The Savage Constitution

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

The Savage Constitution


Ablavsky, Gregory, Duke Law Journal


B. The Hamiltonian Convention

Yet if Madison's goal was to create a federal government that could pursue national interests free from state parochialism, he achieved imperfect success. Despite frequent talk of abolishing states altogether during the Convention, (282) the thirteen states retained independence and sovereignty under the Constitution. And through the creation of the Senate, the supermajority requirement for treaties, and the Electoral College, the states could exert considerable influence over federal policy even when the Constitution explicitly limited state authority.

This was certainly true in Indian affairs, where, despite the Madisonians' reforms, states retained significant control. Although the Constitution sharply restricted states' treaty powers, it did little to constrain states' authority over lands within their borders. And those borders remained capacious. Toward the end of the Convention, delegates from states without claims to western territory demanded that the Constitution guarantee national ownership of western lands, requiring that North Carolina and Georgia cede their claims. (283) North Carolina's delegation objected that "attempts at compulsion was not the policy of the U.S.," and Abraham Baldwin of Georgia argued in favor of adding explicit language to protect state claims. (284) In the end, the delegates agreed to a proviso to the Property Clause specifying, "[N]othing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State." (285) The Constitution also barred the dismemberment of these gargantuan states by prohibiting the formation of a new state within the jurisdiction of an existing state without legislative consent. (286) In short, the territory of Georgia and North Carolina, still extending to the Mississippi River, was now constitutionally guaranteed, and the federal government's Property Clause power could not reach south of the Ohio River until cession occurred. The most important Native nations remained within states' external borders and arguably under state jurisdiction.

The expansionist states won another significant concession in the Guarantee Clause, which promised that the "United States ... shall protect each [state] against Invasion." (287) More definitive than its predecessor in the Articles, (288) the Guarantee Clause mandated, in the later words of treatise writer St. George Tucker, that "every state which may be invaded must be protected by the united force of the confederacy." (289) The Clause had initially specified that the invasion must be "foreign," but the Convention subsequently removed this qualifier. (290) This constitutional commitment abrogated the Continental Congress's earlier refusal to intervene in Georgia's military struggles. (291) The language of the provision instead required federal military intercession if Indians attacked, even when the state had instigated the conflict.

But the greatest success for land-hungry states and speculators was the pervasive assumption throughout the Convention that the country would expand inexorably westward. The delegates regarded this prospect with attitudes ranging from anticipation to alarm. The southern states consistently favored admitting new western states on principles of equality. (292) By contrast, some of the northern states viewed the "rage for emigration ... to the Western Country" with trepidation. (293) Western expansion, they believed, would be "suicide on the old States," (294) and they proposed various methods to restrain the West's political and economic power in the Union. (295) None passed. But even the Convention's most outspoken proponent of limiting western power, Pennsylvania delegate Gouverneur Morris, (296) did not intend to repeat the Proclamation of 1763 and attempt to halt western expansion altogether. (297) At the Convention, Morris acknowledged that such a move would be "impossible. …

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