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Articles a Civilized Nation: the Early American Constitution, the Law of Nations, and the Pursuit of International Recognition

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Articles a Civilized Nation: the Early American Constitution, the Law of Nations, and the Pursuit of International Recognition \\server05\productn\N\NYU\85-4\NYU402.txt unknown Seq: 1 6-OCT-10 14:00 ARTICLES A CIVILIZED NATION: THE EARLY AMERICAN CONSTITUTION, THE LAW OF NATIONS, AND THE PURSUIT OF INTERNATIONAL RECOGNITION DAVID M. GOLOVE & DANIEL J. HULSEBOSCH* This Article argues, contrary to conventional accounts, that the animating purpose of the American Constitution was to facilitate the admission of the new nation into the European-centered community of “civilized states.” Achieving international recognition—which entailed legal and practical acceptance on an equal footing— was a major aspiration of the founding generation from 1776 through at least the Washington administration in the 1790s, and constitution-making was a key means of realizing that goal. Their experience under the Articles of Confederation led many Americans to conclude that adherence to treaties and the law of nations was a prerequisite to full recognition but that popular sovereignty, at least as it had been exercised at the state level, threatened to derail the nation’s prospects. When designing the Federal Constitution, the framers therefore innovated upon republi- canism in a way that balanced their dual commitments to popular sovereignty and earning international respect. The result was a novel and systematic set of constitu- tional devices designed to ensure that the nation would comply with treaties and the law of nations. These devices, which generally sought to insulate officials respon- sible for ensuring compliance with the law of nations from popular politics, also signaled to foreign governments the seriousness of the nation’s commitment. At the same time, however, the framers recognized that the participation of the most pop- ular branch in some contexts—most importantly, with respect to the question of war or peace—would be the most effective mechanism for both safeguarding the interests of the people and achieving the Enlightenment aims of the law of nations. * Copyright 2010 by David M. Golove & Daniel J. Hulsebosch, Hiller Family Foun- dation Professor of Law & Charles Seligson Professor of Law, N.Y.U. School of Law. Versions of this Article were presented at the Commemorative Conference on Alberico Gentili, N.Y.U. School of Law, March 15, 2008; the International Law Weekend Confer- ence, Association of the Bar of the City of New York, October 18, 2008; the N.Y.U. Legal History Colloquium, January 21, 2009; the Symposium on Comparative Early Modern Legal History, Newberry Library, April 3, 2009; the Foreign Relations Law Colloquium, Georgetown University Law Center, October 13, 2009; the Faculty Workshop at N.Y.U. School of Law, March 29, 2010; and the W.G. Hart Legal Workshop, Institute of Advanced Legal Studies, University of London, June 30, 2010. The authors would like to thank the conference and colloquium participants for comments, particularly Norma Basch, Felice Batlan, Tom Bender, Lauren Benton, R.B. Bernstein, Kevin Davis, Deborah Dinner, Dan Ernst, Barry Friedman, Helen Hershkoff, Rick Hills, Peter Hoffer, Stephen Holmes, Vicki Jackson, Mattias Kumm, Alison LaCroix, Daryl Levinson, T.A. Milford, Bill Nelson, Anne Orford, Rick Pildes, Cristina Rodr´ıguez, Eric Slauter, Carlos Vazquez, ´ Jim Whitman, and Kenji Yoshino. The authors are also grateful for the support of the Filomen D’Agostino and Max E. Greenberg Research Fund at N.Y.U. School of Law. 932 \\server05\productn\N\NYU\85-4\NYU402.txt unknown Seq: 2 6-OCT-10 14:00 October 2010] A CIVILIZED NATION 933 After ratification, the founding generation continued to construct the Constitution with an eye toward earning and retaining international recognition, while avoiding the ever-present prospect of war. This anxious and cosmopolitan context is absent from modern understandings of American constitution-making. We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride, or degrade the character of an independent nation, which we do not experience. Are there engagements to the performance of which we are held by every tie respectable among men? These are the subjects of constant and unblushing violation. Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril, for the preservation of our political exis- tence? These remain without any proper or satisfactory provision for their discharge. Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our Government even forbids them to treat with us: Our ambassadors abroad are the mere pageants of mimic sovereignty. —Alexander Hamilton, Federalist 15 (1787)1 INTRODUCTION: THE COSMOPOLITAN FOUNDING AND THE QUEST FOR RECOGNITION .............................. 