Tag Archives: U.S. Constitution

Dominion and liberty, NEH 2014, day 2

Andrew Cayton was our guest for much of day two and while he was largely speaking about concepts introduced in he and co-author Fred Anderson’s book The Dominion of War, Cayton was also present to lend his expertise on early America. I first met Dr. Cayton fourteen years ago when he was the commentator for a panel on which I was speaking about early frontier communities. I remembered being impressed by his thoughts at the time and over the years followed up on his work and how is examination of frontier Ohio and Indiana could be applied to my own research on Nebraska. Somehow, I missed Dominion of War, but more on that point later.

In preparing for the day, I took a look at a recommended Peter Silver book Our Savage Neighbors: How Indian War Transformed Early America. Silver’s book is about horor and fear and how it can change entire societies as well as the politics of these places. He focuses on British North America between the 1750s and 1780s and introduces an interesting theory as to how the concept of “white people” may have helped ease some cross Euronational tensions, creating a more unified colonial opposition to native land ownership and rights. Silver’s opening section focuses on conflicts between leaders of Pennsylvania and squatters (settlers living on the frontier, often on land they did not own or that was to be preserved for natives, or both). These conflicts were often set aside as native warfare became a common threat after the 1750s.  Silver includes a fascinating story about Moravians working with Inuits and how the latter traveled to Pennsylvania briefly and then felt grief when war struck in 1755; he also features the tale of Tom Quick, discussing how fear creates prudence and a spirit of enterprise (sick though it may be in terms of turning in scalp bounties) when living among natives.  Silver concludes with the postwar that wasn’t: “a generation that was constantly haunted by war, and shaped by the moments of fear it provided, had remade Americans’ beliefs in toleration, in the desirability of overcoming inter group prejudice, and in the democratic sovereignty of the people.” (301)

Pr. Cayton’s plan was to examine the Origins of the Empire of Liberty, 1763-1783, taking a closer look at the American revolution and expansion. By tracing how British victory in the French and Indian war, a conflict provoked by expansionism, resulted in arguments over land and power in North America, Cayton discussed the continuity of expansion that led to revolution and to the establishment of an empire defined by republican polities, racial exclusion, and commercial agriculture.

Empire in the 18th century meant a big, extended, and powerful nation.  Pr. Cayton argued that generally, people want to feel secure and that is what they seek from the relationship with empire.  As an individual, you are willing to provide tribute to the center so that you might be then left alone.  In the case of 18th century North America, perhaps you supply a certain amount of manpower for the militia or feeding the populace, etc.  When Great Britain appeared to no longer supply what is needed (security) and loses its legitimacy, North America was in the latter half of the 18th century; revolution resulted in a change of polity, but the basic problem of expanding territory and providing security was exactly the same as were felt in the 1750s.

So how did Americans begin to take or manage the Ohio Valley region and get what they wanted in terms of wealth development?  The land itself played a role, including the mountains and drainage basins.  The people on that land played a big role as well, both native people and other Europeans, who may or may not have challenged the new governments’ attempts to take control.  In a way the English had been successful because of numbers, but also the nature of fur trade and alliances with Iroquois made a big influence as well with native people like the Iroquois providing a key source of stability and market through the 18th century.  By the time of the American Revolution, the North American colonies had become the general store for the Caribbean and this relationship in turn attracted a huge number of people to the regions like the Carolinas and mid Atlantic region.

After French control was wrested by the British, there were continued problems.  The British interrupted the flow of trade goods in and out of the Great Lakes region and this changed the nature of empire and the rules which caused native leader Pontiac to “rebel.”  The British General Amherst tried to change the native-empire relationship through cutting off trade of arms and altering the fur trade.  Increasingly, empires became about “likeness” with violence and war acting key to these transformations – six decades of war, 1740s through 1810s over who is going to control this region west of Appalachians.  Because no one, the French, the British, the Native population, the Spanish, nor the Americans, could provide security, there was no peace in the region – here, Cayton, made reference to a Second World War era book, Bloodlands by Timothy Snyder, particularly because Snyder is describing what happens when there is no security and literally almost everyone’s life is at risk. I am currently reading Bloodlands and it is truly chilling – I can see the link Cayton was making very clearly.

