To “Facilitate Future Invasions of the Remainder”: Westward Expansion and its Natural Enemies in the Federalist Papers

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Stephen Holmes

[October 28 DRAFT]

To “Facilitate Future Invasions of the Remainder”:

Westward Expansion and its Natural Enemies in the Federalist Papers
No Man can, by Care taking (as the Scripture saith) adde a Cubite to his Stature, in this little Modell of a Mans Body: But in the Great Frame of Kingdomes, and Common Wealths, it is in the power of Princes, or Estates, to adde Amplitude and Greatnesse to their Kingdomes. For by introducing such Ordinances, Constitutions, and Customes, as we have now touched, they may sow Greatnesse, to their Posteritie, and Succession.

  • Francis Bacon1

Was the Constitution of 1787 framed with a general theory of constitutions and constitutionalism in mind? The prospect of providing a capsule account of all the half-spoken theoretical assumptions of several dozen individuals whose minds were mixed, whose ideas were evolving, and who disagreed among themselves is, to say the least, remote. But it nevertheless seems safe to say that the majority of delegates to the Federal Convention thought it worthwhile to invest their time in constitution-making because they saw constitutions as instruments of government and the existing charter as a woefully inadequate tool for achieving a series of important, mostly agreed-upon ends. Their constitutionalism was basically strategic, therefore, designed in the hope of enhancing the combined problem-solving capacity of the three branches and two levels of government. They fought over how their government should be organized, moreover, because of what they wanted their government to do. Primarily concerned with enabling government to act effectively, they wished to incapacitate government only selectively, secondarily, and for the most part instrumentally. When James Madison wrote of “communities united for particular purposes” (#39),2 he was identifying the principal task of the Constitution not with checking power but rather, in John Jay’s words, with “combining and directing the powers and resources of the whole" (#4) toward the achievement of collective aims. Alexander Hamilton was neither speaking solely for himself nor for some energetic-government fringe, therefore, when he identified “the restraints of a federal constitution” (#7) with restraints that the proposed federal government was constitutionally authorized to impose on states, corporations and private individuals, not primarily and certainly not exclusively with restraints to be imposed on the federal government itself.

My aim in what follows is to explore the theoretical origins and implications of the Framers’ fundamentally enabling (not fundamentally restraining) constitutionalism by focusing on the way the 1787 Constitution was consciously designed to facilitate territorial expansion and Indian dispossession. The structure erected in Philadelphia was meant not merely to house but also to systematize, reconcile, and coordinate the expansionist aspirations of regions, states, corporations and individuals. The nationalist argument that America should “be one nation, under one federal government” for “all general purposes,” includes, implicitly, the assumption that continental expansion and Indian dispossession, among other aims, are general purposes in “the interest of the people of America” (#2). The Framers new-modeled the faltering federation they had inherited in order to help their countrymen seize the opportunities for power and prosperity latent in the vast still-unsettled frontier. Expansion was a principal not secondary aim. As Madison candidly explained, "the immediate object of the federal Constitution is to secure the union of the thirteen primitive States, which we know to be practicable; and to add to them such other States as may arise in their own bosoms, or in their neighborhoods, which we cannot doubt to be equally practicable" (#14). In this sense, the Constitution was meant to promote, not obstruct, the legendary “encroaching Nature of Power.”3 Or rather, it was framed to promote the encroaching nature of American power in order to fend off and drive back what its creators identified as the encroaching nature of British, Spanish, and Indian power.4
The key constitutional principle facilitating territorial expansion and Indian dispossession was the Equal Footing Doctrine. This principle does not appear in the text of the Constitution. In fact, the proposal to include it at the Federal Convention in Philadelphia was defeated on August 29, 1787 by a vote of 9 to 2.5 Yet despite this verbal excision, the Equal Footing Doctrine was, for all practical purposes, constitutionally entrenched by a combination of Art. IV, Section 3 (“New States may be admitted by the Congress into this Union”), Article I, Section 3 (“The Senate of the United States shall be composed of two Senators from each State”) and Article IV, Section 1 (“Full Faith and Credit shall be given in each State to . . . every other State”). That this entrenchment was purposive, not accidental, is strongly suggested by the Northwest Ordinance, passed by the Congress of the Confederation on July 13, 1787, in coordination with leading delegates to the Philadelphia Convention meeting at precisely this time. Concerning the states to be eventually carved from of the Ohio lands, the 1787 Ordinance declares: “whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States in all respects whatever.”6
Newly admitted states with only 60,000 inhabitants were guaranteed the same number of Senators as the most populous seaboard states. This seems surprisingly generous on the part of the Congressmen who approved the Northwest Ordinance, all of whom, needless to say, were easterners. But it is unlikely to have been an act of selfless altruism. The Equal Footing Doctrine forbids the states of the Union from acting through Congress’s admissions power to impose restrictions on new states that are not to be applied to themselves as well. To understand why the majority of the delegates to the Federal Convention, too, implicitly embraced this framework, we must examine what shared and rival purposes they assumed it would enable them, jointly and severally, to achieve. To understand why their successors as well long adhered to the principle, we also need to explore why the Equal Footing Doctrine was seen, over time, as continuing to serve the common or conflicting political goals of influential social forces. The admission of Tennessee into the Union in 1796 “on an equal footing with the original States in all respects whatever” was an early clue that subsequent generations were going to treat the Equal Footing Doctrine as if it were a deeply entrenched constitutional principle. The Doctrine was further enshrined as states beyond the Old Northwest, such as Louisiana and Texas, were admitted under the same condition.
Although I have thus far been speaking loosely of “entrenchment” to signal the crucial importance of the implied Equal Footing Doctrine to the Framers’ Constitution, I am not entirely comfortable with the implications of the concept. Entrenchment implies hostility to change and obstacles to power, while the Equal Footing Doctrine was tacitly endorsed not to block but to systematize a chaotic process of western settlement, and not to confine but to swell American power by binding the new territories perpetually to the original states. The Equal Footing Doctrine remained politically anchored, metaphorically speaking, so long as the system for taking piecemeal control of the Western territories by following the blueprint set forth in the Northwest Ordinance continued to function neither perfectly nor consistently but well enough. The Constitution’s unprecedented harnessing of self-government in the states to nationalistic expansionism continued to be accepted because it continued to serve powerful (not necessarily harmonious) interests of well-placed members of subsequent generations, not because it was super-glued to a superannuated piece of constitutional parchment.
That the Framers thought of the Equal Footing Doctrine in basically instrumental not normative terms can be made clear, I believe, by examining the pre-history of the principle in the Albany Plan of 1754, in the Royal Proclamation of 1763, and in the Congressional debates surrounding the drafting of the Articles of Confederation. But before exploring the powerfully pragmatic function persistently attributed to the Equal Footing Doctrine in the decades before 1787, and then proceeding to document how Madison and Hamilton in particular consciously built upon that prior understanding, we need to dig a bit deeper into both the history and the theory of enabling constitutionalism.

