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1783

IN SEARCH OF NATIONHOOD AT THE

FOUNDING

Jonathan Gienapp*

NTRODUCTION

At the American founding, the nation was an idea and, constitutionally

speaking, an immensely important one. Yet, it has been easy to ignore or

overlook. Sometimes its existence is taken for granted without much

additional reflection. The nation was simply proclaimed by the Declaration

of Independence and then realized through the war with Great Britain,

thereafter an undeniable reality.

Or, at other times, it has been assumed that

the American Revolution failed to produce a nation, at least not a real one

anyway.

Rather than creating a genuine nation-state, drawing on their

colonial past, the revolutionaries erected a confederacy of autonomous states,

held together by a “peace pact” or “federal treaty.”

By the terms of this

treaty, independent states confederated to project strength outward and

minimize interstate conflict without surrendering their essential sovereign

prerogatives.

While the impotent Confederation government managed

diplomacy, the real work of polity building that followed independence lay

with the states, which jealously guarded their corporate identities,

independent powers, and sovereign rights.

Even if the federal Constitution

* Assistant Professor of History, Stanford University. This Article was prepared for the

Symposium entitled The Federalist Constitution, hosted by the Fordham Law Review on

October 2, 2020, at Fordham University School of Law. For helpful feedback and suggestions,

I thank Jud Campbell, Martin Flaherty, Daniel J. Hulsebosch, Thomas Lee, Bernie Meyler,

John Mikhail, Jim Pfander, Richard Primus, and David Schwartz. For exceptional research

assistance, I thank Julia Milani.

1. On the Declaration of Independence as principally a statement of nationhood, see

generally D

AVID ARMITAGE, THE DECLARATION OF INDEPENDENCE: A GLOBAL HISTORY

(2007).

2. See D

AVID C. HENDRICKSON, PEACE PACT: THE LOST WORLD OF THE AMERICAN

FOUNDING ix–x, xiv, 257–58 (2003); Jack P. Greene, Colonial History and National History:

Reflections on a Continuing Problem, 64 W

M. & MARY Q. 235, 242–50 (2007); Peter S. Onuf,

A Declaration of Independence for Diplomatic Historians, 22 D

IPLOMATIC HIST. 71, 71–72,

79–83 (1998).

3. See generally H

ENDRICKSON, supra note 2; Max M. Edling, Peace Pact and Nation:

An International Interpretation of the Constitution of the United States, 240 P

AST & PRESENT

267 (2018).

4. See Edling, supra note 3, at 281–83; see also H

ENDRICKSON, supra note 2, at 24–29,

104–11, 125–26, 145–46; Greene, supra note 2, at 242–43; Onuf, supra note 2, at 72–73, 76–

78.

5. See J

ACK P. GREENE, PERIPHERIES AND CENTER: CONSTITUTIONAL DEVELOPMENT IN

THE

EXTENDED POLITIES OF THE BRITISH EMPIRE AND THE UNITED STATES, 1607–1788, at 172–

1784 FORDHAM LAW REVIEW [Vol. 89

of 1787 marked a remaking of the state-centered order, it did not

fundamentally change—nor seek to change—the original purpose or aims of

the original confederation.

The American states joined in a perpetual union

and empowered a central government to promote the common defense,

manage diplomacy, and regulate international trade but not to meddle in

domestic matters—those would remain firmly within the province of the

states, which is ultimately where most citizens’ true loyalties lay.

The early

United States, thus, more closely resembled a states system than a nation-

state.

Only much later would this conception of federal union give way to

the idea of a unitary American nation.

While no doubt many founding-era Americans viewed the Union in such

diffuse terms and while, practically speaking, the Union might well have

functioned in such a decentralized manner, we should not overlook why some

revolutionaries—especially those who would become leading

Federalists

—invested so much energy trying to establish the nation’s

80 (1986); MERRILL JENSEN, THE ARTICLES OF CONFEDERATION: AN INTERPRETATION OF THE

SOCIAL-CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION, 1774–1781, at 14–15,

109–10, 161–76, 239–45 (1970);

GORDON S. WOOD, THE CREATION OF THE AMERICAN

REPUBLIC 1776–1787, at 127–34, 355–59, 463–67 (2d ed. 1998).

6. Edling, supra note 3, at 284–91; see also HENDRICKSON, supra note 2, at xiv, 3–7,

242–48, 257–59; Anthony J. Bellia Jr. & Bradford R. Clark, The International Law Origins

of American Federalism, 120 C

OLUM. L. REV. 835, 857–71 (2020); Daniel H. Deudney, The

Philadelphian System: Sovereignty, Arms Control, and Balance of Power in the American

States-Union, Circa 1787–1861, 49 I

NT’L ORG. 191, 194–216 (1995); Greene, supra note 2,

at 243–45; Onuf, supra note 2, at 78–83; Robbie J. Totten, Security, Two Diplomacies, and

the Formation of the U.S. Constitution: Review, Interpretation, and New Directions for the

Study of the Early American Period, 36 D

IPLOMATIC HIST. 77, 77–80, 89–110 (2012); Michael

P. Zuckert, Federalism and the Founding: Toward a Reinterpretation of the Constitutional

Convention, 48 R

EV. POL. 166, 174–75 (1986). See generally AARON N. COLEMAN, THE

AMERICAN REVOLUTION, STATE SOVEREIGNTY, AND THE AMERICAN CONSTITUTIONAL

SETTLEMENT, 1765–1800 (2016); FORREST MCDONALD, STATES’ RIGHTS AND THE UNION:

IMPERIUM IN IMPERIO, 1776–1876 (2000); PETER ONUF & NICHOLAS ONUF, FEDERAL UNION,

MODERN WORLD: THE LAW OF NATIONS IN AN AGE OF REVOLUTIONS 1776–1814 (1993).

7. Edling, supra note 3, at 287. On the intellectual roots of American federalism, see

generally A

LISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010).

On the lack of national identity at the time of the founding, see G

REENE, supra note 5, at 157–

65; F

ORREST MCDONALD, E PLURIBUS UNUM: THE FORMATION OF THE AMERICAN REPUBLIC,

1776–1790, at 17–18 (2d ed. 1979); John M. Murrin, A Roof Without Walls: The Dilemma of

American National Identity, in B

EYOND CONFEDERATION: ORIGINS OF THE CONSTITUTION AND

AMERICAN NATIONAL IDENTITY 333 (Richard Beeman et al. eds., 1987).

8. See H

ENDRICKSON, supra note 2, at ix–xii; Deudney, supra note 6, at 194, 208–09,

222; Totten, supra note 6, at 79–80, 111, 113–14.

9. See H

ENDRICKSON, supra note 2, at 281–97.

10. In this Article, for convenience, I mostly use the terms “Federalist” and “nationalist”

interchangeably. At times, though, I hint at the ways in which they picked out distinct groups

of individuals at the founding. “Federalists” could describe both those who supported the

Constitution’s ratification and members of the nascent political party that took form over the

course of the subsequent decade that supported President George Washington’s administration

and Alexander Hamilton’s controversial financial plan. Some Federalists of the first variety,

such as James Madison, became leading opponents of the later Federalists. Most Federalists,

of either kind, were nationalists. But some were assuredly more committed to expansive

national power than were others, especially during ratification. When I use the term

“nationalists,” I do so to refer either to those individuals who championed increasing the power

of the national government prior to the Constitutional Convention (and thus, before the term

2021] IN SEARCH OF NATIONHOOD AT THE FOUNDING 1785

existence. Leading Federalists, many of whom played as significant a role

in creating the Constitution as anybody, fervently rejected the idea that the

Constitutional Convention had created a mere treaty. This was no modest

quibble over names or forms, either. The difference between the

Constitution, as they imagined it, and a treaty was vast and significant.

Constitutionally and legally speaking, few differences mattered more.

Federalists’ search for nationhood—as well as its implications and

consequences—thus deserves further attention. Understanding why they

conducted this intellectual work and how successfully they grounded their

claims in commonly held assumptions illuminates an obscured dimension of

founding-era constitutional thinking. It gives us new reason to emphasize

the importance of nationhood at the founding and to not be so quick to

assume that devolved federalism and localism were the shared commitments

of the day.

In various ways, scholars have already helped point us in this direction. A

recent wave of important work has called attention to the neglected

importance of early American nationhood and constitutional governance.

Some have stressed that the ostensibly weak national government was

actually far stronger and more capable than previously assumed.

Others

have shown how, following ratification of the Constitution, state and federal

centralization were not at odds but worked in tandem, as national authority

helped states concentrate their power.

Still others have demonstrated

powerfully how Federalists’ pursuit of international recognition led them to

emphasize the legal foundation of nationhood.

What also deserves

Federalist had emerged) or, alternatively, to those Federalists who most energetically

championed a powerful national government. See STANLEY ELKINS & ERIC MCKITRICK, THE

AGE OF FEDERALISM: THE EARLY AMERICAN REPUBLIC, 1788–1800, at 21–24 (1993)

(discussing the differences between early and later Federalism). See generally David M.

Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the

Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U.

L. REV. 932 (2010)

(describing how leading Federalists at this time were strong nationalists).

11. For a comprehensive overview, see generally Gautham Rao, The New Historiography

of the Early Federal Government: Institutions, Contexts, and the Imperial State, 77 W

M. &

MARY Q. 97 (2020).

12. See generally G

REGORY ABLAVSKY, FEDERAL GROUND: GOVERNING PROPERTY AND

VIOLENCE IN THE FIRST U.S. TERRITORIES (2021); BRIAN BALOGH, A GOVERNMENT OUT OF

SIGHT: THE MYSTERY OF NATIONAL AUTHORITY IN NINETEENTH-CENTURY AMERICA (2009);

AX M. EDLING, A HERCULES IN THE CRADLE: WAR, MONEY, AND THE AMERICAN STATE,

1783–1867 (2014); RICHARD R. JOHN, SPREADING THE NEWS: THE AMERICAN POSTAL SYSTEM

FROM

FRANKLIN TO MORSE (1995); JERRY L. MASHAW, CREATING THE ADMINISTRATIVE

CONSTITUTION: THE LOST ONE HUNDRED YEARS OF AMERICAN ADMINISTRATIVE LAW (2012);

AUTHAM RAO, NATIONAL DUTIES: CUSTOMS HOUSES AND THE MAKING OF THE AMERICAN

STATE (2016); LINDSAY SCHAKENBACH REGELE, MANUFACTURING ADVANTAGE: WAR, THE

STATE, AND THE ORIGINS OF AMERICAN INDUSTRY, 1776–1848 (2019); Andrew J. B. Fagal,

American Arms Manufacturing and the Onset of the War of 1812, 87 N

EW ENG. Q. 526 (2014);

Richard R. John, Governmental Institutions as Agents of Change: Rethinking American

Political Development in the Early Republic, 1787–1835, 11 S

TUD. AM. POL. DEV. 347 (1997).