As we might guess, and Pr. Cayton confirms, the American war for independence is catastrophic for native people.  Native people are the losers along with some loyalists.  During the American Revolution itself, Washington seized the opportunity to order attacks into Iroquois territory and other native peoples’ lands.  The Sullivan campaign assails Iroquois power and creates a kind of pattern in behavior followed by the American government in the years following.

Andrew Cayton and Peter Onuf discussed the concept of a “blueprint for expansion:” the constitutional origins of the empire of liberty examined how empire grew out of colonial experience and in response to native resistance.  By 1787, American leaders had constructed a new form of empire, drafting the Constitution and the passage of the NW ordinance (the document which outlines how all newly settled territories might become equal members of the American federation).  For Pr. Onuf, statehood and union are about both liberty development and union.  In Cayton’s vision of the frontier republic conflicts are replete between congress and squatters, Federalist authority and the burgeoning state of Ohio, national government authority versus local interests, etc.  It was extremely contentious in the following periods: 1807-1812, 1812-1819, and 1819-1824.  The dominant points of view were:

  1. Squatters and Jeffersonian republicans emphasizing local sovereignty
  2. Federalist seeking to bring regularity to a disordered society

But did federalists detest the American west?  Did they truly see it as an “open, dynamic, democratic, egalitarian frontier?  When one constructs analysis of the conflicts between these two above points of view, Pr. Cayton argues that both were inappropriate for the type of society growing in Ohio – “Neither absolute power nor absolute liberty could effectively govern Ohio.”
Yet, we wonder – isn’t Ohio out west? Why were Americans being kept from it?  Were these natives of the Ohio valley the civilizing project with which the new American government wanted to engage?  At this point, our discussion included references to Edmund Burke and his notion of morality becoming universal and superior.  We included a reference to the stadial theory of Scottish enlightenment discussing conjectural history as well – this theory begins classically with examining hunting and gathering societies, shifts to agricultural and perhaps eventually a commercial people, etc.  In other words this theory is about the teleological nature of history as one that is progressive and constantly moving forward.

This philosophical point pushed us towards some interesting questions – as we know from examining plays and government documents alike written texts when read out loud are sometimes interpreted differently – even when Americans believe they can draw on a “firm” constitutional heritage in order to create a government made on fundamental principles, the meanings can be somewhat confused.  In the aftermath of the revolution, Americans faced the same problems that the British had stared down.  Why was North America different from England though?  Did its residents share in that Burkean notion of universal morality?  If yes, or no, what is making a civilization then?  Is it allegiance to the Constitution or is it print culture, or is it something else entirely?

Our final element for day two was a close discussion with Pr. Peter Onuf regarding his book Jefferson’s Empire: the Language of American Nationhood.  The discussion of this groundbreaking series of essays, opened with a dialogue focused on how historians related to the theme of the institute as well as on experience and challenge of producing innovative and important scholarship.  As it was a free flowing conversation, subject to interpretation by all types in a variety of ways, I’ll close by referencing a few of the questions and observations that we raised in reference to Jefferson’s understanding of empire.

  • Jefferson and Native people – An important question is that Jefferson did not take the Marietta, OH mounds seriously, insisting that there must be another explanation for their presence.  If so, how could Jefferson conceive of Native people being part of the empire?
  • Additional questions on what Jefferson takes “seriously” or not – eg, sending Africans to Haiti  in order to keep them out of the US? Is this for real? How would you pay for it? When would they do this move? Why would others agree?
  • Why was Jefferson concerned about the possibilities of violence among freed slaves? Why does he use this notion of slaves as captives in war?
  • Are natural rights meaningless unless in a civic context?
  • One of Jefferson’s great projects was the reforming of the laws in Virginia and yet these were arguably failures despite the interest in examining them.  Could Jefferson believe that he was successfully creating union through language?  Must the polity be same? – perhaps there was a need for or at least the illusion of equality?
  • Two exclusions we discussed – one, defining the community of the people (enslaved people not included and neither are the “savages” ); two, the “ward” republic concept (perhaps evolving out of a concern that local govt doesn’t exist in VA?) leads Jefferson to talk about the individual domestic household as another exclusion
  • Jefferson emphasized that love can help create the strength of nation; Is there a paradoxical problem about federalism and regional differences that love cannot solve?
  • Federalists might call what the United States was becoming simply an empire rather than add the liberty notion at the end; could it be an empire of reason?
  • What do lines in geography and polity do? Do they cooperate with one another to a degree? The Missouri line is a different one from those drawn during the NW ordinance and the crisis reveals the “restrictionist” views as Jefferson sees them
  • One thing predicated within NW ordinance is property rights – this creates a problem because one could potentially be both human and property at the same time  Is law constituted in legislatures as well as bars and on the corners, etc?