Primitive Constitutions”

The core meaning of “to constitute” is neither to constrain political power for the sake of individual liberty nor to entrench limits on the behavior of government officials in the name of moral norms or prudential concerns. What “to constitute” signifies, in the first instance, is to set up. The word “constitution,” according to Diderot’s Encyclopédie, “signifie en general établissement de quelque chose.”7 What the Philadelphia constitution-makers aimed at, en particulier, was the “erection of a new Government” (#81). During the ratification debates, they worked tirelessly for “the establishment of the comprehensive system” (#14) that they had framed. Virtually without argument, then, they assumed that constitution-making was state-building by another name.
They may not have suffered “a blind veneration for antiquity” (#14), but members of the Framers’ generation freely emulated not only Roman pen names and architectural styles but also ancient constitutional practices whenever the latter seemed serviceable in current political circumstances. Because they identified the “constitution of government” (#83) not with the protection of individual rights but with “the organization of the government” (#85), the Framers took it for granted that constitutionalism was coeval with the emergence, in the far-distant past, of territorially anchored political societies organized to defend their boundaries against marauding tribes.8 The radical innovation of, say, the Massachusetts constitution-makers was not in constitutional ordering itself but rather in their method for framing and ratifying the constitution, by committee and popular vote. So far as constitutionalism goes, American exceptionalism consisted only in “the improvement made by America on the ancient mode of preparing and establishing regular plans of government” (#38). The Philadelphia Constitution was fully American in this procedural sense. Substantively, its “interior structure and regular operation” (#18) owed a great deal to ancient plans of government, especially but not exclusively to that of the most illustrious ancient republic, Rome.9
The Framers’ attentiveness to “primitive constitutions” (#18) should remind us that the legendary constitution-makers or Great Legislators of antiquity were worshipped as religious figures not because they protected minority rights but because they organized their communities for military defense and conquest.10 For the Latin writers of the classical age, moreover, to constitute (constituere) a republic meant to found and organize it for duration, prosperity, mutual assistance, common defense and territorial aggrandizement. When he referred to the constitutio rei publicae,11 for instance, Cicero meant the morphological structure and operating code of Rome’s republican government, the system of major and minor magistracies, the scheduling and organization of elections and judicial trials, the interweaving of Senatorial deliberation, popular approval, and consular action, and also the policy of granting citizenship rights to conquered inhabitants of the Italian peninsula in exchange for military service, a practice that made Rome into the first extended republic in history. Its territorial extent also made it capable of fielding armies larger than any other republic in antiquity.
Polybius’s Histories argues that Rome’s military and political successes were due to its political institutions, that is, to “the form of the state’s constitution [politeia].”12 The entire Mediterranean world fell under Rome’s sway because Rome, during its most virtuously republican phase, was politically organized for dominion. According to Andrew Lintott, “Polybius’ association of Rome’s phenomenal military success with the excellence of her constitution may surprise twentieth-century readers, but it was almost self-evident for a Greek intellectual from within the governing class of the period.”13 It was equally self-evident for Latin speakers, perhaps because one of the meanings associated with the word constitutio was organizing military forces and erecting fortresses in preparation for war.14 Constituere referred generally to establishing and arranging; but one of its principal meanings was stationing troops and deploying them in battle formation. For example, “Caesar stationed the legion” is “Legionem Caesar . . . constituit.”15 Similarly, “the Roman army took the field” is “constitit Romana acies.”16
Because the American Framers were quite familiar with the writings of Polybius and the Latin historians of republican Rome,17 they would have been fully aware that political organization was generally credited with spawning Rome’s formidable military power as well as facilitating its extraordinarily rapid transformation from a meagerly populated city on the periphery of civilization into the acknowledged master of the world.18 They also knew, or thought they knew, that Rome had undertaken imperial expansion to manage domestic factionalism and resolve domestic crises. And of course they were aware that veterans of Rome’s wars were awarded bounties of arable land carved out of territory that the Legions had conquered. This was just another aspect of Rome’s military constitution thought worthy of emulation by aspiring modern republicans.
Euphemism aside, to say that the Roman Republic was organized for “civic virtue” is to emphasize its drill-hardened readiness for offensive and defensive war. True to its etymology, the Framers’ constitutionalism had more to do with martial self-assertion than with civilian self-restraint. The “constitutional” task, in the first instance, was to create power out of powerlessness. Relentless discipline could “constitute” a disorganized rabble into an effective fighting force. This was a Roman lesson well learned by the once-and-still embattled Revolutionary generation. Reflecting on the amateurish militia of undisciplined independent yeomen who had frustrated and disgusted Washington throughout the Revolutionary War, Hamilton deplored the "slow and scanty levies of men, in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; continual fluctuations in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a disbanded army" (#22). Military hierarchies, alternative combat formations, orders of battle, principles of engagement and so forth made up the rudimentary protocols of a professionally constituted military force. To socialize officers and troops in these war-fighting rules and roles required sustained and concentrated effort: “War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice” (#25). Baron von Steuben’s Revolutionary War Drill Manual contained no encomiums to laissez-faire.19
