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Fall 2017

First States, then Nation

book cover imageThe American Revolution, State Sovereignty, and the American Constitutional Settlement, 1765–1800
by Aaron N. Coleman.
Lexington Books, 2016.
Paper, 259 pages, $46.99.

Richard M. Gamble

In 1867, exulting in the Union victory in the Civil War, Massachusetts Senator Charles Sumner asked a Republican audience at the Cooper Union in New York, “Are we a nation?” His answer was resounding and emphatic. The arc of modern history bent toward the formation of consolidated nation-states, and the United States was no exception to this trajectory. The North’s decisive end to “the bloody Rebellion” in 1865 had rescued “National Unity” from “the fatal pretention of States’ Rights.” Sumner found even the word “federal” to be the wrong name for America’s true identity. The Founders’ intentions, he averred, had been clear already in the “one people” announced by the Declaration of Independence and vindicated in the Constitution of 1787, that singular achievement in nation-building that had overcome the Articles of Confederation’s perilous retrograde movement toward “de-nationalization.”

Sumner’s triumphalist account of history and of America’s place in that grand narrative, while understandable coming from a Radical Republican in the immediate postwar context, had more to do with Romantic nationalist philosophies of history than with history itself. America’s war of unification, like Italy’s and Germany’s in the same decade, was anything but inevitable. A counterforce had always been there to challenge the nationalist vision.

That opposition is illuminated by historian Aaron Coleman in his fine study of the centrality of state sovereignty to what he calls “the American Constitutional Settlement.” Indeed, Coleman argues that state sovereignty was key to America’s constitutional order.

To say that Coleman’s painstaking reconstruction of the early Republic’s political history complicates Senator Sumner’s narrative doesn’t even begin to capture his achievement. Sumner, like so many others then and since, placed the purpose-driven nation at the center of the American story. Coleman “re-centers” that story by turning the advocates of state sovereignty into the dominant voice and Nationalists into, if not an aberration, then at least into a worrisome challenger to what a large number of patriots thought American liberty and self-government were all about. In this way, the Nationalists become the thing that needs to be accounted for, the historical problem to be solve, rather than the default mode of American history and the inevitable outcome of the Revolution and Constitution. If Coleman had achieved nothing more than a rhetorical paradigm shift, his book would be well worth reading.

But he has achieved more. Coleman has turned the controversy over state sovereignty back into what philosopher William James called a “live question.” Not necessarily a “live question” regarding twenty-first-century American politics—although it is hard not to raise that question by the end of this book—but rather a live question for the participants themselves in the last third of the eighteenth century. The history of the Revolution and the early Republic becomes in Coleman’s hands as open-ended for the modern reader as it was for the generation that resisted the Parliament and Crown, fought a war for independence through to victory, and struggled to build a durable constitutional order that would secure the blessings of liberty for the future. The best historians recover the controversies of the past in all their messy complexity and uncertainty. Humanly speaking, there was nothing foreordained about the outcome of these quarrels over good government two and a half centuries ago. If Coleman errs on the side of partisanship for state sovereignty, and some will no doubt say that he does, he at least turns the nationalism that Progressive and New Deal historians assumed to be a self-evident truth back into what it once was: a hotly contested vision of American greatness.

After setting up the colonial background, Coleman pursues state sovereignty in the first half of the book in the principle’s establishment in the Articles of Confederation, its alteration (but only that) in the Constitution, and its reaffirmation in the state ratifying conventions. In the second half, he shows episode by episode how the state-sovereignty advocates defended what they took to be the Constitutional settlement that they had agreed to in the fight over the Judiciary Act, the Tenth and Eleventh Amendments, and the mobilization of Jefferson and Madison against the Alien and Sedition Acts.

The colonies had become accustomed by long experience to self-government. They proved unwilling to part with that cherished autonomy. They had claimed an equality with Parliament within a “federal” empire held together by their own allegiance to the Crown and not by one mediated by Parliament. The states proved to be jealous guardians of their liberty for the sake of self-government and for the wellbeing of their peoples.