Apologies on the long delay of these summative comments.  More to come as the summer wanes.

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NEH recap part one, The Constitution and Expansion of the United States

This spring, I applied for a National Endowment for the Humanities Summer Institute for College and University Teachers program that promised to present a comprehensive examination of westward expansion and the Constitution in the early American republic. The expressed purpose was to focus on the role of government and constitutional limits in the United States in a time period when it was aggressively extended its borders. I was excited to work with the staff including co-directors Paul Gilje and Kevin Butterfield, along with scholars in residence like Fay Yarbrough, Andrew Cayton, and Amy Greenberg among others.

During the first week we looked at the colonial period, taking the story through the American Revolution and the establishment of the Constitution with help from our directors as well as Peter Onuf and legal scholar Lindsay Robertson. and then explore how Americans interpreted that Constitution in the first half of the nineteenth century as the nation reached across a continent.

Among other issues discussed as they relate to American expansion, the institute presented readings and lessons on the treatment of Native Americans and the institution of chattel slavery. We ended with a discussion of the Mexican-American War. Another purpose of the institute was to explain the origins of the ideas of Manifest Destiny and “[portray] American expansion as a halting, debated, and contingent set of experiences that included crucial questions central to citizenship, race, ethnicity, and, of course, the Constitution.”

Opening remarks
Kevin Butterfield teaches in a relatively new constitutional program at University of Oklahoma housed in a department of classics and letters. This department is staffed currently by historians and Butterfield co-directs with a scholar of the Roman republic, Kyle Harper.

It was presented to us that the physical space of Oklahoma is relevant for discussing the issue of westward expansion – clearly from a geographic perspective there is a utility in our location, but also the historical reality of Indian removal has an impact on this state. The organizers purposefully stopped the discussion in 1848 as there are enough constitutional questions up through this period to consider.

Antecedents
After introductions from the group, we began with a presentation from historian Peter Onuf on colonial antecedents as they relate to empire and expansion. Onuf introduced the point that American expansion antedates the American Revolution and also grew out of the process of English colonization.

Early in the discussion, Onuf asked us “how seriously do we as Americans take the Declaration of Independence as both a document AND a historical moment?”  By beginning the conversation with the framing and founding of independence as well as the creation of the Constitution, Onuf encouraged participants to think about the document in a collective manner.

Arguably, the Constitution enables the continuation of a process of colonization.  It helps the United States to protect the expansion of racialized slavery – SC and GA won’t join the union without these guarantees for the peculiar institution.  With this idea, Onuf asked us whether we examine the constitution as part of discontinuity rather than continuity?  Was it, therefore, the civil war that tremendously altered the fundamental principles of government rather than the American Revolution?  Such a question is at odds with other historians’ interpretations as to the importance of the American Revolution, but both Professors Onuf and Cayton helped participants see the value of at least considering the idea of continuity as a driving force in shaping American history.

Important Questions
As befits the opening day of an institute considering some particularly challenging readings and new paradigms of historical interpretation, the organizers and guest lecturers often peppered the talks with a variety of rhetorical questions along with queries meant to inspire discussion or, in some cases, get a rise out of us.  Some inspired samples of these lines of inquiry follow and on occasion, participants and lecturers were able to return to these themes.

