The Savage Constitution

By Ablavsky, Gregory | Duke Law Journal, February 2014 | Go to article overview

The Savage Constitution


Ablavsky, Gregory, Duke Law Journal


ABSTRACT

Conventional histories of the Constitution largely omit Natives. This Article challenges this absence and argues that Indian affairs played a key role in the Constitution's creation, drafting, and ratification. It traces two constitutional narratives about Indians: a Madisonian and a Hamiltonian perspective. Both views arose from the failure of Indian policy under the Articles of Confederation, when explicit national authority could not constrain states, squatters, or Native nations. Nationalists agreed that this failure underscored the need for a stronger federal state, but disagreed about the explanation. Madisonians blamed interference with federal treaties, whereas the Hamiltonians argued the federal military was too weak to overawe the "savages."

Both accounts resulted in constitutional remedies. More important than the Indian Commerce Clause, new provisions secured by the Madisonians declared federal treaties supreme law, barred state treatymaking, and provided exclusive federal power over western territories. But expansionist states won concessions guaranteeing federal protection and western land claims, while other provisions created a fiscal-military state committed to western expansion.

The two narratives fared differently during ratification. While few embraced centralization, many Federalists repeatedly invoked "savages" to justify a stronger federal state and a standing army. This argument swayed Georgia, which ratified to secure federal aid in its ongoing war with the Creek Indians. But it also elevated the dispossession of Natives into a constitutional principle. The Article concludes by exploring this history's interpretive implications. It suggests the Indian affairs context unsettles conventional understandings of the Constitution as intended to restrain the power of the state, and challenges both originalist and progressive assumptions about constitutional history.

TABLE OF CONTENTS

Introduction

I. The Articles' Failures

      A. Drafting the Articles
      B. The Creation of Congressional Indian Policy
      C. The Failure of Congressional Indian Policy

         1. The North
         2. The South

      D. Lessons of Failure

         1. The Madisonian Reading
         2. The Hamiltonian Reading

II. The Constitutional Convention

      A. The Madisonian Convention
      B. The Hamiltonian Convention

III. The Ratification Debates

      A. Madisonian Ratification
      B. Hamiltonian Ratification
      C. The Lesser of Two Evils: Ratification in Georgia
      D. Ratification as Compact and Its Legacy

IV. Legacies and Implications

Conclusion

INTRODUCTION

Only two speeches at the Constitutional Convention discussed Indians. (1) On June 19, 1787, James Madison argued for expanded federal authority, emphasizing that Georgia had "directly" violated the Articles of Confederation when it "made war with the Indians, and concluded treaties." (2) A day earlier, Alexander Hamilton, in a lengthy speech arguing for a much-strengthened federal government, listed three "important objects, which must necessarily engage the attention of a national government." (3) "You have to protect your rights against Canada on the north, Spain on the south, and your western frontier against the savages," he warned. (4)

The text the Convention produced also mentioned Indians twice: once to exclude "Indians not taxed" from the apportionment of representation in the House of Representatives, (5) and once to grant Congress the power to "regulate Commerce ... with the Indian Tribes."(6) Neither provision occasioned any recorded debate) Histories of the Constitution, even very recent ones, assume this absence reflects Indians' irrelevance, and so almost entirely omit Natives. (8)

This Article reexamines this history and contends that debates over Indians played an important role in the Constitution's creation, drafting, and ratification, particularly in the push for a stronger federal state. …

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