13. See generally Gregory Ablavsky, Empire States: The Coming of Dual Federalism,

128 Y

ALE L.J. 1792 (2019).

14. See generally ELIGA H. GOULD, AMONG THE POWERS OF THE EARTH: THE AMERICAN

REVOLUTION AND THE MAKING OF A NEW WORLD EMPIRE (2012); Golove & Hulsebosch, supra

1786 FORDHAM LAW REVIEW [Vol. 89

attention is how defenses of national power were imagined and justified at

the founding. On this front, several scholars have begun to underscore key

facets of early nationalist constitutionalism that have long been downplayed

or ignored, facets that point to a robust and ascendant Federalist Constitution

in the nation’s earliest years that seriously disrupts the enduring portrait of

the period’s constitutionalism.

To further flesh out this Federalist Constitution that recent scholarship has

begun to bring back into view, I focus on one particularly vital argument that

founding-era nationalists relied on: that the existence of a national social

contract entitled the national government to expansive power. Leading

politicians and jurists, such as Alexander Hamilton, James Wilson, John Jay,

John Adams, Gouverneur Morris, Rufus King, and Fisher Ames, made

creative use of social contract theory, tapping into what was, at the time, a

ubiquitous intellectual resource—that otherwise provided a pervasive

framework for understanding the nature of political society and the

foundations of constitutional authority—and turning it to their advantage.

While scholars of the founding have long attended to the place of social

contract theory in revolutionary American political and constitutional

discourse, they have almost always interpreted it as a mechanism for

note 10; Daniel J. Hulsebosch, Being Seen Like a State: How Americans (and Britons) Built

the Constitutional Infrastructure of a Developing Nation, 59 W

M. & MARY L. REV. 1239

(2018); Daniel J. Hulsebosch, The Revolutionary Portfolio: Constitution-Making and the

Wider World in the American Revolution, 47 S

UFFOLK U. L. REV. 759 (2014).

15. See generally, e.g., Jack M. Balkin, Commerce, 109 M

ICH. L. REV 1 (2010); Jonathan

Gienapp, The Myth of the Constitutional Given: Enumeration and National Power at the

Founding, 69 A

M. U. L. REV. F. 183 (2020) [hereinafter Gienapp, The Myth of the

Constitutional Given]; Jonathan Gienapp, National Power and the Presidency: Rival Forms

of Federalist Constitutionalism at the Founding, in P

OLITICAL THOUGHT AND THE ORIGINS OF

THE

AMERICAN PRESIDENCY 127 (Ben Lowe ed. 2021) [hereinafter Gienapp, National Power

and the Presidency]; Calvin H. Johnson, The Dubious Enumerated Power Doctrine, 22

ONST. COMMENT. 25 (2005); Robert J. Kaczorowski, Inherent National Sovereignty

Constitutionalism: An Original Understanding of the U.S. Constitution, 101 M

INN. L. REV.

699 (2016); John Mikhail, The Constitution and the Philosophy of Language: Entailment,

Implicature, and Implied Powers, 101 V

A. L. REV. 1063 (2015) [hereinafter Mikhail, The

Constitution and the Philosophy of Language]; John Mikhail, The Necessary and Proper

Clauses, 102 G

EO. L.J. 1045 (2014) [hereinafter Mikhail, The Necessary and Proper Clauses];

Richard Primus, Herein of “Herein Granted”: Why Article I’s Vesting Clause Does Not

Support the Doctrine of Enumerated Powers, 35 C

ONST. COMMENT. 301 (2020); Richard

Primus, “The Essential Characteristic”: Enumerated Powers and the Bank of the United

States, 117 M

ICH. L. REV. 415 (2018); Richard Primus, The Limits of Enumeration, 124 YALE

L.J. 576 (2014); Richard Primus, Why Enumeration Matters, 115 MICH. L. REV. 1 (2016);

Robert J. Reinstein, The Aggregate and Implied Powers of the United States, 69 A

M. U. L.

REV. 3 (2019); David S. Schwartz, A Question Perpetually Arising: Implied Powers, Capable

Federalism, and the Limits of Enumerationism, 59 A

RIZ. L. REV. 573 (2017); David S.

Schwartz, McCulloch v. Maryland and the Incoherence of Enumerationism, 19 G

EO. J.L. &

PUB. POL’Y (forthcoming 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract

_id=3535750 [https://perma.cc/VV45-SSFZ]; David S. Schwartz, Recovering the Lost

General Welfare Clause (Univ. of Wis. L. Sch. Legal Stud. Rsch. Paper Series No. 1603,

2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3671883 [https://perma.cc/LAB2

-NUF6].

2021] IN SEARCH OF NATIONHOOD AT THE FOUNDING 1787

protecting rights and limiting government power.

Only rarely have

scholars considered how social contract thinking helped expand

governmental authority based on what it revealed about the interconnected

implications of sovereignty, polity formation, and constitutional power. Yet,

in the hands of early nationalists, this was one of social contract theory’s most

vital roles.

At the founding, Federalists contended that there was a tight, inextricable

relationship between the nature of the federal union and the character and

scope of governmental power—that the latter could not be understood apart

from the former. If, as a matter of legal fact, the United States was a nation,

then its government enjoyed a credible claim to more power than might

otherwise be assumed. If, however, the United States was not a nation, then

its government necessarily was entitled to less power. What the Constitution

permitted was determined, to a meaningful extent, by the nature of the

underlying polity. In the early years of the republic, to an extent that is rarely

appreciated, this argument held a tight grip on constitutional thinking. Not

only did nationalists champion the idea but, arguably even more importantly,

their opponents fully recognized its power. Precisely because Federalists

built their account of national authority on such an authoritative foundation,

and precisely because their starting point enjoyed such broad resonance

across ideological divisions, their arguments had a clear impact on their

intellectual and political rivals. These opponents recognized that defeating

the Federalist account of national power meant undermining their attendant

account of the social contract. Not everybody agreed with the Federalists

that the United States was a nation, but most everybody agreed on why that

fact was constitutionally important.

This dimension of Federalist constitutionalism and the ways in which it

resonated in the early republic are curiously neglected. We know a great deal

about debates during this period over nationhood, the contested nature of the

federal union, social contract theory, and popular sovereignty. We know far

less, however, about the ways in which each of these debates was

interconnected—how a particular account of the national social contract

bolstered a broad conception of national power. The burden of what follows

is to bring these connections and the once pervasive, if now less familiar,

kinds of constitutional arguments that they yielded back into focus in order

to underscore their original significance. They illuminate a now forgotten

16. See generally, e.g., SCOTT DOUGLAS GERBER, TO SECURE THESE RIGHTS: THE

DECLARATION OF INDEPENDENCE AND CONSTITUTIONAL INTERPRETATION (1995); THOMAS L.

PANGLE, THE SPIRIT OF MODERN REPUBLICANISM: THE MORAL VISION OF THE AMERICAN

FOUNDERS AND THE PHILOSOPHY OF LOCKE (1988); C. BRADLEY THOMPSON, AMERICA’S

REVOLUTIONARY MIND: A MORAL HISTORY OF THE AMERICAN REVOLUTION AND THE

DECLARATION THAT DEFINED IT (2019); THOMAS G. WEST, THE POLITICAL THEORY OF THE

AMERICAN FOUNDING: NATURAL RIGHTS, PUBLIC POLICY, AND THE MORAL CONDITIONS OF

FREEDOM (2017); MICHAEL P. ZUCKERT, THE NATURAL RIGHTS REPUBLIC: STUDIES IN THE

FOUNDATION OF THE AMERICAN POLITICAL TRADITION (1996); Philip A. Hamburger, Natural

Rights, Natural Law, and American Constitutions, 102 Y

ALE L.J. 907 (1993).

1788 FORDHAM LAW REVIEW [Vol. 89

way of thinking about constitutionalism that was once inextricably

intertwined with the original Constitution.

This Article proceeds as follows. Part I examines social contract theory,

considering the ways in which it is often misunderstood. Rather than simply

placing limits on government power, at the founding, this form of thinking

helped empower government to act in the general welfare. Parts II and III

discuss how founding-era nationalists leveraged social contract theory to

support their expansive vision of national power up through the drafting of

the federal Constitution. Part IV investigates how, during ratification,

Federalists and anti-Federalists debated what the proposed Constitution

implied about the nature of the federal union. Part V demonstrates how

readily Federalists, following ratification, claimed that debates over national

power under the Constitution ultimately turned on the character of the United

States itself. Part VI shows how Republicans, despite sharply disagreeing

with Federalists’ conclusions about national power, nonetheless agreed with

their guiding premise: that the national government’s authority was

determined by the kind of polity it represented. Ultimately, whether or not

the United States was a nation made a decisive difference. From the

standpoint of constitutionalism, Federalists effectively argued that the scope

of the national government’s power was a function of the kind of union it

governed. And remarkably, to an extent seldom appreciated, their opponents

agreed. The concept of nationhood was central to founding-era constitutional

thought and, if we seek to understand the original Constitution on its own

terms, we must understand why this was.

SOCIAL CONTRACT THEORY AT THE FOUNDING

Federalists’ interest in nationhood owed a great deal to how they thought

about polity formation and the origins of the social compact—the underlying

foundations of the constitutional regime. It was here that social contract

theory played such a foundational role in their arguments.

Understanding how requires first appreciating what prior study of this

subject has missed. There is, of course, nothing novel in claiming that social

contract thinking—which was utterly ubiquitous in early modern European

political theory—informed Revolutionary-era American political thought.

