ABLAVSKY IN PRINTER (FLIP) (DO NOT DELETE) 1/27/2014 10:45 AM Duke Law Journal VOLUME 63 FEBRUARY 2014 NUMBER 5 THE SAVAGE CONSTITUTION GREGORY ABLAVSKY† ABSTRACT Conventional histories of the Constitution largely omit Natives. This Article challenges this absence and argues that Indian affairs played a key role in the Constitution’s creation, drafting, and ratification. It traces two constitutional narratives about Indians: a Madisonian and a Hamiltonian perspective. Both views arose from the failure of Indian policy under the Articles of Confederation, when explicit national authority could not constrain states, squatters, or Native nations. Nationalists agreed that this failure underscored the need for a stronger federal state, but disagreed about the explanation. Madisonians blamed interference with federal treaties, whereas the Hamiltonians argued the federal military was too weak to overawe the “savages.” Both accounts resulted in constitutional remedies. More important than the Indian Commerce Clause, new provisions secured by the Madisonians declared federal treaties supreme law, barred state treatymaking, and provided exclusive federal power over western territories. But expansionist states won concessions guaranteeing Copyright © 2014 Gregory Ablavsky. † Sharswood Fellow in Law and History, University of Pennsylvania Law School; Doctoral Candidate in History, University of Pennsylvania. I would like to thank Bethany Berger, Stephen Burbank, Faisal Chaudry, Stephanie Corrigan, William Ewald, Smita Ghosh, Sally Gordon, Eric Hinderaker, Doug Kiel, Sophia Lee, Gerard Magliocca, Peter Onuf, Gideon Parchomovsky, Daniel K. Richter, Robert Reinstein, Justin Simard, Matiangai Sirleaf, Catherine Struve, and Karen Tani for their feedback on the work in progress. Versions of this Article were presented at the annual meetings of the Society for the History of the Early Republic, the American Society for Legal History, and the American Historical Association, and to the University of Pennsylvania faculty ad hoc workshop. Thanks also to the staff of Biddle Law Library, particularly Alvin Dong, for research assistance. ABLAVSKY IN PRINTER (FLIP) (DO NOT DELETE) 1/27/2014 10:45 AM 1000 DUKE LAW JOURNAL [Vol. 63:999 federal protection and western land claims, while other provisions created a fiscal-military state committed to western expansion. The two narratives fared differently during ratification. While few embraced centralization, many Federalists repeatedly invoked “savages” to justify a stronger federal state and a standing army. This argument swayed Georgia, which ratified to secure federal aid in its ongoing war with the Creek Indians. But it also elevated the dispossession of Natives into a constitutional principle. The Article concludes by exploring this history’s interpretive implications. It suggests the Indian affairs context unsettles conventional understandings of the Constitution as intended to restrain the power of the state, and challenges both originalist and progressive assumptions about constitutional history. TABLE OF CONTENTS Introduction ........................................................................................... 1001 I. The Articles’ Failures ....................................................................... 1009 A. Drafting the Articles ........................................................... 1009 B. The Creation of Congressional Indian Policy .................. 1013 C. The Failure of Congressional Indian Policy ..................... 1018 1. The North ......................................................................... 1019 2. The South ......................................................................... 1027 D. Lessons of Failure ............................................................... 1033 1. The Madisonian Reading ................................................ 1035 2. The Hamiltonian Reading............................................... 1037 II. The Constitutional Convention ..................................................... 1038 A. The Madisonian Convention ............................................. 1039 B. The Hamiltonian Convention ............................................ 1046 III. The Ratification Debates .............................................................. 1050 A. Madisonian Ratification ..................................................... 1052 B. Hamiltonian Ratification .................................................... 1058 C. The Lesser of Two Evils: Ratification in Georgia ........... 1067 D. Ratification as Compact and Its Legacy ........................... 1071 IV. Legacies and Implications ............................................................. 1076 Conclusion .............................................................................................. 