmental power during the decades following in-

dependence, and the union’s first constitution, the Articles of Confederation, recog-

nized this state-centric order.

2

While the federal Constitution drafted in 1787 to

replace it undoubtedly altered that order, the dominance of the states, it is often pre-

sumed, did not change.

3

While the Constitution expanded federal power and enabled

the new government to act directly on individuals, it did not equip that government

with general police powers nor the expectation that it would supersede the state gov-

ernments in core areas of internal governance. The states retained control over their

internal police and, for decades to come, were the primary site of most regulation

and governance.

4

In spite of anything else the Constitution changed, the United

States remained the United States—separate corporate entities united in a federal,

rather than consolidated, system of continental governance.

5

Sometimes this was a

source of bitter complaint. But such frustrations otherwise confirmed the basic pat-

tern of early American loyalty and identity. The nation as a nation had few commit-

ted champions and even fewer sophisticated defenders.

6

There is truth in this portrait, but it leaves out much of the story. Not only was

the early national government considerably more active, muscular, effective, and

present than was once thought.

7

Not only was there an initial willingness on the

(Richard R. Beeman, Stephen Botein, and Edward C. Carter, II eds., 1987); JACK P. GREENE,

PERIPHERIES AND CENTER: CONSTITUTIONAL DEVELOPMENT IN THE EXTENDED POLITIES OF THE BRITISH

EMPIRE AND THE UNITED STATES, 1607–1788, at 172–80 (1986); GORDON S. WOOD, THE CREATION OF

THE AMERICAN REVOLUTION, 1776–1787 (1998); ALAN TAYLOR, AMERICAN REPUBLIC: A CONTINENTAL

HISTORY OF THE UNITED STATES, 1783–1850, at xxiii–xiv (2021).

2. See MERRILL JENSEN, THE ARTICLES OF CONFEDERATION: AN INTERPRETATION OF THE SOCIAL-

CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION, 1774–1781 (1970); DAVID C.

HENDRICKSON, PEACE PACT: THE LOST WORLD OF THE AMERICAN FOUNDING (2003).

3. See MAX M. EDLING, PERFECTING THE UNION: NATIONAL AND STATE AUTHORITY IN THE U.S.

CONSTITUTION (2021); HENDRICKSON, supra note 2; JENSEN, supra note 2; Michael P. Zuckert,

Federalism and the Founding: Toward a Reinterpretation of the Constitutional Convention, 48 REV.

POL. 166, 174 (1986); Anthony J. Bellia Jr. & Bradford R. Clark, The International Law Origins of

American Federalism, 120 COLUM. L. REV. 835, 857–71 (2020); PETER ONUF & NICHOLAS ONUF,

FEDERAL UNION, MODERN WORLD: THE LAW OF NATIONS IN AN AGE OF REVOLUTIONS, 1776–1814

(1993); Daniel H. Deudney, The Philadelphian System: Sovereignty, Arms Control, and Balance of

Power in the American States-Union, Circa 1787–1861, 49 INT’L ORG. 191, 194–216 (1995); Robbie J.

Totten, Security, Two Diplomacies, and the Formation of the U.S. Constitution: Review, Interpretation,

and New Directions for the Study of the Early American Period, 36 DIPLOMATIC HIST. 77, 77–80, 89–

110 (2012); FORREST MCDONALD, STATES’ RIGHTS AND THE UNION: IMPERIUM IN IMPERIO, 1776–1876

(2000); AARON N. COLEMAN, THE AMERICAN REVOLUTION, STATE SOVEREIGNTY, AND THE AMERICAN

CONSTITUTIONAL SETTLEMENT, 1765–1800 (2016).

4. See WILLIAM J. NOVAK , THE PEOPLE’S WELFARE: LAW AND REGULATION IN NINETEENTH-

CENTURY AMERICA (1996); GARY GERSTLE, LIBERTY AND COERCION: THE PARADOX OF AMERICAN

GOVERNMENT FROM THE FOUNDING TO THE PRESENT 55–68 (2015); EDLING, supra note 3, at 75–89.

5. See EDLING, supra note 3; HENDRICKSON, supra note 2; Zuckert, supra note 3.

6. See Jack P. Greene, Colonial History and National History: Reflections on a Continuing Problem,

64 WM. & MARY Q. 235 (2007); TAYLOR, supra note 1.

7. For a comprehensive overview of the new literature, see Gautham Rao, The New Historiography

of the Early Federal Government: Institutions, Contexts, and the Imperial State, 77 WM. & MARY Q. 97

(2020). For important works, see MAX M. EDLING, A HERCULES IN THE CRADLE: WAR, MONEY, AND

THE AMERICAN STATE, 1783–1867 (2014); GAUTHAM RAO, NATIONAL DUTIES: CUSTOMS HOUSES AND

68 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:67

part of a great many leading statesmen to see the national government’s powers

in expansive terms.