Yet, virtually all attention that has been paid to this kind of founding-era

thinking has focused on the protection of individual rights or the cordoning

off of certain spheres of liberty and thus on limitations on government

power.

Social contract theory was built on a thought experiment designed

to understand why human beings would have left a hypothetical state of

nature, in which they enjoyed natural liberty, for the protections of

government.

People would have done so, students of this theory often

17. See, e.g., supra note 16 and accompanying text.

18. See supra note 16 and accompanying text.

19. Jud Campbell, Republicanism and Natural Rights at the Founding, 32 C

ONST.

COMMENT. 85, 87–88 (2017) (reviewing RANDY E. BARNETT, OUR REPUBLICAN

CONSTITUTION: SECURING THE LIBERTY AND SOVEREIGNTY OF WE THE PEOPLE 31–82 (2016)).

2021] IN SEARCH OF NATIONHOOD AT THE FOUNDING 1789

emphasize, to ensure protection of their individual natural rights.

Government, therefore, is best understood as a contract predicated on

consent—a bargain made to sacrifice some liberty to ensure that the

remainder is safely guarded.

By these terms, government power is

inherently constrained and limited, and its exercise is to be watched with

relentless suspicion. In short, on this view, social contract theory offered an

account of limited government. Hardly any attention, however, has been

given to the ways in which, in the hands of certain founding-era Americans,

social contract thinking served to expand government power.

This is an

oversight that both misses the thrust of social contract theory at the founding

and the far-reaching uses to which some leading founders put it.

Analyses of founding-era social contract thinking have often narrowly

focused on rights and limitations to government power because, too often,

they are infected with anachronism. They tend to be tacitly guided by the

modern libertarian presumption that liberty and state power are inherently at

odds—locked in a zero-sum game.

Where government acts, liberty is

threatened, meaning the state should strive to do the minimum necessary to

maintain order and the rule of law without interfering with the retained rights

of consenting citizens—who only would have parted with certain kinds of

natural liberty to secure the reliance and consistency that regular legal order

alone could provide.

This is why the founding generation purportedly

conceived of rights as trumps against the government.

No matter how

popular these assumptions are today or how frequently they are imposed on

the founding, they would have made little sense in the eighteenth century.

At that time, power and liberty were not believed to be inherently at odds.

To be sure, it was widely assumed that liberty was fragile and always under

threat and that unchecked, tyrannical power was always quick to destroy it.

However, one protected liberty not by disabling government power but rather

by empowering government in the right kind of way. This meant, above all,

constructing representative institutions that, by embodying the people’s will,

protected the people’s liberty.

There was, in fact, no solution to the

problem of liberty other than robust political institutions.

20. See, e.g., ZUCKERT, supra note 16, at 24–31.

21. Id. at 27–29.

22. Jud Campbell’s work, which has done so much to illuminate social contract thinking

at the founding, is an important exception. Even so, Campbell has primarily focused on the

nature of rights at the founding and only gestured toward the ways in which some founders

harnessed social contract thinking to defend the robust exercise of government power. For

one of these brief forays, see Campbell, supra note 19, at 101–03, 109–11. My argument is

indebted to his analysis of eighteenth-century social contract thinking.

23. See B

ARNETT, supra note 19, at 31–82; RICHARD A. EPSTEIN, THE CLASSICAL LIBERAL

CONSTITUTION: THE UNCERTAIN QUEST FOR LIMITED GOVERNMENT 3–6, 17–25 (2014); Philip

Hamburger, The Inversion of Rights and Power, 63

BUFF. L. REV. 731, 738–52 (2015).

24. See B

ARNETT, supra note 19, at 31–82; EPSTEIN, supra note 23, at 3–6, 17–25.

25. Hamburger, supra note 23, at 752.

26. See generally B

ERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN

REVOLUTION 55–93 (enlarged ed. 1992).

27. Jonathan Gienapp, Response, The Foreign Founding: Rights, Fixity, and the Original

Constitution, 97 T

EX. L. REV. ONLINE 115, 118–26 (2019). For the deeper colonial roots of

1790 FORDHAM LAW REVIEW [Vol. 89

In this regard, our familiar distinctions between individual and collective

liberty often had little meaning at the founding. Residents of the eighteenth

century surely would have recognized how those categories were distinct, but

they tended to think of them in compatible terms. One was not protected at

the expense or denial of the other; instead, protecting one often ensured the

protection of the other.

Individual and collective rights to a free press and

jury trial and to speak freely, assemble, and bear arms were most effectively

secured by devising and empowering popular institutions that promoted, all

at once, the people’s liberty, welfare, and happiness.

The crucial

distinction was not between government and liberty but between

representative government (which protected liberty) and unrepresentative

government (which did not). “Representation,” proclaimed Moses Mather

on the eve of the American Revolution, “is the feet upon which a free

government stands.”

Liberty was not the absence of coercion but a state of

being, predicated on living in a free state and, thus, the conditions of that

state being free.

Jud Campbell has compellingly demonstrated how

founding-era Americans reconciled their commitment to retained

fundamental rights and the power of republican governments to regulate

those rights in the interest of the public good.

The latter did not violate

commitment to the former; rather, it embodied the very essence of freedom.

Alexander Hamilton thus described the “great principle of the social

compact” to be “that the chief object of government is to protect the rights of

individuals by the united strength of the community.”

The primary reason

one studied natural rights and probed the origins of the social compact was

to identify the kind of government that could act most credibly in the public

interest.

As the town of Boston proclaimed in 1772, “[t]he natural Liberty

of Man, by entering into Society, is abridg’d or restrain’d so far only as is

necessary for the great End of Society, the best Good of the Whole.”

this thinking, see generally BARBARA CLARK SMITH, THE FREEDOMS WE LOST: CONSENT AND

RESISTANCE IN REVOLUTIONARY AMERICA (2010).

28. Gienapp, supra note 27, at 118–26.

29. Jud Campbell, Natural Rights and the First Amendment, 127 Y

ALE L.J. 246, 265–66,

272–87, 304–21 (2017).

30. M

OSES MATHER, AMERICA’S APPEAL TO THE IMPARTIAL WORLD 70 (Hartford,

Ebenezer Watson 1775).

31. Gienapp, supra note 27, at 125–26. See generally Q

UENTIN SKINNER, LIBERTY BEFORE

LIBERALISM (1998) (recounting the development of this theory in seventeenth-century

England and exploring its impact on the early United States).

32. Campbell, supra note 29, at 265–66, 272–87, 304–21; Campbell, supra note 19, at

87–99, 111–12; Jud Campbell, The Invention of First Amendment Federalism, 97 T

EX. L. REV.

517, 525–29 (2019); Jud Campbell, Fundamental Rights at the American Founding 7–9 (Dec.

9, 2020) (unpublished manuscript) (on file with author).

33. J

OHN PHILLIP REID, THE ANCIENT CONSTITUTION AND THE ORIGINS OF ANGLO-

MERICAN LIBERTY 38–39 (2005).

34. New York Assembly. Remarks on an Act Acknowledging the Independence of

Vermont, D

AILY ADVERTISER (N.Y.), Apr. 5, 1787, reprinted in 4 THE PAPERS OF ALEXANDER

HAMILTON 126, 126 (Harold C. Syrett & Jacob E. Cooke eds., 1962).

35. See id.

36. T

HE VOTES AND PROCEEDINGS OF THE FREEHOLDERS AND OTHER INHABITANTS OF THE

TOWN OF BOSTON 4–5 (Boston Edes & Gill 1772) [hereinafter, VOTES AND PROCEEDINGS].

2021] IN SEARCH OF NATIONHOOD AT THE FOUNDING 1791

Given this unfamiliar understanding of the relationship between liberty

and power, social contract theory—although squarely focused on the

retention and protection of liberty and used to understand the origins of

political communities with just this aim in mind—had no trouble reconciling

what we would think of as limited and expansive government. Government

was limited through a variety of means, but none more important than

representation.

A government that was representative, and thus was

limited, could claim the power necessary to advance the public good—and,

indeed, often had a duty to do so.

In the context of the American founding,

social contract theory was, therefore, not simply or even primarily

preoccupied with curbing government power but rather focused on offering

a basis for the legitimate exercise of government power, thus realizing the

fundamental aim of republican political organization.

Because liberty was so entangled with representation, it mattered

enormously for whom the government spoke—whom it could claim to

embody and mirror.

Determining whom the government represented, and

thus could act in the name of to pursue the public good, invited consideration

of how the public related to its government. Here, social contract theory,

given how it conceived of the origins and nature of the political community,

provided potent answers.

Social contract theory furnished a conceptual framework for thinking

about the basis of governance. It imagined a two-step process in which

individuals formed, first, a social compact (a body politic) and then second,

a system of government (a constitution).

“The first ‘collection’ of

authority,” John Adams explained, was an “agreement” among individuals

“to form themselves into a nation, people, community, or body politic.”

Alexander Hamilton, in his 1775 pamphlet, The Farmer Refuted, claimed

similarly that “the origin of all civil government, justly established, must be

a voluntary compact.”

“When Men enter into Society,” declared the town

of Boston shortly before Americans declared independence, “by voluntary

37. See Campbell, supra note 19, at 96–98; Gienapp, supra note 27, at 125–26.

38. On the importance of the public good at the founding, see J

AMES T. KLOPPENBERG,

TOWARD DEMOCRACY: THE STRUGGLE FOR SELF-RULE IN EUROPEAN AND AMERICAN

THOUGHT 337–38, 349–55, 428–33 (2016); WOOD, supra note 5, at 53–65, 179–80.

39. Campbell, supra note 19, at 87–99, 111–12; Gienapp, supra note 27, at 118–26.

40. On the logic of political representation at the founding and how it often emphasized

the idea of mirroring or re-presenting the people at-large, see E

RIC NELSON, THE ROYALIST

REVOLUTION: MONARCHY AND THE AMERICAN FOUNDING 72–75, 78–83, 209–10 (2014); ERIC

SLAUTER, THE STATE AS A WORK OF ART: THE CULTURAL ORIGINS OF THE CONSTITUTION 123–

67 (2009). For characteristic statements from the founding, see J

OHN ADAMS, THOUGHTS ON

GOVERNMENT: APPLICABLE TO THE PRESENT STATE OF THE AMERICAN COLONIES 9–10

(Philadelphia, John Dunlap 1776); Brutus

III, N.Y.J., Nov. 15, 1787, reprinted in 14 THE

DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: COMMENTARIES ON THE

CONSTITUTION 119, 120–22 (John P. Kaminski et al. eds., 1983).