  • Are the American people a self-invented people? We are subjects but after July 1776 have we truly broken the chains?
  • Does the environment lead us to barbarism or instead does it lead to freedom?
  • What can drive the Americans is a desire to have rights?
  • Sovereignty questions were and remain key – how do we resolve them? Were ideas driving the revolution or was it a tax revolt or both? Was it ideas of freedom and liberty that make a bigger difference? Or was there a concern based on money?
  • Idea of sovereignty is a radical abstraction-  why?
  • Is America a failed British state?
  • Was there trauma in breaking away from Britain?  If so, were colonial elites aware of the painful decision they had reached?
  • Can you discern nature’s laws as they relate to humanity and rule?
  • How does one sustain continuity when creating a new government?

Onuf made the case that we can now clearly see, through changing our view of the past regimes, some answers to these questions.  For example, though the Europeans would argue that Creoles (those of European descent, born in the Americas) are degenerating because they have left behind the world of refinement, American colonists want continuity of a sort with the life available in Europe.  In some instances, American elites who were worrying about these questions were at a distance from the civic and social connections available in portions of Europe, but were still highly cognizant of these connections.  Such provincial elites believed their rights and privileges as citizens of Europe were in danger.  Arguably, the revolutionary elite in what becomes the United States sought to continue these sets of rights and privileges above all else.

For years, Europeans had known that their future lay to the west – their justification for expansionest actions were often tied to the spread of liberty, civility, and more.  As a result of this connection, American patriots, it can be argued, are imperialists though, a very specific kind.  In many instances, Americans defend rights and concerns on a regional level (parochial), particularly focusing on the issues of governing themselves.  In addition to concerns over debt, American colonists aimed  concern at issues of property (slave, land owners, etc).1

Those concerns about property protection were, arguably, continuations from the period when we were under British rule.  American colonial elites made reference to the 1772 Somerset decision and the question as to whether an enslaved person could be sold into slavery from Britain to West Indies.  These same elites recognized this pre-revolutionary decision as a slippery slope and arguably wrote the Constitution in such a way as to expand protections of and concepts of ownership, though again, in the context of continuity.  Because corporate integrity of the colonies was important, it can be extrapolated that both sustaining and expanding the British empire was a key belief of the elite in Europe and among the colonies.

During/after the Revolution

When the colonial elites make the decision to engage with revolution, there is, a level of trauma that emerges.  Americans perhaps love our monarchs and then kill the king rhetorically but it was a painful process.  Americans invoked nature’s god to an extraordinary length as it related to rule, property, rights, etc.  When the colonial elites form their “Continental Congress” it is a term designed to signify the difference between the British of the isle versus the British of North America.  Onuf and others asked us to consider whether the word continent were a signifier of something greater? Did these colonial elites see the future of expansion and perhaps the potential of empire?  An interesting idea was presented regarding whether Americans desire empire (along the British model – one that preserves property and rights and provides security) yet are willing to risk anarchy.  Personally, I found this notion to be a particularly interesting idea.  Lying at the heart of the notion is the fundamental problem of how to maintain that union of empire, security, expansion, and preservation of rights.  Was it possible that the Constitution itself could sustain stability across the violence of the revolution?

It was argued that nature can be anything you accept as a given and that these givens change all the time, so perhaps it was possible to make war and a nation if you have continuity – Massachusetts for example maintained the second charter as its Constitution until 1780.  In wrapping up this discussion, Onuf considered the question as to whether an imperial constitution were a concept fundamentally in opposition to Parliament.  As the king was embedded in Parliament, that entity should have sovereignty – yet can that be so in the case of empire?  The Declaration, it could be argued, was suggesting that the king’s actions (or inaction in relation to actions taken by Parliament) had reduced colonial elites from one level to the next of the debased and enslaved – we had to strike out on our own in order to preserve the continuity of the protections, rights, and property, etc that the empire had previously provided.

In closing, Onuf observed that the British at home were, in some cases, ambivalent about the future of the colonial elites.  Scottish philosopher Adam Smith  argued in favor of letting the colonies go free so they can carry the overhead costs of running a government.  Smith suggested that the American colonial elite would still see their economy based on the metropolis centered in Britain so what would truly be the difference?  In addition to being a waste of money, the desire to keep control of the Americans was a violation of “the most sacred rights of mankind.”  Finally, Onuf asked an important question for students of the United States to consider – are we as Americans in denial about the traditions of continuity and expansion that exist within our U.S. Constitution?  Have we based our government on republican values in arguably an ostentatious way but also continued  the ideas of the imperial system in the form of protecting property, rights, security, etc?