8

But additionally, nationalism itself—the idea that the United

States, properly understood, was a nation—found meaningful expression in these

early years, constituting an important, and often neglected, feature of the period’s

intellectual, political, and constitutional history.

9

Few Founding-era Americans were quite as committed to the idea of the

American nation as was Gouverneur Morris—the colorful New York politician,

lawyer, and businessman who represented Pennsylvania at the Constitutional

Convention. Indeed, Morris’s distinctive approach to the problems and possibil-

ities of American constitutionalism—and particularly the construction of a new

national constitution in 1787—are best understood as a commitment to a form of

nationalism: to the essential priority of the nation, not simply the union, and the

essential belief that most constitutional problems could be traced to this single

factor. To understand Morris’s thought is to grasp why constitutionalism and the

nation were so tightly entangled in his mind—to understand how his nationalist

constitutionalism was a form of constitutional nationalism.

THE MAKING OF THE AMERICAN STATE (2016); BRIAN BALOGH, A GOVERNMENT OUT OF SIGHT: THE

MYSTERY OF NATIONAL AUTHORITY IN NINETEENTH-CENTURY AMERICA (2009); William J. Novak, The

Myth of the “Weak” American State, 113 AM. HIST. REV. 752 (2008); RICHARD R. JOHN, SPREADING

THE NEWS: THE AMERICAN POSTAL SYSTEM FROM FRANKLIN TO MORSE (1995); Richard R. John,

Governmental Institutions as Agents of Change: Rethinking American Political Development in the

Early Republic, 1787–1835, 11 STUD. AM. POL. DEV. 347 (1997); GERSTLE, supra note 4, at 25–54;

JERRY L. MASHAW, CREATING THE ADMINISTRATIVE CONSTITUTION: THE LOST ONE HUNDRED YEARS

OF AMERICAN ADMINISTRATIVE LAW (2012); Andrew J. B. Fagal, The Political Economy of War in the

Early American Republic, 1774–1821 (Ph.D. diss., Binghamton University, State University of New

York, 2013); LINDSAY SCHAKENBACH REGELE, MANUFACTURING ADVANTAGE: WAR, THE STATE, AND

THE ORIGINS OF AMERICAN INDUSTRY, 1776–1848 (2019); PATRICK GRIFFIN, AMERICAN LEVIATHAN:

EMPIRE, NATION, AND REVOLUTIONARY FRONTIER (2007); LEONARD J. SADOSKY, REVOLUTIONARY

NEGOTIATIONS: INDIANS, EMPIRES, AND DIPLOMATS IN THE FOUNDING OF AMERICA (2009); BETHEL

SALER, THE SETTLERS’ EMPIRE: COLONIALISM AND STATE FORMATION IN AMERICA’S OLD NORTHWEST

(2015); PAUL FRYMER, BUILDING AN AMERICAN EMPIRE: THE ERA OF TERRITORIAL AND POLITICAL

EXPANSION (2017); GREGORY ABLAVSKY, FEDERAL GROUND: GOVERNING PROPERTY AND VIOLENCE IN

THE FIRST U.S. TERRITORIES (2021).

8. See David S. Schwartz, Jonathan Gienapp, John Mikhail, and Richard Primus, Foreword: The

Federalist Constitution, 89 FORDHAM L. REV. 1669 (2021); Jonathan Gienapp, In Search of Nationhood at

the Founding, 89 FORDHAM L. REV. 1783 (2021); Calvin H. Johnson, The Dubious Enumerated Power

Doctrine, 22 CONST. COMMENT. 25 (2005); John Mikhail, The Constitution and the Philosophy of Language:

Entailment, Implicature, and Implied Powers, 101 VA. L. REV. 1063 (2015); Richard Primus, “The Essential

Characteristic”: Enumerated Powers and the Bank of the United States, 117 MICH. L. REV. 415 (2018);

David S. Schwartz, Recovering the Lost General Welfare Clause, 63 WM. & MARY. L. REV. 857 (2022).

9. Some aspects of this history have received the attention they deserve. Important scholarship has

emphasized the importance early U.S. statesmen attached to international legal recognition of the United

States and the ways in which they drew on the law of nations to establish that fact. See D

AVID

ARMITAGE, THE DECLARATION OF INDEPENDENCE: A GLOBAL HISTORY (2007); David M. Golove &

Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of Nations, and the

Pursuit of International Recognition, 85 N.Y.U. L. REV. 932 (2010); ELIGA H. GOULD, AMONG THE

POWERS OF THE EARTH: THE AMERICAN REVOLUTION AND THE MAKING OF A NEW WORLD EMPIRE

(2012). For a suggestive and sweeping account of the importance of the nation between the Revolution

and Civil War, see SAMUEL H. BEER, TO MAKE A NATION: THE REDISCOVERY OF AMERICAN

FEDERALISM (1993).

2023] GOUVERNEUR MORRIS’S NATIONALIST CONSTITUTIONALISM 69