The constitution of military capacity is an indispensable building block of any political constitution which aims to enhance a community’s defensive and offensive posture in a hostile international environment. The need to place the state militias “under one plan of discipline” (#4), designed to pool and coordinate the resources of militarily unimpressive states suffering from attention deficit disorder, was one of the main reasons Hamilton gave for strengthening the general government: “confiding the regulation of the militia to the direction of the national authority” will permit “uniformity in the organization and discipline of the militia” and will “enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army” (#29). Only by extending the authority of the national government throughout the states will it be possible to “establish uniformity and concert in the plans and measures by which the common safety is to be secured” (#23). Because it will be "constituted the guardian of the national security" (#29, my emphasis), the general government will also have to organize “a force constituted differently than the militia” (#28, my emphasis), not only to repress insurrections but also, and especially, to fight the Indian wars. Freely available to indigenous warriors, guns and horses would not suffice. Only a formal command structure culminating in a commander-in-chief would give the Americans the military wherewithal to break the Indian power, eject the European “intruders,” and provide enough security to the Old Northwest, now in the hands of the national government, to transform it into a lucrative magnet for speculators and land-hungry settlers.
For eighteenth-century American students of classical antiquity, in sum, “constituting” a political community was no more about restricting the government’s power than training recruits was about shrinking the army’s capacity to launch and repel attacks. The history of the word “constitution” is therefore of more than etymological significance. Thus, when discussing national security, an arena where political, diplomatic, and military power must work in unison, Hamilton rejects the facile optimism of hand-tying constitutionalism in the strongest possible terms: “there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the formation, direction, or support of the national forces” (#23).
Conscious that Rome’s constitution facilitated that republic’s expansionistic and annexationist successes, the Framers could not possibly have seen the Constitution’s “shall not” clauses as the beating heart of republican constitutionalism. This is not meant to deny the crucial importance, then and now, of various don’ts and prohibitions (such as “No Bill of Attainder or ex post facto Law shall be passed”) inserted in the document they drafted. But it does imply that we can better interpret the limits placed on government by the 1787 Constitution if we abandon for a moment the libertarian polarity of rights versus power, inapplicable to the exposed and vulnerable situation of a settler society that had lost not only its imperial oppressor but also its imperial protector. The appeal of constitutional rights can be explained in a variety of ways. The one which arguably best fits the American context describes them as incentives to cooperate in a long-gestation state-building project. Possessed of scant fiscal and administrative capacity, the new-born American state had to enlist the support and channel the efforts of private individuals, families and small-scale communities into a shared plan of national development.20 Liberties both personal and political were enlistment bounties, designed to harness the energies of individual citizens to the nation’s expansionist venture. To whatever moral heights their defenders rose, political and civil liberties were always also justified on pragmatic grounds, as the most effective means available to a basically insolvent and bureaucratically underdeveloped state for exploiting the potentialities of the American hinterland and eventually overtaking the arrogant nations of Europe in opulence, power and, needless to add, continental scope. Whether or not individual rights and even states’ rights are inviolable, in some ineffably normative sense, both were embraced and supported in practice by America’s resourceful state-builders because their judicial and political defense helped mobilize and direct public support for collective projects, including the basically economic, although militarily accompanied, westward thrust of American power.
Drawing lessons from republican Rome, incidentally, did not impede the Framers from seeking and finding further inspiration in the achievements of ancient Israel. Constitutional Union, it seemed, could boost the power of a people not only to seize coveted territories but also to expel the previous inhabitants. That, at least, was a lesson that the American Framers could draw directly from the Hebrew Bible. The constitution of ancient Israel, first under King Saul and then under King David, was obviously monarchical and in that trite sense anti-republican, but it also consolidated the loose and quasi-anarchical federation of twelve Israelite tribes into a More Perfect Union and thereby fostered not only collective defense but also land seizure and the dispossession of Canaanite tribesmen worshipping alien cults. Plunging westward, the roughest American frontiersmen and Indian killers, if they ever encountered a preacher, were presumably delighted to learn that the ethnic cleansing of the West conformed to rightly interpreted divine commands: “when the LORD your God delivers them [seven nations that previously inhabited the land] over to you and you defeat them, you must completely destroy them. Make no treaty with them and show them no mercy. Do not intermarry with them. Do not give your daughters to their sons or take their daughters for your sons . . . this is what you are to do to them: tear down their altars, smash their sacred pillars, cut down their Asherah poles, and burn up their carved images.”21
This may seem harsh. But the enthusiastic expansionist Benjamin Franklin secularized not only the Puritan work ethic but also the Puritan dream of an “American Israel,”22 writing in 1751 that “the Prince that acquires new Territory” and successfully “removes the Natives to give his own People Room” should be counted among the justly celebrated “Fathers of their Nation.”23 The man who would live to be the oldest, the most ingenious, and one of the two most celebrated delegates to the Philadelphia Convention, in other words, unsentimentally described Indian removal as an indispensable precondition for securing the blessings of liberty to “our posterity,” doubling every twenty-five years, in contradistinction to the posterity of indigenous peoples, spiraling toward extinction.24 We the people, it turns out, are “a people descended from the same ancestors” which is why “Providence has been pleased to give this one connected country” wholly and exclusively to us (#2).