41. Campbell, supra note 19, at 87–90; Donald S. Lutz, From Covenant to Constitution

in American Political Thought, 10 P

UBLIUS 101, 103–06 (1980).

42. J

OHN ADAMS, A DEFENCE OF THE CONSTITUTIONS OF GOVERNMENT OF THE UNITED

STATES OF AMERICA 6 (Philadelphia, Hall & Sellers 1787).

43. A

LEXANDER HAMILTON, THE FARMER REFUTED 6 (New York, James Rivington 1775).

1792 FORDHAM LAW REVIEW [Vol. 89

Consent . . . [they] form an . . . original Compact.”

The Massachusetts

Constitution explicitly begins from this premise as well. Its preamble reads:

“The body-politic is formed by a voluntary association of individuals: It is a

social compact, by which the whole people covenants with each citizen, and

each citizen with the whole people, that all shall be governed by certain laws

for the common good.”

The social compact created a polity, the members

of which then decided on how they would be governed.

Step two followed. “The society being formed,” James Wilson elaborated

in his Lectures on Law, next came “the formation of [a] government.”

The

powers and obligations of the latter flowed from the constitution of the

former, because the body politic both established the government to act in its

name and retained sovereignty following that delegation.

“When the

society was formed,” Wilson went on, “it possessed jointly all the previously

separate and independent powers and rights of the individuals who formed

it,” but it also obtained “all the other powers and rights, which result from

the social union.”

The “aggregate of . . . powers” that “compose[d] the

sovereignty of the society or nation”

was thus determined, in significant

measure, by the kind of union that had been formed.

Different social

compacts produced different sums of power that were delegated, in turn, to

the governments presiding over them.

A government’s power thus

reflected the nature of the sovereign agent that had given life to it.

Throughout the eighteenth century, different writers and commentators

reached different conclusions about the nature of the social contract, how its

conceptual pieces fit together, and its implications for political authority.

But, at the risk of oversimplification, most everybody at the founding agreed

on the outlines of the framework just sketched.

And in the hands of

nationalists in the 1780s—those who soon became Federalists and

spearheaded the movement for federal constitutional reform—this

framework held the potential for a dramatic expansion of national power.

44. VOTES AND PROCEEDINGS, supra note 36, at 3.

45. M

ASS. CONST. pmbl.

46. See id.

47. J

AMES WILSON, Lectures on Law, Part 2, Chapter V: Of Municipal Law, reprinted in

1 C

OLLECTED WORKS OF JAMES WILSON 549, 554 (Kermit L. Hall & Mark David Hall eds.,

2007).

48. See id. at 553–54.

49. Id. at 556.

50. Id.

51. See id.

52. See id.

53. Gienapp, The Myth of the Constitutional Given, supra note 15, at 201; Jud Campbell,

The Natures of Constitutional Histories, B

ALKINIZATION (May 1, 2020), https://balkin.

blogspot.com/2020/05/the-natures-of-constitutional-histories.html [https://perma.cc/H2FM-

242V].

54. See supra notes 41–53 and accompanying text.

2021] IN SEARCH OF NATIONHOOD AT THE FOUNDING 1793

II.

A NATIONAL PEOPLE, A NATIONAL POLITY: FINDING THE NATION

With social contract theory firmly in mind, leading nationalists would

come to argue that the full scope of national power under the Constitution

turned on sovereignty and union: who had authorized the Constitution and

for what kind of polity did that agent speak? The nature of the polity and the

meaning of the Constitution were inextricably entwined. Without

understanding the social compact (step one in social contract theory), it was

impossible to interpret the resulting constitution (step two). Depending on

the character of the union, the exact same constitutional provisions might

yield a different ambit of constitutional power. It was thus impossible to

know what the Constitution declared—and therefore licensed or prohibited—

without first understanding the nature of the federal union for which it spoke.

In the context of the United States, sorting out the character of the polity

and its attendant sovereignty was complicated by the federal nature of the

Union. There was wide agreement that the people were, in some manner,

sovereign. During the revolutionary struggle against Britain, Americans had

rallied around the concept of popular sovereignty; and then, during their

initial efforts to construct an independent constitutional order, they had

deepened and refined their understanding of it.

But, even as a matter of

constitutional theory, if it was clear that the people wielded sovereign

authority, in the context of authorizing a national government to preside over

the nascent American Union, it was much less clear which people delegated

the relevant authority: the people of the United States or the people of the

separate states. The answer determined whether the body politic was

rightfully understood to be a union of sovereign states, a nation, or something

in between. For those both committed and opposed to a stronger national

government, these were foundational questions—the ones that needed to be

answered in order to comprehend the full scope of the federal government’s

power: which kind of sovereign people had constituted the government and

which kind of polity did the Constitution speak for? Many Federalists would

come to defend an expansive vision of national power based on the belief

that the Constitution had been established by a national people who had

previously formed a national polity.

Nationalists began gesturing toward these conclusions throughout the

1780s as they decried and lamented the feeble state of the Union—

particularly the impotent state of the national government that struggled to

govern the country or address any of its mounting problems.

From these

complaints emerged not just calls for sweeping reform (which would

55. See WOOD, supra note 5, at 344–89, 445–46, 462–63 (offering the canonical account

of this concept). Of course, the accepted notion of the “people” at the time usually referred to

white men.

56. Gienapp, The Myth of the Constitutional Given, supra note 15, at 193–94, 201–04.

57. See generally M

ICHAEL J. KLARMAN, THE FRAMERS’ COUP: THE MAKING OF THE

UNITED STATES CONSTITUTION 11–125 (2016) (discussing the problems of the 1780s and the

criticisms of the Confederation government that they inspired); JACK N. RAKOVE, ORIGINAL

MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 23–34 (1996) (same).

1794 FORDHAM LAW REVIEW [Vol. 89

eventually win converts toward the end of the decade)

but also creative

accounts of the nature of union, ones that claimed that the United States had

been born a nation.

In that regard, as soon-to-be Federalists at once called

for significant constitutional change, they also emphasized what they

believed already to be the case—that which demanded recognition and

acceptance, rather than invention: the idea that, through the act of

independence, the American people had formed a national social compact.

A genuine national government was needed not only to solve the problems

crippling the Union but also to affirm the kind of political community that

the Revolution had brought into existence: “an

INDEPENDENT NATION.”

As one of the earliest critics of the Confederation government and boldest

champions of national power, Alexander Hamilton was among the first to

suggest that, no matter the “want of power in Congress,”

the “want of

method and energy in the administration,”

or the myriad other ways in

which the Confederation was ill structured,

as a point of fact, the United

States government had “done many of the highest acts of sovereignty.”

Among the most vital of these—beyond declaring war, establishing an army

and navy, issuing money, making alliances with foreign powers, and forging

a peace treaty—was the “declaration of independence”—the act of deciding

that British Americans were an independent nation.

These feats of high

sovereignty implied that the national government had been vested, from the

58. See RAKOVE, supra note 57, at 23–34.

59. See, e.g., J

AMES WILSON, CONSIDERATIONS ON THE BANK OF NORTH-AMERICA 10

(Phila., Hall & Sellers 1785) (stating that, rather than enumerating the colonies separately, the

Declaration of Independence declared the colonies were “UNITED”).

60. As will be explained, Jeffersonian Republicans later developed their own theory of

the legal basis of the Union—a theory that they called “compact theory.” See infra Part VI.

Although the terminology can be confusing, following the concepts and vocabulary of the

period is important. Americans of all ideological stripes, and especially Federalists, frequently

referred to the idea of a social compact by way of social contract theory. For a deeper

explanation and comparison of social contract theory to compact theory, see infra note 187

and accompanying text.

61. Alexander Hamilton, The Continentalist No. I, N.Y.

PACKET & AM. ADVERTISER, July

12, 1781, reprinted in 2 T

HE PAPERS OF ALEXANDER HAMILTON, supra note 34, at 649, 649.

62. Id. at 650 (emphasis omitted); Letter from Alexander Hamilton to James Duane (Sept.

3, 1780), in 2 T

HE PAPERS OF ALEXANDER HAMILTON, supra note 34, at 400, 401; see also

Alexander Hamilton, The Continentalist No. III, N.Y.

PACKET & AM. ADVERTISER, Aug. 9,

1781, reprinted in 2 T

HE PAPERS OF ALEXANDER HAMILTON, supra note 34, at 660, 665;

Alexander Hamilton, The Continentalist No. V, N.Y.

PACKET & AM. ADVERTISER, Apr. 18,

1782, reprinted in 3 T

HE PAPERS OF ALEXANDER HAMILTON, supra note 34, at 75, 75–76;

Alexander Hamilton, The Continentalist No. VI, N.Y.

PACKET & AM. ADVERTISER, July 4,

1782, reprinted in 3

THE PAPERS OF ALEXANDER HAMILTON, supra note 34, at 99, 99–104

[hereinafter Hamilton, The Continentalist No. VI]. See generally Alexander Hamilton, The

Continentalist No. IV, N.Y.

PACKET & AM. ADVERTISER, Aug. 30, 1781, reprinted in 2 THE

PAPERS OF ALEXANDER HAMILTON, supra note 34, at 669.

63. Letter from Alexander Hamilton to James Duane, supra note 62, at 404.

64. Id. at 402–06; see also Hamilton, supra note 61, at 649–52; Hamilton, The

Continentalist No. VI, supra note 62, at 105–06.

65. Letter from Alexander Hamilton to James Duane, supra note 62, at 401.

66. Id.; see also A

LEXANDER HAMILTON, A LETTER FROM PHOCION TO THE CONSIDERATE

CITIZENS OF NEW YORK ON THE POLITICS OF THE DAY (New York, Samuel Loudon 1784),

reprinted in 3

THE PAPERS OF ALEXANDER HAMILTON, supra note 34, at 483, 489–92.