1088 ABLAVSKY IN PRINTER (FLIP) (DO NOT DELETE) 1/27/2014 10:45 AM 2014] THE SAVAGE CONSTITUTION 1001 INTRODUCTION Only two speeches at the Constitutional Convention discussed Indians.1 On June 19, 1787, James Madison argued for expanded federal authority, emphasizing that Georgia had “directly” violated the Articles of Confederation when it “made war with the Indians, and concluded treaties.”2 A day earlier, Alexander Hamilton, in a lengthy speech arguing for a much-strengthened federal government, listed three “important objects, which must necessarily engage the attention of a national government.”3 “You have to protect your rights against Canada on the north, Spain on the south, and your western frontier against the savages,” he warned.4 The text the Convention produced also mentioned Indians twice: once to exclude “Indians not taxed” from the apportionment of 1. A note on terminology: I use the words “Indian” and “Native” interchangeably to describe the indigenous peoples of North America. I also use the terms “tribe” and “nation” to describe Native polities of the late eighteenth century. Native political organization was diverse and complex, and Anglo-American abstractions often fit poorly onto “a world of villages, bands, and clans.” COLIN G. CALLOWAY, THE AMERICAN REVOLUTION IN INDIAN COUNTRY: CRISIS AND DIVERSITY IN NATIVE AMERICAN COMMUNITIES 8–9 (1995); see RICHARD WHITE, THE MIDDLE GROUND: INDIANS, EMPIRES, AND REPUBLICS IN THE GREAT LAKES REGION, 1650– 1815, at 1–49 (1991). But I nonetheless use these terms both because they correspond with how Anglo-Americans viewed Natives at the time and because long-standing Native interaction with Europeans had helped construct Native nations that were more than simply European inventions. CALLOWAY, supra, at 8–9. See generally STEVEN C. HAHN, THE INVENTION OF THE CREEK NATION, 1670–1763 (2004) (describing the historical construction of concepts of Creek nationhood). When possible and clear, I use the term “Anglo-American” to refer to the non- Native inhabitants of the United States, even though many were not English; as Daniel Richter has observed, the fact that “in the new nation Whites were the ones entitled to be called ‘Americans’” rejected earlier practice and implicitly erased the continent’s Native past. DANIEL K. RICHTER, FACING EAST FROM INDIAN COUNTRY: A NATIVE HISTORY OF EARLY AMERICA 2–3, 252 (2003). Finally, I use the terms “national government” and “federal government” interchangeably to describe the government created by the Articles and, later, the Constitution. This is consistent with historical usage, although these terms were not uncontested, and early Americans most frequently used the now archaic-sounding “general government.” For instances of these usages, see infra notes 3, 324, 336, 422, 426, 447, 470 and accompanying text. 2. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 326 (Max Farrand ed., 1911). 3. 4 THE PAPERS OF ALEXANDER HAMILTON 198 (Harold Coffin Syrett ed., 1961). Hamilton’s speech, which proposed an elective monarch who would serve for life, had little subsequent impact on the Convention; the delegates described it “praised by every body” but “supported by none.” 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 363; see also RON CHERNOW, ALEXANDER HAMILTON 230–35 (2004) (describing Hamilton’s speech as one of the “flagrant errors” of Hamilton’s career). 4. 4 PAPERS OF ALEXANDER HAMILTON, supra note 3, at 198. ABLAVSKY IN PRINTER (FLIP) (DO NOT DELETE) 1/27/2014 10:45 AM 1002 DUKE LAW JOURNAL [Vol. 63:999 representation in the House of Representatives,5 and once to grant Congress the power to “regulate Commerce . with the Indian Tribes.”6 Neither provision occasioned any recorded debate.7 Histories of the Constitution, even very recent ones, assume this absence reflects Indians’ irrelevance, and so almost entirely omit Natives.8 This Article reexamines this history and contends that debates over Indians played an important role in the Constitution’s creation, drafting, and ratification, particularly in the push for a stronger federal state. It situates Madison and Hamilton’s speeches at the Convention as exemplars of two contrasting strains of constitutional thinking about relations between Indians, the national government, and the states—one that stressed paternalism, the other that embraced militarism. And it argues that the conquest and dispossession of Native peoples were integral to the Constitution’s ratification, shaping subsequent events. Current scholarship offers two accounts of Indians and the Constitution. Some have advanced the unpersuasive claim that the Six Nations of the Iroquois Confederacy served as a primary model for American federalism.9