Ancient Rome’s constitution facilitated that ancient republic’s astonishingly rapid territorial expansion. The Union of twelve Israelite tribes facilitated the forced removal of previous inhabitants from the Promised Land. And indeed these celebrated polities of the ancient world provided the American Framers with stirring models of enabling constitutionalism. But pointing out two illustrious precursors is only scratching the surface. Organized political systems have existed in the world for perhaps 5,000 years. It is inconceivable that several millennia of experimenting with primitive constitutions, including “antirepublican Constitutions” (#43), would have left no traces on the relatively brief 250 years of modern constitutional thought and practice. Admittedly, many eye-catching parallels between archaic and modern constitutions may simply represent accidental isomorphism, resulting from the need to manage similar problems, without any genealogical connection or influence. Such problems would include: what to do when the ruler dies, how to tax efficiently, how to levy and train military forces, how to assuage intra-elite factionalism, how to mitigate class warfare, and, most relevant for present purposes, how to prevent territorial secession. To say that “Security against foreign danger is one of the primitive projects of civil society” (#41) is to say that “national” security is an imperative naturally shared, without borrowing, by all political communities throughout human history. But archaic constitutional orders where liberty, democracy, humanity and justice played no role whatsoever were also closely studied by America’s constitution-makers in search of models to imitate as well as to avoid.

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