2021] IN SEARCH OF NATIONHOOD AT THE FOUNDING 1795

beginning, with many (if not, perhaps, all) inherent national powers.

While, for political reasons, it was surely necessary to call a general

convention to redraw the formal outlines of national power, Hamilton, the

prodigiously talented New Yorker, claimed that it would be every bit as

legitimate for Congress to merely “resum[e] and exercis[e] the discretionary

powers . . . originally vested in them.”

As the decade unfolded, Hamilton broadened his argument. Primarily in

the context of defending former loyalists against what he took to be punitive

postwar laws, he emphasized the obligations that the law of nations had

placed on the United States.

Because, in his judgment, New York’s anti-

loyalist legislation violated the peace treaty that Congress had negotiated

with Britain and other European nations, the legislation violated the law of

nations.

In making these arguments, Hamilton was further stressing the

essential ways in which the United States had behaved as a sovereign nation

and assumed the responsibilities of one. In claiming that the separate states

were obligated to comply with the law of nations as well as the nation’s treaty

obligations, Hamilton underscored the legal existence of the nation.

Hamilton offered a conspicuous account of incipient nationhood and the

exercise of its concomitant power. But even if he pointed to the nation’s

legal existence, he had not quite offered an account of that nation’s origins

or political foundations. That task would fall to other nationalist-minded

champions of constitutional reform.

James Wilson, the Pennsylvania lawyer and adroit constitutional thinker,

helped fill in the gaps that Hamilton had left—all while offering the most

penetrating account of American nationhood and power advanced in the

years prior to the Constitutional Convention.

Like Hamilton, Wilson had

served in Congress and helped lead the nationalist charge from its earliest

days.

Also like Hamilton, he simultaneously favored constitutional change

on the ground that the Confederation government was much too weak, while

defending that same government’s unrecognized inherent powers.

Unlike

Hamilton, however, he tethered a recognition of nationhood and inherent

67. Letter from Alexander Hamilton to James Duane, supra note 62, at 401–02.

68. Id. at 407.

69. Daniel J. Hulsebosch, A Discrete and Cosmopolitan Minority: The Loyalists, the

Atlantic World, and the Origins of Judicial Review, 81 C

HI.-KENT L. REV. 825, 844–46 (2006)

(describing Hamilton’s legal work defending a loyalist in Rutgers v. Waddington). For a

discussion of the broader phenomenon of state legislatures passing punitive laws against

former loyalists, see generally id.

70. See 1 T

HE LAW PRACTICE OF ALEXANDER HAMILTON: DOCUMENTS AND COMMENTARY

356 (Julius Goebel Jr. ed., 1964) (excerpting notes Hamilton made to prepare for his client’s

defense in Rutgers v. Waddington).

71. See Hulsebosch, supra note 69, at 844–46. On nationalists’ commitment to the law

of nations at this time, see generally Golove & Hulsebosch, supra note 10.

72. On Wilson’s constitutionalism, see generally Robert Green McCloskey, Introduction

to 1 J

AMES WILSON, THE WORKS OF JAMES WILSON 1 (Robert Green McCloskey ed., 1967).

73. On the alliance nationalists forged beginning in the early 1780s, see J

ACK N. RAKOVE,

THE BEGINNINGS OF NATIONAL POLITICS: AN INTERPRETIVE HISTORY OF THE CONTINENTAL

CONGRESS 183–84, 293–94, 307, 319–26 (1979).

74. See Gienapp, National Power and the Presidency, supra note 15, at 133–34, 144–45.

1796 FORDHAM LAW REVIEW [Vol. 89

national power to an account of the nation’s underlying social compact,

explaining more precisely why an American nation existed and how that fact

impacted the resulting delegation of authority to that nation’s government.

Wilson did so in defense of the national government’s authority under the

Articles of Confederation to establish the nation’s first national bank: the

Bank of North America.

The Articles had both failed to enumerate the

relevant power and also made clear that the state governments retained all

powers “not . . . expressly delegated.”

Nevertheless, Wilson explained, the

inquiry needed to begin not with the Articles but rather with the Declaration

of Independence—which, he contended, had established not thirteen

autonomous states but a single nation, and with it, a national people.

Consequently, the government presiding over that nation was the creation,

not of the people of the states but of the sovereign people of the United States.

This meant that the national government derived its powers from two

separate sources: some were expressly delegated by the states through the

Articles, but others “result[ed] from the union of the whole.”

“The United

States,” Wilson contended, “have general rights, general powers, and

general obligations, not derived from any particular States, nor from all the

particular States . . . but resulting from the union of the whole.”

Any power

that was “general” in character—that which the separate states could not

competently exercise on their own—was delegated independent of the

states.

Upon separating from Great Britain, those powers were assigned to

the Union as a whole and the subsequent “confederation,” Wilson stressed,

did not “weaken or abridge the powers and rights, to which the United States

were previously entitled.”

These broad powers did not amount to national

plenary power—many significant powers were reserved to the states.

But

there was considerable space between a national government vested with

plenary authority and one that was limited to formally delegated powers.

was easy to reject the latter without embracing the former, and Wilson

assumed, drawing on social contract theory, that a credible account of

national power rested somewhere between those poles.

Wilson had established, to his satisfaction, a basis for a national social

compact. Independence had created a national people, not merely a

collection of distinct peoples in distinct states. The Declaration of

Independence itself—by speaking on behalf of a plural noun, “these U

NITED

75. See Gienapp, The Myth of the Constitutional Given, supra note 15, at 201–02.

76. See generally W

ILSON, supra note 59.

77. A

RTICLES OF CONFEDERATION of 1781, art. II.

78. W

ILSON, supra note 59, at 10.

79. Id.

80. Id.

81. Id.

82. Id.

83. See id. at 9.

84. See id. at 10.

85. Id. at 9–11.

2021] IN SEARCH OF NATIONHOOD AT THE FOUNDING 1797

colonies”—recognized that broader collective.

Because a national people

and a national polity preceded the Articles of Confederation, the

Confederation government derived its authority every bit as much from the

nation that it governed as it did from the states that delegated particular

powers to it.

“To many purposes,” Wilson wrote, “the United States are to

be considered as one undivided, independent nation; and as possessed of all

the rights, and powers, and properties, by the law of nations incident to

such.”

The nature of the Union dictated the powers of government, so for

Wilson, and nationalists to follow,

it made all the difference in the world

that the nation had come first.

III.

CONSTITUTING A NATION: THE CONSTITUTIONAL CONVENTION

This form of nationalist thinking, which assumed that a national social

contract had been forged through the act of independence, emerged swiftly

and potently at the Constitutional Convention. In an early debate with Luther

Martin over the nature of the Union, Wilson brandished the Declaration

and quoted from it at length (something that was highly unusual for the

time),

confident that it confirmed that “the United Colonies” were

originally “independent, not Individually but Unitedly.”

Independence had

brought a national people into being and with it a national social compact.

The task in Philadelphia was to devise a new constitution for that particular

compact. Hamilton immediately “assented to the doctrine of Mr. Wilson,”

denying (no doubt based on his own earlier reflections on the subject) “the

doctrine that the States were thrown into a State of nature” through

independence.

Wilson even insisted that “[i]n the beginning . . . congress

themselves were as one state”—a single national body presiding over a

86. Id. at 10 (alteration in original) (quoting THE DECLARATION OF INDEPENDENCE para. 5

(U.S. 1776)).

87. See supra notes 78–86 and accompanying text.

88. W

ILSON, supra note 59, at 10.

89. See infra Part III.

90. Danielle Allen and Emily Sneff have persuasively argued that Wilson likely

commissioned a previously unknown copy of the Declaration of Independence—the “Sussex

Declaration”—for his own personal use. See Danielle Allen & Emily Sneff, Golden Letters:

James Wilson, the Declaration of Independence, and the Sussex Declaration, 17 G

EO. J.L. &

PUB. POL’Y 193, 209–16 (2019). Furthermore, Wilson possibly read from this version at the

Convention. See id. at 218–23. Unlike the official Declaration, the Sussex Declaration

emphasized collective national unity by placing the names of the signatories together rather

than grouping them by the delegates’ states of origin. See id. at 214–16.

91. Few Americans paid much attention to the Declaration at this time, as the document

had been long forgotten. See P

AULINE MAIER, AMERICAN SCRIPTURE: MAKING THE

DECLARATION OF INDEPENDENCE 154–70 (1997). Only later did it become a revered text. See

id. at 170–89; see also Bernadette Meyler, Between the States and the Signers: The Politics

of the Declaration of Independence Before the Civil War, 89 S.

CAL. L. REV. 541, 553–71

(2016) (describing how, in the early decades of the nineteenth century, the Declaration became

a contested political symbol that was used to justify rival accounts of union).

92. 1 T

HE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 324 (Max Farrand ed.,

1911) [hereinafter FARRAND’S RECORDS] (June 19, 1787) (statement of James Wilson).

93. Id. at 324 (June 19, 1787) (statement of Alexander Hamilton).

1798 FORDHAM LAW REVIEW [Vol. 89

nation.

At this time, he suggested (rather implausibly but in order to stress

his own point about the Declaration) “dissentions or state interests were not

known.”

Rufus King, a leading nationalist from Massachusetts, agreed but took the

point in a different direction. Because they did not precede the nation,

“[n]one of the states are now sovereign or independent,” he declared.

They

were, in fact, “subordinate corporations or Societies.”

“If they formed a

confederacy in some respects,” importantly, “they formed a Nation in

others.”

It was not out of necessity or the needs of confederation that so

“[m]any . . . essential rights are vested in congress,” King explained.

There

was a crucial, underlying reason why “[n]one of the states, individually or

collectively, but in congress, have the rights of peace or war.”

100

That was

because, as he tellingly put it, “[t]his is a union of the men of those states.”

101

Indeed, a “Union of the States is a union of the men composing them, from

whence a national character results to the whole.”

102

The Union was a

compact of a national people, of individuals who lived in separate states but,

from the standpoint of sovereignty, were not of the separate states. “To

certain points,” King therefore proclaimed, “we are now a united people.”

103

“Consolidation,” he observed, “is already established.”

104

As Hamilton had

argued several years earlier, it was already a brute fact.

