The revolutionary portfolio: constitution-making and the wider world in the American Revolution.

• Author: Hulsebosch, Daniel J.
• Position: Introduction through I. John Adams and the Revolutionary Portfolio: Conception and Sequence, p. 759-790

INTRODUCTION I. JOHN ADAMS AND THE REVOLUTIONARY PORTFOLIO: CONCEPTION AND SEQUENCE II. THE STATES TOGETHER, AND IN THE WORLD III. PUBLICIZING THE PORTFOLIO: BENJAMIN FRANKLIN'S CONSTITUTIONAL ADVOCACY CONCLUSION "This is not Independency you know.--What is? Why Government in every Colony, a Confederation among them all, and Treaties with foreign Nations, to acknowledge Us a Sovereign State, and all that." (1)

INTRODUCTION

Americans and their historians have long viewed constitution-making in the Founding Era as a local event with global repercussions. It is a story of American ideals and interests in which American drafters, voters, and ratifiers made key decisions. (2) Americans then began to work out the meaning of their constitutions in state and federal institutions, which required that some officeholders be citizens. (3) Only after the ratification of the federal Constitution did foreign nations take heed, through imitation and (later) force. (4) This myth of the originally authentic, and later diffusionist constitution, is not limited to the United States. (5) It has been the dominant conception of constitution-making in many times and places.

In fact, American constitution-making began as an international process. All the American constitutions of the Founding Era, state and federal, were made with foreign, as well as domestic, audiences in mind. International factors, from wartime imperatives to calculations of long-term commercial advantages, contributed to American constitution-making from the beginning. Indeed, the founding documents of the early United States--the state constitutions, the Articles of Confederation, the Declaration of Independence, and the Model Commercial Treaty--were designed at least in part as diplomatic instruments that, together, formed a revolutionary portfolio. Furthermore, the foundational documents articulated an Enlightenment-inflected vision of an international order of "civilized nations," among which commerce would balance power.

"Diplomacy" as used here has both a traditional and a more elastic meaning. The revolutionary portfolio, at once informational and petitionary, was intended to elicit formal relations and perhaps assistance; these were revolutionary means toward traditional diplomatic ends. More expansively, the portfolio embodied a transatlantic faith that people could take control of their political destiny and, drawing on political wisdom and experience, redesign their governments upon the new foundation of popular sovereignty. In this dimension, the portfolio embodied and contributed to what can be called the "Constitutional Enlightenment." As a self-conscious, public, and highly publicized effort in political reconstruction, the American constitutional experiments seemed to prove what European political thinkers had long believed or hoped: people could (in the words of Alexander Hamilton ten years later) "establish[] good government from reflection and choice," rather than being "forever destined to depend for their political constitutions on accident and force." (6)

The Constitutional Enlightenment was not marked by a single set of ideas or mind; nor was it static. What makes it identifiable are the same characteristics that marked much Enlightenment activity: the perceived sense that people could treat human institutions scientifically and subject them to experimentation and redesign. (7) The revolutionaries undertook a local project that had, they argued, ramifications for the rest of the Atlantic World. The portfolio was then received in Europe as evidence of effective revolutionary government and as a practical test of leading Enlightenment ideas. Amidst the overlapping and competing empires of the Atlantic World in the late eighteenth century, and during the international conflict that was the American Revolution, it could not have been any other way.

The effort began at the outset of the American Revolution and lasted at least through the 1790s. In a recent article that we are developing into a book, David Golove and I argued the federal Constitution of 1787 was conceptualized, drafted, and put into operation for not only domestic, but also foreign audiences. (8) Many Founders saw the federal Constitution as, in part, a promise to foreign nations that the United States would fulfill its international obligations as a member of what they saw as the "civilized world." The new constitutional structures not only centralized power over foreign affairs away from the states, but also distributed those powers across the federal government and insulated some aspects of foreign relations from the relatively democratic House of Representatives. For example, the President received the power to carry out diplomacy in peace and war, and the President and Senate shared the treaty power. Further, it was important to foreign audiences that the newly created federal courts had jurisdiction over a host of cases involving international interests, such as when the parties were foreign governments or aliens, or when the substantive issues turned on treaty rights and the law of nations. (9) Additionally, key terms in the document that had little meaning for lay persons--such as "commander in chief'; "ambassadors, public ministers, and consuls"; and "admiralty and maritime jurisdiction"--were derived from the early modern law of nations. The use of this terminology drew on international practices and a European literature of interpretation that the framers assumed would provide rules of decision in concrete cases and, more generally, supply an interpretive context for the Constitution.

This argument is premised on an account of the founding generation's intellectual commitments that bestowed value on recognition and integration into the Atlantic World of nations. Nations, like people, were presumed to be sociable; like individuals, nations had the duty, as well as right, to work in concert with others. (10) Commerce was the primary means of sociability, and the ideal of this Enlightenment-infected conception of international relations was commercial integration. (11)

The purpose of state-building in early America, therefore, was not to create a powerful fiscal-military state that could take by force whatever it could not obtain through negotiation backed by threats. Rather, it could be called a "fiscal-commercial state," one that depended on cooperative as well as competitive structures in the law of nations. A war may have made the American states, but Americans did not make their states only, or even primarily, to make war. (12) Instead, American state-building depended on the formation of international commercial and financial markets, which the law of nations was supposed to encourage. (13) Although the precise nature of the connections among nations, and even the definition of which polities counted as nations, was contested--indeed, revolutionary Americans contributed much to the reformulation of what it meant to be a nation--few doubted that there was an international community that was, or should be, governed by common legal principles. (14) Leading members of the founding generation did not, therefore, view international obligations as trespasses upon sovereignty. Instead, duties under the law of nations correlated with rights. Together, these legal complements would prove independence.

Although the Philadelphia Convention marked a turning point in American ideas about how to structure government in order to facilitate a more liberal and effective policy toward foreign nations, the founding generation did not take international audiences into account only when drafting the federal Constitution. Instead, those audiences were present from the beginning. When placed in the context of the preceding decade, constitutional reform in the 1780s fits into an ongoing story of institutional trial-and-error that began with the earliest examples of American constitution-making, beginning in 1776.

At the outset of the American Revolution, the Continental Congress and the provincial assemblies collaborated to construct a portfolio of foundational documents that American diplomats carried across the Atlantic to seek European support. In the spring and summer of 1776, Congress drafted three of the documents: the Declaration of Independence, the Articles of

Confederation, and the Plan of Treaties, also known as the Model Commercial Treaty, or simply, the Model Treaty. (15) At exactly the same time, Congress recommended that the states draft a fourth type of document: state constitutions. Some revolutionaries even floated the idea that Congress should draft a model state constitution. (16)

"Portfolio" is not simply a heuristic. Leading revolutionaries like John Adams thought that the four documents fit together as legal complements and each was necessary for independence. The revolutionary portfolio contained the legal forms to achieve independence while also announcing it. The early state constitutions, along with the more explicitly international Declaration, Articles, and Model Treaty, conveyed the revolutionary argument that the colonies had become international states entitled to all the rights of statehood, including the right to make war and treaties. Each document was constitutional in a meaningful sense. The state constitutions and Articles of Confederation outlined government within and among the states; the Declaration of Independence announced their collective claim to international recognition; and the Model Treaty specified the terms on which the states sought to reintegrate into the Atlantic World.

The portfolio also signaled functional capacity. The states claimed the legitimate power to tax and spend, including spending on war, and to police political membership. The Articles of Confederation were designed to coordinate defense and foreign policy, and the Model Treaty communicated an Enlightenment vision of peaceful international relations built...