Lindsay Robertson on land, law, and Indian Policy in the Colonial and Revolutionary era
Shifting gears to a more practical series of examples of expansion, Pr. Robertson spoke to participants about the study of law and practices by which land was acquired, purchased, and sold and how Indian titles to the land were extinguished by treaty, purchase, and by conquest.

Pr. Robertson offered us a useful exercise on teaching students about Spanish policy after Columbus’ arrival – instructors might have their students ask, what, were “we” (the Spanish), wanting in relation to this territory?  Ultimately, the Spanish created the encomienda system because they cannot pay the native people for the land.  All residents were forced to stay on the land and work for the Spanish officials in charge of the land.  Could students foresee such a system in their own responses, or perhaps a version of it?

Robertson asked another interesting question about why some Europeans began to question their purpose in the Americas as it related to legally acquiring land.  In Spanish territories, after 1513, the requiremento, an example of which can be seen here, was to be read on arrival explaining the legal right to land.  This tradition leaves the expanding modern world of the sixteenth century with virtually all countries where Spanish military conquest exists and a ruling class that is highly race conscious.  French Canada has some similar logic and the French also appealed to the pope to allow French merchants and explorers to bring Christianity to the Algonquian speaking people of the northern stretches of North America.

These two histories beg the question – why was the English experience different? As English expansion too place post reformation (largely after the 1530s) there remained a religious imperative, yet this reason was not the main motivating factor in extending English territory, property, rights, etc.  Arguably there was a more commercial enterprise dominating the experience, and the English entered into treaty systems in large numbers – different from the Spanish.  A typical treaty included boundaries, rules for peace, trade, criminal jurisdiction, etc.  Students might make use of the treaty of middle plantation in 1670s as an example.  Robertson emphasized that the colonial government of the English settlements was largely hypothetical – settlers were filing deeds willy nilly, so restrictions on land purchase (and therefore restrictions on liberty???) were placed into effect.  To extend our earlier conversation about concepts of continuity after the creation of the United States, this tradition became part of Federal law as well.

We closed our fascinating (and full) first day with discussions about continuity and discontinuity when it came to dealing with the Proclamation of 1763.  The question of land rights acquisition was, argued Robertson,  “future forward” interpreted based on Johnson v. McIntosh (or check out this 2 minute summary on youtube).  While the latter issue is focused on questions of “discovery doctrine,” the former restricted the ability (right? security?) of American colonial elites at extending their property.  Colonial governors were not permitted to grant land and people could not buy land on their own as per the proclamation by the king.

Getting land properly – with a warrant for fixed number of acres, locating the land through examination of public records, marking the boundaries with your initials, bringing  back description to the public record, hiring a licensed surveyor who then tries to find it based on your description – was a time consuming process that resulted in your being awarded a patent on the land.  After 1763, governors could not issue these patents – in theory, the proclamation prevented the “riff raft” from getting the land ahead of the elites.  These elites could locate and mark the land ahead of time awaiting the repeal of the proclamation – if one were to figure out the dates of issuance for license for a particular survey and did a mileage study, one could figure who might have filed claims a bit early.

Robertson described how this “legal” expansion worked for PA wealthy folks – the efforts of Camden and Yorke to change the laws (1757) were related to issues in gaining land title for the British East India Co. in India.  An individual named William Murray (1772) discovered that by slightly editing the document which had changed requirement to have the king’s signature for India lands, you could apply it to lands west of the Appalachians thanks to an accident of Columbian nomenclature (see Jack Sosin’s book on White Hall and the Wilderness for more and the original text of the 1757 document compared to the altered version would be a good classroom exercise).  Essentially, Murray bought land from the Illini near Kaskaskia for trade goods and wanted to sell the land to Pennsylvanians.  British military leaders point out this idea seems weird but ok, admonishing, “remember, you can’t live here.”  For their part, General Thomas Gage and Lord Dartmouth, among others, are confused – is this true?  Robertson told participants a wonderful tidbit about how Gage’s letter on this topic wonders about the repeal of the proclamation and contains a postscript about “some guys in Boston dressed like Mohawks.”  Ultimately, once the revolutionary war starts, the Illinois and Wabash land company tried to get the Continental Congress to legitimize the claims on these lands from before the war.