105

This was why

King considered “the proposed Government as substantially and formally, a

General and National Government over the people of America”—precisely

because it was over the people of America, rather than the people of the

several states.

106

These arguments regarding the nature of the polity

provided a crucial foundation from which so many other delegates claimed

throughout the Convention that, as Hamilton put it, the “national government

ought . . . to have full sovereignty.”

107

94. Id. at 170 (June 8, 1787) (statement of James Wilson).

95. Id. Though, however implausible it might have been, it is worth stressing how

ambiguous the legal status of the states was during these early years of the Union. See Mark

A. Graber, State Constitutions as National Constitutions, 69 A

RK. L. REV. 371, 373–78, 421–

23 (2016) (investigating “early state constitutions, state declarations of independence, and

state instructions to delegates to the Continental Congress” for evidence of how state leaders

conceived of the states’ legal condition).

96. 1 F

ARRAND’S RECORDS, supra note 92, at 328 (June 19, 1787) (statement of Rufus

King).

97. Id. at 331.

98. Id. at 324.

99. Id. at 328.

100. Id.

101. Id.

102. Id. at 323.

103. Id. at 328.

104. Id.

105. See Hamilton, supra note 61, at 649; Letter from Alexander Hamilton to James Duane,

supra note 62, at 401, 407.

106. 2 F

ARRAND’S RECORDS, supra note 92, at 6 (July 14, 1787) (statement of Rufus King).

107. 1 id. at 328 (June 19, 1787) (statement of Alexander Hamilton); see also id. at 305

(June 18, 1787) (outline of statement of Alexander Hamilton).

2021] IN SEARCH OF NATIONHOOD AT THE FOUNDING 1799

The nationalist understanding of the polity also shaped the drafting of the

Constitution in profound ways. In particular, it no doubt shaded how many

delegates understood the enumeration of legislative powers that were

eventually written into Article I. The mere fact of the enumeration did not

mean, to their eyes, that national power was limited to it. As John Mikhail

has shown, with his theory of delegated national authority surely in mind,

Wilson dramatically revised what became the Necessary and Proper Clause

while serving on the Committee of Detail (the committee charged with

compiling a working draft of the Constitution roughly halfway through the

Convention).

108

The national legislature would enjoy the power to make all

necessary and proper laws, not only to carry out its “foregoing powers” (those

enumerated in what would become Article I, Section 8) but also “all other

Powers” that had been vested “in the Government of the United States.”

109

This clause confirmed that there were “other Powers,” independent of

anything enumerated, that were delegated to the national government as a

whole, based on the character of the preexisting union. These revisions

provided a textual reminder of what nationalists already assumed to be the

case: that certain national powers resulted from the formation of the

American Union itself.

110

These powers were not “vested” via text but

through an entirely different mechanism. And thus, the phrase “this

Constitution,” found in the “necessary and proper” clause and elsewhere

throughout the document, described not merely the textual content being

written in Philadelphia but also, necessarily, the underlying constitution of

the polity on which that text would fundamentally be based. Those powers

“vested” by “this Constitution,” therefore, could not be identified solely

based on the expressed text found in the written Constitution, because the

content of “this Constitution” was as much a function of the kind of sovereign

people who had established it as it was the discrete textual provisions written

into it.

108. Mikhail, The Necessary and Proper Clauses, supra note 15, at 1096–106. For the

definitive study of the Committee of Detail, see William Ewald, The Committee of Detail, 28

ONST. COMMENT. 197 (2012). On Wilson’s role on the committee, see id. at 213–14, 242–

46, 276–83. For the committee’s appointment, see 2 F

ARRAND’S RECORDS, supra note 92, at

87, 95–98, 106. For the committee’s work, see id. at 129–74.

109. U.S.

CONST. art. I, § 8; Mikhail, The Necessary and Proper Clauses, supra note 15, at

1099–101, 1121–28.

110. See, e.g., W

ILSON, supra note 59, at 10–11; supra notes 92–107 and accompanying

text. Nationalists, therefore, presumably believed that the final enumeration of legislative

powers found in the Constitution incorporated, rather than eliminated, the principle advanced

in Resolution VI of the Virginia Plan (the initial draft for a new constitution presented at the

Convention). Resolution VI called to vest the national legislature with the authority “to

legislate in all cases to which the separate states are incompetent” or “in which the harmony

of the United States may be interrupted.” See 1 F

ARRAND’S RECORDS, supra note 92, at 21

(May 29, 1787) (Virginia Plan). The Committee of Detail replaced Resolution VI with an

enumeration of legislative powers, but social contract theory enabled nationalists to explain

why Resolution VI endured—why, thanks to the nature of union, the national government

already claimed the authority to address genuinely national ends. See Gienapp, National

Power and the Presidency, supra note 15, at 145–46.

1800 FORDHAM LAW REVIEW [Vol. 89

Wilson’s Committee of Detail work was soon fortified by his nationalist

ally, Gouverneur Morris, on the Committee of Style—which was assigned

the task of producing a final draft of the Constitution.

111

Morris, quite

possibly with Wilson’s assistance,

112

dramatically reworked the

Constitution’s Preamble (which Wilson had initially drafted on the

Committee of Detail).

113

Of enormous importance for the nationalist cause,

the final version unambiguously established “We the People of the United

States” as the Constitution’s founding agent.

114

Especially when combined

with what punctuated the document—rules for ratification that empowered

the people themselves, acting through special ratifying conventions, rather

than the state legislatures, to consider the new Constitution

115

—these

opening words did away with the lingering residue of the Articles. Even

under the Articles, the states could only delegate and retain those powers they

could competently exercise;

116

but now, by so dramatically undermining the

states’ claims to sovereign authority, the Constitution further underscored the

primacy of the Union. Or so nationalists believed.

117

In addition, and as

important, the final Preamble specified six specific purposes for which the

new national government would be established—including the need to

“promote the General Welfare”

118

—which could be read as the referent of

the “all other powers” so conspicuously referenced in the revised “necessary

and proper” clause: a set of national ends that a national people licensed its

national government to pursue.

119

The Preamble was proof positive of the importance of social contract

theory to the nationalist view. It served as the clearest evidence imaginable

of how so many Federalists understood the nature of the American social

compact and thus, would have read the final Constitution.

120

Like the “all

other powers” clause, the Preamble did not vest any power in the new

government but rather reinforced what was already believed to be vested,

121

111. See 2 FARRAND’S RECORDS, supra note 92, at 547, 553 (documenting the appointment

of a committee “to revise the style of and arrange the articles agreed to” and listing Gouverneur

Morris as a committee member); id. at 565–80 (documenting the committee’s final work).

112. Even though Wilson was not formally appointed to the Committee of Style, he might

have unofficially helped with the final drafting. Based on a visit with Convention delegate

Abraham Baldwin of Georgia, Ezra Stiles of Connecticut recorded in his diary that Baldwin

had claimed “Messrs Morris & Wilson had the chief hand in the last Arrangt & Composition”

of the Constitution. See Ezra Stiles, Diary (Dec. 21, 1787), reprinted in 3 F

ARRAND’S

RECORDS, supra note 97, at 168, 170.

113. William Michael Treanor, The Case of the Dishonest Scrivener: Gouverneur Morris

and the Creation of the Federalist Constitution, 119 M

ICH. L. REV. (forthcoming 2021)

(manuscript at 78–87), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3383183 [https://

perma.cc/UHT8-LZGV].

114. U.S.

CONST. pmbl.

115. Id. art. VII.

116. See W

ILSON, supra note 59, at 10.

117. See Gienapp, The Myth of the Constitutional Given, supra note 15, at 198–99.

118. U.S.

CONST. pmbl.

119. Mikhail, The Constitution and the Philosophy of Language, supra note 15, at 1097–

103.

120. See supra notes 113–19 and accompanying text.

121. See supra notes 109–10 and accompanying text.

2021] IN SEARCH OF NATIONHOOD AT THE FOUNDING 1801

serving as both proof of a particular understanding of the federal Union and

reminder of what necessarily followed from that fact. As under the Articles,

the proposed national government lacked plenary authority. But thanks to

the polity set to establish it, the government would enjoy vastly more

authority than the sum of enumerated powers expressed in the written

Constitution. As far as nationalists were concerned, the national government

would have all of the power entitled to a government established by a national

people and its nation—no more, no less.

IV.

WE THE PEOPLE VS. WE THE STATES: RATIFICATION

During ratification, several nationalists drew out these readings, appealing

to social contract theory to explicate and defend the proposed Constitution.

James Wilson, fresh off his command performance in Philadelphia, was

especially eager to ground understanding of the new system of government

in a debate over the nature of the polity.

122

What was the Constitution and

who had authorized it? Critics were confused on both counts, Wilson

contended, for contrary to what they maintained, “[t]his . . . is not a

government founded upon compact.”

123

That was because “[t]here can be

no compact unless there are more parties than one,”

124

and the Constitution

recognized but one party: “W

E, THE PEOPLE OF THE UNITED STATES.”

125

one studied the Preamble and the document as a whole, “the system itself

tells you what it is,” Wilson stressed.

126

It was neither a treaty nor a peace

pact; rather, “it is an ordinance and establishment of the people”—a national

people.

127

Of course, many founding-era Americans sharply disagreed with the

nationalists’ aims, but beginning with the ratification debates, to a striking

degree, disputes over the Constitution were defined on the nationalists’

terms.

128

Indeed, it was precisely because nationalists such as Wilson,

Morris, King, and Hamilton were right—if not about how much national

power was preferable, then about the relationship between the constitution of

the polity and the constitution of its government—that opponents found the

proposed Constitution so threatening.

129

The Preamble immediately caught anti-Federalists’ attention. “I confess,”

Samuel Adams uneasily reported, “as I enter the Building I stumble at the

Threshold. I meet with a National Government, instead of a f[e]deral Union

122. See infra notes 123–27 and accompanying text.

123. 2 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION:

PENNSYLVANIA 550, 552, 555 (Merrill Jensen ed., 1976) (Dec. 11, 1787) (statement of James

Wilson).

124. Id. at 555.

125. 2 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION:

PENNSYLVANIA, supra note 123, at 465, 493–94 (Dec. 4, 1787) (statement of James Wilson).