In the Declaration of Independence, the former colonies declared themselves to be “free and independent states” in 1776. As “states” (a strong word in the eighteenth-century context, Coleman notes) they secured equal representation for themselves under the Articles of Confederation and secured a written guarantee of their separate “sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated.”

The state-sovereignty position then put up sustained resistance to nationalist consolidation in the Constitutional Convention, in the state ratification conventions, and the effort to secure a Bill of Rights, most notably the Tenth Amendment’s succinct restatement that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” However toothless this amendment was to become, at the time of its ratification with the other amendments it seemed a clear reaffirmation of a federated republic with limited powers for limited ends.

For defenders of state sovereignty during the First Session of Congress, the Constitution’s silence never implied consent. Silence denied to Congress the kind and degree of powers the Hamiltonian banking, taxing, tariff, and industrial system required. Moreover, the states understood themselves to be at least as competent as Congress or the Supreme Court to judge violations of the Constitution, and several refused to be summoned before the Supreme Court as defendants in suits filed against them, leading ultimately to the Eleventh Amendment’s limitation of federal jurisdiction. The states also resisted the promulgation of a national common law that might override the states’ jurisdiction over civil liberties, especially the explosive question of seditious libel during the Quasi-War with France in 1798.

To his credit, Coleman manages to detach state sovereignty from its exclusive and misleading identification today with the Southern defense of slavery. The theory and practice of state sovereignty has a much longer and wider pedigree in American constitutional thought. Hopefully Coleman will continue his research to include the Hartford Convention (at which New Englanders planned secession) and the interposition the Massachusetts state legislature debated more than once during the Mexican War.

Coleman picks up on M. E. Bradford’s use of philosopher Michael Oakeshott’s distinction between “nomocratic” and “teleocratic” government, between a civil association and what Oakeshott called an “enterprise association.” A nomocratic order exists to protect a people under the rule of law and allows them to pursue their own ends within that system. A teleocratic regime, in contrast, pursues a grand design for human betterment. It is abstract and visionary while the nomocratic order is largely procedural and modest in its aims.

Since Coleman relies so much on Oakeshott’s vocabulary, indeed using it as an organizing principle, he would have helped his readers to see why this vocabulary matters if he had taken the time to explain Oakeshott’s distinction in more depth and clarity. By the end, it was unclear whether the state-sovereignty position is in fact inherently nomocratic and the nationalist position inherently teleocratic. Is it in the nature of state-sovereignty to be nomocratic and of nationalism to be teleocratic? Could we imagine a teleocratic decentralized system? Could we imagine a nomocratic nationalist order that adhered to strict constitutionalism? These questions are ahistorical, to be sure, but they are unavoidable given Coleman’s deployment of Oakeshott’s political philosophy. It may be that Oakeshott is of limited value when it comes to understanding the historical complexity on the ground in Philadelphia in the eighteenth century. (And I say this as someone who has used Oakeshott’s categories as a helpful rubric to understand broad tendencies in human behavior and aspirations. At some point, however, even the best political theory doesn’t do the job of historical analysis and raises more questions than it answers.)

Deeply engaged in primary sources, Coleman’s research has made it much harder to argue that the United States was (make that “were”) born a nation. Despite Abraham Lincoln’s contention at Gettysburg in 1863 that a “new nation” had been born on the North American continent in 1776, the historical record shows otherwise. We will never know if a decentralized federal republic would have survived the threats and challenges of a rapidly changing world, but we cannot write state sovereignty out of our collective memory and pretend it never existed as a counter-argument to nationalism. Are we a nation? We are, but not from the beginning.  

Richard M. Gamble is Anna Margaret Ross Alexander Professor of History at Hillsdale College and the author of The War for Righteousness and In Search of the City on a Hill and editor of The Great Tradition.

Posted: November 19, 2017

Did you see this one? book cover

The Soul of Man Under Socialism
André P. DeBattista
Summer 2017

The conservative believes that the individual is foolish, although the species is wise; therefore, unlike the confident intellectual, he declines to undertake the reconstruction of society and human nature.

Russell Kirk

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