Because speculation was key to making money, 18th century rich individuals pushed to make money more so through land investment and in so doing, called for extension of British rules of empire – was this the continuity for which Pr. Onuf argued passionately earlier in the day? Perhaps.  At any rate, a long day’s introduction in to expanding the borders of the United States and considering the role of law in that process had come to a close.



1.It is important to note that British debt at the conclusion of the Seven Years’ War in 1763 was significant; 14,3000,000 pounds is worth more per capita than the current debt here in the United States (2014). In addition, resolving these financial issues were key to concepts of centralizing the British military state.

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Considering the Constitution

Jack N. Rakove, editor, The Federalist, Alexander Hamilton, James Madison, and John Jay The Essential Essays

Twenty-five pages into his introduction to The Federalist, Pr. Rakove makes an important statement. The Federalist was, firstly an argument for union – but, it is “both an argument about the necessity of national government in general, and a defense of the particular form of national government proposed by the framers at Philadelphia” (25). This is one of the many key ideas enterprising readers may glean from this Bedford Series offering.

Rakove offers thoughts on why The Federalist still appeals, stressing that readers should understand that the essays were a “contribution to a specific political debate” (viii). Further, Rakove argues that you need to know something about the authors to better understand the documents. This observation should be no surprise to regular readers of history. I can recall being pressed to research author’s backgrounds in my first college level history course taught by the late J.J. Holmes. There is, J.J. Would call out, crooked finger pointed everyone yet no one, no reason not to know something of your author – it can explain so much! This volume includes clear, concise biographies of John Jay, James Madison, and Alexander Hamilton. Each is extremely useful for instructors seeking to crib information for course discussions based on the Constitution and the Federalist Papers.

There are a number of fascinating points made by Rakove in the introduction. He points out that while Hamilton wrote 3/5 of the essays, only three of his writings crack most “top ten” lists. Rakove explains that this could be due to Hamilton’s subject – chiefly, he focused on why a strong union is necessary. For our nation, where unity is often perceived as a “given,” many of Hamilton’s essays may no longer resonate.

So why do we examine these documents and ask our students to evaluate the rhetoric? We can read them as lines of evidence – herein we see the issues that concerned the delegates at Philadelphia or the arguments to be made in favor of ratifying the constitution. Finally, close study of the essays lets us in on the political philosophy of Madison and Hamilton. To be successful with the documents, we must understand the context, so Rakove provides a short introduction to why the meetings at Philadelphia took place at all (3-6).

Hamilton and Madison generally held that Congress required power in order to protect the nation, and in order to do that, the national Congress had to have revenue. As Madison pointed out, a national government cannot stand if it is based on the idea voluntary compliance by the states (11). When politicians spoke against the ratification, they often found themselves defending the ineffective Articles of Confederation which did exactly what Madison said does not work – depend on the kindness of states (18,19).

Federalist writers answered critiques about consolidation of national power, omission of a bill of rights and more in these essays. Ultimately the first 30+ essays of The Federalist say little about the forms of government that the Constitution would create. Only with Madison’s #37 do some of these details emerge and this was after five states had ratified the Constitution (25). In some ways, argues Rakove, The Federalist is a campaign document seeking to persuade readers, but, and this is important, readers of the time. It is possible, suggests Rakove, that Publius cared little about how we might read the document (29, 30).

For historians, that thought is okay – we don’t tend to look at documents of the past thinking, “they must have known exactly why they wrote that down.” And yet, we also live in an age when our society is pressing constantly to understand the past, though more often than not, on our terms. We get into arguments about “what the founders meant” and we should understand in reading The Federalist that sometimes the founders were not sure what they meant.

Give this edition a try – in addition to the excellent background piece, Rakove provides context paragraphs for every essay, vocabulary, explanatory footnotes, #85 (which gives Publius the concluding statement in “his” collection), a helpful Constitutional chronology, study questions, and a “read more” section. In a small package of just over 230 pages, instructors (and readers interested in better understanding this unique moment in time) can find an excellent companion to the study of the Constitution.

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