126. Id. at 556 (Dec. 11, 1787) (statement of James Wilson).

127. Id. at 555–56.

128. Gienapp, The Myth of the Constitutional Given, supra note 15, at 198–201, 204–05.

129. Id. at 204–05.

1802 FORDHAM LAW REVIEW [Vol. 89

of Sovereign States.”

130

At its “very commencement,” observed Cincinnatus

in direct response to Wilson, the Constitution “prescribe[s] this remarkable

declaration—We the People of the United States.”

131

Patrick Henry echoed

this sentiment most famously, asking why the Constitution began: “We, the

People, instead of We, the States?”

132

While Henry’s quip is best known, it

was hardly the only one.

The Preamble proved so threatening because anti-Federalists perfectly

understood, much as Federalists did, that it revealed something substantive

about the kind of union the United States would be under the Constitution.

The proposed Constitution presupposed a certain kind of federal polity, one

that revealed it to be “a compact between individuals entering into society,”

William Findley observed, “and not between separate states enjoying

independent power and delegating a portion of that power for their common

benefit.”

133

Indeed, Robert Whitehill claimed in the Pennsylvania ratifying

convention, the Preamble showed “the principle of confederation excluded,

and a new unwieldy system of consolidated empire . . . set up upon [it].”

134

Thanks to what it said about the underlying polity, anti-Federalists assumed,

the Constitution entitled the national government to more power than was

expressly enumerated. “The inference is natural,” Brutus complained,

135

based on “the great end of the constitution . . . to be collected from the

preamble,”

136

that “the [national] legislature will have an authority to make

all laws which they shall judge necessary for the common safety, and to

promote the general welfare.”

137

These implications were only reinforced,

an anti-Federalist author writing under the pseudonym “An Old Whig”

138

130. Letter from Samuel Adams to Richard Henry Lee (Dec. 3, 1787), in 4 THE

DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: MASSACHUSETTS 349,

349 (John P. Kaminski et al. eds., 1997).

131. Cincinnatus V: To James Wilson, Esquire,

N.Y.J., Nov. 29, 1787, reprinted in 14 THE

DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: COMMENTARIES ON THE

CONSTITUTION, supra note 40, at 303, 307.

132. 9 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: VIRGINIA

915, 930 (John P. Kaminski et al. eds., 1990) (June 4, 1788) (statement of Patrick Henry).

133. 2 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION:

PENNSYLVANIA, supra note 123, at 444, 447–48 (Dec. 1, 1787) (statement of William Findley);

see also Luther Martin, Genuine Information IV, B

ALT. MD. GAZETTE, Jan. 8, 1788, reprinted

in 15 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION:

COMMENTARIES ON THE CONSTITUTION, supra note 40, at 296, 297 (“It is in its very

introduction declared to be a compact between the people of the United States as

individuals . . . .”).

134. 2 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION:

PENNSYLVANIA, supra note 123, at 382, 393 (Nov. 28, 1787) (statement of Robert Whitehill).

135. Brutus V,

N.Y.J., Dec. 13, 1787, reprinted in 14 THE DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION: COMMENTARIES ON THE CONSTITUTION, supra note 40,

at 422, 423.

136. Brutus XII, N.Y.J., Feb. 7, 1788, reprinted in 16 T

HE DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION: COMMENTARIES ON THE CONSTITUTION, supra note 40,

at 72, 74.

137. Brutus V,

supra note 135, at 423.

138. Some believe that “An Old Whig” was George Bryan, either writing alone or as part

of a wider group of writers. See 13 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE

CONSTITUTION: COMMENTARIES ON THE CONSTITUTION, supra note 40, at 376.

2021] IN SEARCH OF NATIONHOOD AT THE FOUNDING 1803

believed, by the inclusion of a clause “for carrying into execution A

LL OTHER

POWERS,” which indicated that “other powers may be assumed hereafter as

contained by implication in this constitution.”

139

Nationalists were not alone

in their reading of the Necessary and Proper Clause, in particular Wilson’s

strategic changes to it.

Those Federalists who were less committed to expansive national power,

such as James Madison, worked to reassure anti-Federalists that the proposed

Constitution delegated powers that were, in fact, “few and defined.”

140

Though, importantly, Madison’s disagreement with the nationalists did not

stop there. Despite supporting the Constitution, he resisted the nationalist

account of union. While it might have seemed, Madison argued, “that the

Constitution is to be founded on the assent and ratification of the people of

America,” on closer examination, that “assent and ratification is to be given

by the people, not as individuals composing one entire nation; but as

composing the distinct and independent States to which they respectively

belong.”

141

Therefore, the “act . . . establishing the Constitution,” he

concluded, “will not be a national but a federal act.”

142

Madison thus

believed that national powers under the Constitution would be “few and

defined,” in part, because a nonnational people were set to establish its

legitimacy.

143

Nationalists such as Wilson, who insisted, in contrast to Madison, that the

Constitution would be “ordained and established by the people

themselves”

144

because “[t]here can be no compact unless there are more

parties than one,”

145

nonetheless, on account of the rhetorical and political

needs of the moment, offered their own reassurances to anti-Federalists.

Being the skilled lawyer that he was, however, Wilson made sure to leave

room for his own genuine understandings of national power and union. For

instance, “where the powers are particularly enumerated,” he pledged “the

implied result is, that nothing more is intended to be given, than what is so

139. An Old Whig II, PHILA. INDEP. GAZETTEER, Oct. 17, 1787, reprinted in 13 THE

DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: COMMENTARIES ON THE

CONSTITUTION, supra note 40, at 399, 402–03.

140. T

HE FEDERALIST NO. 45 (James Madison), reprinted in 15 THE DOCUMENTARY

HISTORY OF THE RATIFICATION OF THE CONSTITUTION: COMMENTARIES ON THE CONSTITUTION,

supra note 40, at 476, 479; see also 27 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF

THE

CONSTITUTION: SOUTH CAROLINA 90, 97 (John P. Kaminski et al. eds., 2016) (Jan. 16,

1788) (statement of Charles Pinckney) (“The distinction which has often been taken between

the nature of a federal and state government appeared to be conclusive—that in the former no

powers could be executed or assumed but such as were expressly delegated, and in the latter

the indefinite power was given to the government, except upon points that were by express

compact reserved to the people.”).

141. T

HE FEDERALIST NO. 39 (James Madison), reprinted in 15 THE DOCUMENTARY

HISTORY OF THE RATIFICATION OF THE CONSTITUTION: COMMENTARIES ON THE CONSTITUTION,

supra note 40, at 380, 383.

142. Id.

143. T

HE FEDERALIST NO. 45 (James Madison), supra note 140, at 479.

144. 2 T

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION:

PENNSYLVANIA, supra note 123, at 550, 556 (Dec. 11, 1787) (statement of James Wilson).

145. Id. at 555.

1804 FORDHAM LAW REVIEW [Vol. 89

enumerated, unless,” he made sure to add, “it results from the nature of the

government itself.”

146

The federal government would be able to exercise

only those powers delegated to it, but that, of course, raised the question of

how power was delegated under a constitution like the one proposed in the

first place. Here, Wilson reminded careful listeners: “I consider the people

of the United States, as forming one great community,” while “the people of

the different states” formed communities “on a lesser scale.”

147

“From this

great division of the people into distinct communities,” he went on, different

allotments of power were “given to the governments, according to the nature,

number, and magnitude of their objects.”

148

Those objects were a function

of the polity that constituted the government. The sum of delegated authority

was limited to what happened to be enumerated if—and only if—the

underlying polity happened to be a collection of sovereign states rather than

a far-flung sovereign people. If it was the latter—as nationalists insisted it

was—then the sum of delegated power was greater than if it was not.

No matter how many Federalists hinted otherwise to help ensure

ratification, therefore, few skeptics were pacified by these assurances

because the Federalists’ foundational assumption resonated. Most assumed

that there was indeed an inescapable relationship between the constitutional

text and the underlying polity, one that could not be ignored.

DEBATING NATIONAL POWER THROUGH THE NATURE OF THE POLITY

After ratification, these fault lines continued to shape constitutional debate

in profound ways. To an extent often not appreciated, defenders of national

power instinctively appealed to the kinds of nationalist social contract

arguments that had emerged in the 1780s and to powerful effect.

They did so in a range of important debates, though perhaps nowhere quite

as significantly as during the debate over Alexander Hamilton’s proposed

national bank.

149

In the House of Representatives, bank defenders appealed

to the nature of the polity and government with as much frequency as they

parsed the Constitution’s textual commands. They claimed, as Wilson and

King had earlier, that the national government’s power was shaped by the

character of the underlying federal union: “by the very nature of

government,” contended Fisher Ames, the quick-witted representative from

Massachusetts, “the legislature had an implied power of using every mean

not positively prohibited by the constitution, to execute the ends for which

that government was instituted.”

150

The Preamble, he continued, “vested

146. 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION:

PENNSYLVANIA, supra note 123, at 465, 470 (emphasis added) (Dec. 4, 1787) (statement of

James Wilson).

147. Id. at 472.

148. Id.

149. Gienapp, The Myth of the Constitutional Given, supra note 15, at 205–11. On the

bank debate as a whole, see J

ONATHAN GIENAPP, THE SECOND CREATION: FIXING THE

AMERICAN CONSTITUTION IN THE FOUNDING ERA 202–47 (2018).

150. Philadelphia, Feb. 9., GEN. ADVERTISER (Phila.), Feb. 9, 1791, reprinted in 14

OCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF

2021] IN SEARCH OF NATIONHOOD AT THE FOUNDING 1805

Congress with the authority over all objects of national concern or of a

general nature.”

151

Numerous bank defenders echoed Ames. “The principles of the

government and ends of the constitution,” John Laurance declared, “were

expressed in the preamble.”

152

Among those principles was the fact of a

national people and polity. As John Vining of Delaware explained, by virtue

of the Declaration of Independence, the United States “derive[d] all the

powers appertaining to a nation,” which included the specific “power under

consideration”—the right to charter a national bank.