934 R I. THE ROAD TO PHILADELPHIA: SEEKING LEGITIMACY IN THE ATLANTIC WORLD ................................. 946 R A. State Constitution-Making and Continental Cooperation ........................................ 949 R B. A Diplomatic Education: The International Vices of the Political Systems of the States ................... 952 R C. Treaties at Home: Judicial Enforcement of the Peace Treaty Against State Legislation ..................... 961 R D. The Federalist Vision of American Participation in the Atlantic World .................................. 970 R II. THE INTERNATIONAL CONSTITUTION ................... 980 R A. Constitutional Theory: Reconciling International Legitimacy with Popular Sovereignty ................ 982 R B. Theory Applied: The Framers’ Design .............. 989 R III. “LIQUIDATING” THE CONSTITUTION: FOREIGN AFFAIRS IN THE FOUNDING GENERATION ........................ 1015 R A. The Neutrality Crisis of 1793 ........................ 1019 R B. The Jay Treaty Controversy ......................... 1039 R IV. CONSTITUTIONS AND THE INTERNATIONAL RECOGNITION OF POSTCOLONIAL NATIONS ............. 1061 R 1 THE FEDERALIST NO. 15, at 91–92 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). \\server05\productn\N\NYU\85-4\NYU402.txt unknown Seq: 3 6-OCT-10 14:00 934 NEW YORK UNIVERSITY LAW REVIEW [Vol. 85:932 CONCLUSION ................................................... 1065 R INTRODUCTION: THE COSMOPOLITAN FOUNDING AND THE QUEST FOR RECOGNITION This Article seeks to reframe the history of the American Founding. Contrary to the premise of constitutional exceptionalism that is an article of faith in the nation’s imagined story,2 we argue that the United States’ founding instrument is best understood, in histor- ical perspective, as a fundamentally international document. According to the conventional account, the purpose of the Constitution was to establish a republican frame of government that would safeguard the American people from domestic tyranny, pro- mote respect for individual rights, and avoid encroachments on the autonomy of the states. In short, the framers created the Constitution for internal purposes, and its intended audience was the American people. This understanding is profoundly incomplete. In contrast, this Article highlights the connection between the making of the Constitution—its causes, drafting, and implementation over time— and the integration of the United States into the Atlantic world of “civilized” states. Historians have long recognized that the weakness of the Articles of Confederation created complications for the new nation’s foreign relations and that the founders organized the Philadelphia Convention at least in part to remedy the difficulties that the new nation had encountered during the “critical period” immediately fol- lowing the Revolution.3 Diplomatic frustrations resulting from state 2 See BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD OF NATIONALISM (rev. ed. 2006) (arguing that national histories help consti- tute nation and nationalism); see also THOMAS BENDER, A NATION AMONG NATIONS: AMERICA’S PLACE IN WORLD HISTORY 4 (2006) (“To go beyond the nation is not necessa- rily to abandon it but to historicize and clarify its meaning.”); Daniel T. Rodgers, Excep- tionalism, in IMAGINED HISTORIES: AMERICAN HISTORIANS INTERPRET THE PAST 21 (Anthony Molho & Gordon S. Wood eds., 1998) (analyzing concept of national exceptionalism). 3 See, e.g., FREDERICK W. MARKS III, INDEPENDENCE ON TRIAL: FOREIGN AFFAIRS AND THE MAKING OF THE CONSTITUTION 3 (1973) (discussing how “individual states undercut congressional prerogative in foreign relations and jeopardized the security of the entire nation”); RICHARD B. MORRIS, THE FORGING OF THE UNION, 1781–1789 (1987) (to similar effect); JACK N. RAKOVE, THE BEGINNINGS OF NATIONAL POLITICS: AN INTERPRE- TIVE HISTORY OF THE CONTINENTAL CONGRESS 342–52 (1979) (to similar effect); PETER ONUF & NICHOLAS ONUF, FEDERAL UNION, MODERN WORLD: THE LAW O F NATIONS IN AN AGE OF REVOLUTIONS, 1776–1814, at 93–122 (1993) (“The move toward federal union followed from the failure of confederal arrangements to guarantee harmony among the states and Congress’s resulting inability to conduct foreign policy.”); GEORGE C. HERRING, FROM COLONY TO SUPERPOWER: U.S. FOREIGN RELATIONS SINCE 1776, at 51 (2008) (to similar effect). \\server05\productn\N\NYU\85-4\NYU402.txt unknown Seq: 4 6-OCT-10 14:00 October 2010] A CIVILIZED NATION 935 violations of the Treaty of Peace, in particular, helped create the atmosphere of crisis that motivated profederal forces to organize and write a constitution. On this account, international problems func- tioned as a catalyst for calling the Convention, but in the actual con- ception, drafting, ratification,
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