Document Type

Article

Publication Title

Fordham Law Review

Abstract

When early Americans talked governance, they used the language of the law of nations. Claiming membership in a world of self-denominated “civilized nations,” the revolutionaries had little choice. The law of nations was the lingua franca of diplomacy. Yet in the eighteenth-century it was much more, also offering resources for envisioning how to govern a nation internally. The law of nations included principles, doctrines, dispute resolution institutions, and compendia of “best practices” circulating through Enlightenment Europe. It was also characterized by a reflective, sociable style of reasoning, in which nations were supposed to make decisions by imagining how other nations would judge them. In sum, the law of nations was a language for working through the process of building a state that was supposed, in concert with others, to contribute to “civilization.” Three dimensions of the early modern law of nations made it especially useful to American state builders. First was its strictly international dimension, similar to what is now called public international law. A second dimension contained a host of historical examples of domestic governmental institutions and policies, as well as an ongoing transnational conversation about what it meant to be a civilized nation. As a precursor to comparative constitutional law, this dimension offered the founding generation guidance as it sought to build and navigate the complex federal structure of its government. Finally, a third, transnational dimension contained natural law principles and common usages that were supposed to help coordinate cross-border relations among states and their citizens. Commercial and maritime law were exemplary. Though today classified as “private law,” in the eighteenth century these bodies of doctrine too were branches of the general law of “civilized” states. Recovering this three-stranded language of governance sheds light on the origins and early history of the U.S. Constitution. Most generally, it reveals the pervasiveness of the law of nations within early American constitution-making and governance. The intense resort to the law of nations also illuminates the connection between the domestic and the foreign, constitution-making and diplomacy, commerce and international civilization. Like many legal languages, the law of nations was made to be used and could be remade along the way, making it especially suitable to guide the founding generation’s attempt to govern the ungovernable. Because legal understandings of the founding generation continue to influence constitutional construction more than two centuries later—and not only among originalists—recovering early Americans’ use of the law of nations facilitates a deeper understanding of their revolutionary project.

First Page

1841

Volume

89

Publication Date

2021

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