From Constitution Making to State Building: The Washington Administration and the Law of Nations

From Constitution Making to State Building: The Washington Administration and the Law of Nations

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When Gouverneur Morris observed in a letter to George Washington that “no constitution is the same on paper as in life,” he sent a warning and a call to action. The Philadelphia convention had submitted the proposed constitution to the states one month earlier. States were just beginning to organize conventions to consider whether to ratify it. Already, however, Morris was looking beyond debates about the document’s meaning and toward actual governance. It was a plea, of course, for Washington to hold himself up for the office of the president. But Morris’s goal was not just to place the right man in the right office. Federal officials would also have to share the right goals when turning the Constitution into a government. Strong text was not enough. Neither was good personnel. State building required establishing habits, customs, and precedents that would embed the constitution makers’ purposes into the institutions of the federal government. There was a large consensus about the most general purposes, and not just among Federalists. Twin goals widely shared across the revolutionary generation were to keep true to republican government while also forming a “civilized nation” that would be respected abroad, across Europe of course, but especially by the foreign polities surrounding the United States. The desire for respect was partly instrumental: diplomats and merchants across the Atlantic world closely monitored government developments in America to gauge the faith and reliability of the revolutionary states. It was also, however, existential: many revolutionaries, Federalists especially, sought “recognition” under Enlightenment standards for their new nation, as well as for themselves. The standards of that civilization and many means for achieving it were located in the law of nations: in treaties, such as the United States had by 1787 negotiated with France, Britain, and several Native American nations, as well as in the customary law of nations. Together they formed, as Federalist jurist James Kent instructed his law students at Columbia College in 1794, “that system of rules which reason and custom have established among the civilized nations of Europe.” The Washington administration repeatedly invoked those rules to make good on the promise of “civilized” governance. A primary goal was to answer long-standing European criticism of its faithless behavior and, having done so, then demand full recognition and respect for its equal status as a nation. A related failure was the confederation’s inability to negotiate effectively with Native American nations. Here too, treaties could be made but not kept. In both cases—European and Native American diplomacy—the state governments were not the only source of the problem. British merchants and consular officials routinely faced harassment in the seaports, adding support for hard-line approaches to American commerce among policy makers in London. Deadlier violence characterized the West, where American citizens streamed onto land held and claimed by Native American nations. To manage both of these problems, the administration strove to rely on conventional rules and norms of the law of nations to demonstrate American compliance, complain about European and Native American violations of American rights, and enjoy all the powers to carry out war and commerce as well as, in the words of the Declaration of Independence, “all other Acts and Things which Independent States may of right do.” The reverse side of national self-discipline was, therefore, federal strength. The agents enforcing compliance with treaties and the customary law of nations were federal officers, and the primary targets were American citizens as well as representatives of foreign powers. All this fit a larger trend of the nationalization of power for the purpose of demonstrating American competence and respectability as a nation, secure the territory ceded by Britain, and gain the commercial benefits of Atlantic trade and financing. The Constitution’s text was not a cipher. It provided key scripts and directions. But much actual state building was improvised. The text did not provide answers for many of the questions that bombarded the federal government. It did not always even clarify who should answer those questions. Because problems often landed first on the desks of the only federal officials always in session—the executive—President Washington and his advisors took the lead. And while striving to act and be seen like a nation, federal officials in the Washington administration engineered innovations that further entwined the new Constitution with the law of nations. Improvisation in pursuit of respect and prosperity within the Atlantic world was not the only motive driving American state builders to innovate on the law of nations during the 1790s. Some sought a revolution in the way nations interrelated that would extend their own struggle against imperial restraint to the entire Atlantic world, change what it meant to be a civilized nation, and yield even greater prosperity. Like the earlier revolution, this one targeted the British Empire. Thomas Jefferson and James Madison, in particular, viewed Britain as a stronghold of retrograde and dubious interpretations of the law of nations. They championed instead innovations that drew on Enlightenment-era trends in the law of nations as well as undertheorized imperial practices to reform that law, including what Jefferson called “a jus gentium for America.” Two examples included liberal commercial rules in war and peace that would foster free trade and a countervailing claim to enjoy a monopoly on commercial and diplomatic relations with indigenous people within US territory—the context for Jefferson’s claim that there was in fact an American law of nations. These two strands of American argument about the law of nations—the pursuit of full national recognition under the existing regime and revolutionary challenges to that regime—were tightly entwined in early federal state--building projects. All the leading state builders, whether they leaned toward conventional or revolutionary approaches to the law of nations, referred to the same sources of authority: European treatises and admired treaties, as well as a transnational stock of legal understandings, or customs, about how governments were supposed to operate at home and abroad. Similarly, some of them, like Jefferson, invoked both strands, sometimes at the same time but with different people. Finally, the law of nations had legitimating power not just within the new, relatively weak United States. It provided the idioms and grammar of power across the Atlantic world, and foreign nations demanded that the Washington administration comply with it. But Washington and his officials could also use the law of nations to defend themselves against encroachments on their independence and then frame their own imperial projects within its terms. The law of nations, old and new, permitted the United States to harness the energy of its revolution while forging what was supposed to pass as a “civilized” nation.

Source Publication

Washington's Government: Charting the Origins of the Federal Administration

Source Editors/Authors

Max M. Edling, Peter J. Kastor

Publication Date

2021

From Constitution Making to State Building: The Washington Administration and the Law of Nations

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