153

When it came time for Hamilton to offer his own opinion on the

constitutionality of the proposed bank, he too relied on social contract

principles to justify a more expansive set of powers for the national

government, though his appeal to these precepts was subtler.

154

He did not

underscore the Preamble, nor did he speak explicitly about a national people

having formed a national polity.

155

But he did allude to the formation of

political society to justify a broad interpretation of the Constitution’s powers.

“[A]ll government is a delegation of power,” he wrote, and “how much is

delegated in each case” turned on “fair reasoning & construction upon the

particular provisions of the constitution—taking as guides the general

principles & general ends of government.”

156

Interpretation needed to be

guided by a fair assessment of the general principles and ends of government,

something to be derived from the formation of the underlying social

compact.

157

With these ends of government in mind, it was fair to assume

that “the powers contained in a constitution of government . . . ought to be

construed liberally, in advancement of the public good.”

158

Because the

American people had entered into a common political society—that is,

because they had formed a national social compact—the government

established for that society was necessarily empowered to promote the

general welfare.

159

As long as a liberal exercise of power was “not contrary

AMERICA 385, 386 (Charlene Bangs Bickford et al. eds., 1995) (statement of Fisher Ames,

Feb. 3, 1791).

151. Philadelphia, Feb. 10., G

EN. ADVERTISER (Phila.), Feb. 10, 1791, reprinted in 14

OCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF

AMERICA, supra note 150, at 387, 389 (statement of Fisher Ames, Feb. 3, 1791).

152. Philadelphia, Feb. 15., G

EN. ADVERTISER (Phila.), Feb. 15, 1791, reprinted in 14

OCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF

AMERICA, supra note 150, at 412, 413 (statement of John Laurance, Feb. 4, 1791).

153. Congress. House of Representatives. Tuesday, Feb. 8., G

AZETTE OF THE U.S. (Phila.),

Apr. 16, 1791, reprinted in 14 D

OCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF

THE

UNITED STATES OF AMERICA, supra note 150, at 471, 472 (statement of John Vining, Feb.

8, 1791).

154. For a related discussion, see Campbell, supra note 19, at 101–03.

155. Gienapp, The Myth of the Constitutional Given, supra note 15, at 208–09.

156. Alexander Hamilton, Final Version of an Opinion on the Constitutionality of an Act

to Establish a Bank (1791), reprinted in 8 T

HE PAPERS OF ALEXANDER HAMILTON, supra note

34, at 97, 100 (emphasis added).

157. See id.

158. Id. at 105.

159. See id.

1806 FORDHAM LAW REVIEW [Vol. 89

to the essential ends of political society,” then that government was justified

to pursue the general purposes for which that society had been established in

the first place.

160

To an important degree, then, Hamilton based his argument

on an account of the nation’s underlying compact.

Even more emphatically, the U.S. Supreme Court’s ruling in Chisholm v.

Georgia,

161

orchestrated by leading nationalists Justice James Wilson and

Chief Justice John Jay, firmly relied on social contract theory. The entire

question of whether states could be sued by residents of other states came

down, in their minds, to the nature of the United States itself—to what kind

of people and community had given life to the Constitution.

162

The

distribution of sovereignty in the Union tracked the nature of the Union and

turned on the kind of people that had brought it into being. The

Constitution’s text did not, and could not, stand alone. Its meaning was,

ultimately, a function of the kind of sovereign agent who had authorized it

and, in turn, the kind of union for which that sovereign agent spoke. Just as

in the eyes of leading Federalists it was impossible to determine whether the

national government enjoyed a power to charter a national bank without first

understanding the character of the Union,

163

so too was it impossible to sort

out state suability (and related issues of retained sovereignty) by simply

fixating on the Constitution’s expressed text. The issue in Chisholm turned

on a question that preceded the text: whether the United States was a nation

of genuine legal standing.

164

In determining the issue in question, Wilson dissected principles of general

jurisprudence, the laws and practices of the various states, and the law of the

Constitution.

165

But all of this detailed analysis was preceded by a more

basic consideration, one that ultimately shaped and, in many ways, drove the

remainder of the inquiry. “The question to be determined,” he stated at the

outset,

is, whether this State, so respectable, and whose claim soars so high, is

amenable to the jurisdiction of the Supreme Court of the United States?

This question, important in itself, will depend on others, more important

still; and, may, perhaps, be ultimately resolved into one, no less radical than

this—“do the people of the United States form a Nation?”

166

Here was the foundational question.

Answering it required probing the nature of sovereignty in the United

States and particularly the ways in which the American Revolution had

transformed it. In taking stock of Americans’ recent history, Wilson

remarked that all too often states and sovereigns had been conflated, a

mistake Americans had not made. “To the Constitution of the United States,”

160. Id. at 98.

161. 2 U.S. (2 Dall.) 419 (1793).

162. Id. at 453, 470–71.

163. See supra notes 150–60 and accompanying text.

164. See supra note 162 and accompanying text.

165. Chisholm, 2 U.S. (2 Dall.) at 453.

166. Id. (emphasis omitted).

2021] IN SEARCH OF NATIONHOOD AT THE FOUNDING 1807

he explained, “the term S

OVEREIGN, is totally unknown. There is but one

place where it could have been used with propriety . . . . [the] ‘S

OVEREIGN’

people of the United States.”

167

Neither the nation-state nor the individual

states that comprised the American Union were sovereign.

168

Only the

people who had brought both kinds of states into being merited that exalted

designation.

169

(This, among many reasons, was, to Wilson’s mind, why

Blackstone’s theory of law, based on the command of a superior

governmental sovereign, was so deeply mistaken.)

170

If “the majesty of the

people,” rather than “the prerogative of Kings” or the “sovereignty of

[s]tates” (the conventional focus of political and legal writing), was the only

authority known in the wake of the Revolution, then the question boiled down

to: which kind of people?

171

For Wilson, the answer was clear: a national people. “[O]ur national scene

opens with the most magnificent object, which the nation could present,” he

averred, “‘[t]he P

EOPLE of the United States’ are the first personages

introduced.”

172

And, quoting the Preamble, he continued “[i]n order,

therefore, to form a more perfect union, to establish justice, to ensure

domestic tranquillity, to provide for common defence, and to secure the

blessings of liberty, those people, among whom were the people of Georgia,

ordained and established the present Constitution.”

173

Consequently, Wilson

concluded, taking “a combined and comprehensive view, the general texture

of the Constitution” confirmed that “the people of the United States intended

to form themselves into a nation for national purposes.”

174

Jay offered a comparable analysis. The matter of whether Georgia, or any

other state, enjoyed sovereign immunity turned on the Constitution’s legal

foundations. And on this score, what mattered above all was that “the people,

in their collective and national capacity, established the present

Constitution.”

175

Jay based this conclusion primarily on a historical account.

“The Revolution, or rather the Declaration of Independence,” he observed,

“found the people already united for general purposes.”

176

He continued:

From the crown of Great Britain, the sovereignty of their country passed to

the people of it; and it was then not an uncommon opinion, that the

unappropriated lands, which belonged to that crown, passed not to the

people of the Colony or States within whose limits they were situated, but

to the whole people . . . .

177

167. Id. at 454 (emphasis omitted).

168. See id.

169. See id.

170. Id. at 458.

171. Id. at 463 (emphasis omitted).

172. Id. (emphasis omitted).

173. Id. (emphasis omitted).

174. Id. at 465 (emphasis omitted).

175. Id. at 470.

176. Id.

177. Id. (emphasis omitted).

1808 FORDHAM LAW REVIEW [Vol. 89

Echoing Wilson’s argument in defense of the Bank of North America,

178

Jay

stressed that the act of declaring independence from Britain had established

a national people. This national people then gave voice to “their own proper

sovereignty” in “declar[ing] with becoming dignity, ‘We the people of the

United States, do ordain and establish this Constitution.’”

179

“Here we see,”

Jay noted, “the people acting as sovereigns of the whole country and in the

language of sovereignty, establishing a Constitution by which it was their

will that the State Governments should be bound, and to which the State

Constitutions should be made to conform.”

180

Everything came down to the

fact that a national people had brought the American legal order into being.

Of course, Chisholm caused consternation, and the Eleventh Amendment

eventually nullified its narrow holding.

181

But even if some people at the

time and many since have assumed that the Amendment established a broader

principle of state sovereign immunity, there is no reason to believe that

nationalists concluded that the amendment undermined the broader account

of national popular sovereignty on which the Court’s decision had been

based. To at least nationalist eyes, the Eleventh Amendment protected states

from retrospective liability on claims predating the Constitution.

182

But that

said nothing about claims incurred thereafter.

183

Nor, more importantly, did

it unsettle the fundamental principle announced in Chisholm, which remained

as undeniable as it had been since the Constitution took effect: that the

people of the United States, as a national people, had created a nation.

184

Wilson’s and Jay’s enquiries requires reinforced what so many nationalists

had to that point maintained: that the Preamble, far from the rhetorical

flourish to which it would later be reduced,

185

was the key to unlocking the

Constitution. It revealed what sort of thing the Constitution was, by

confirming what kind of people and polity it represented. It was evidence of

the Union’s underlying social contract. Beneath a national constitution could

be found a national people. It was, thus, utterly misguided—not to mention

legally mistaken—to view the Constitution as a treaty or anything

comparable. It was no such thing. It was a national constitution, and each

of those words mattered. As a constitution, it was predicated on the sovereign

will of a people. As a national constitution, it was predicated on the

sovereign will of a national people. Its character and authority could not be

divorced from the social compact that undergirded it.

178. See supra notes 76–85 and accompanying text.

179. Chisholm, 2 U.S. (2 Dall.) at 471.

180. Id.

181. See U.S.

CONST. amend. XI; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 97–98 (1984) (dicta) (stating that Chisholm “created such a shock of surprise that the

Eleventh Amendment was at once proposed and adopted” and that the Amendment “overruled

the particular result in Chisholm” (citation omitted)).

182. See James E. Pfander, History and State Suability: An “Explanatory” Account of the

Eleventh Amendment, 83 C

ORNELL L. REV. 1269, 1368–69 (1998).

183. Id. at 1343–52.

184. See supra notes 167–80 and accompanying text.

185. In 1905, the Supreme Court held that the Preamble was not a grant of power. See

Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).

2021] IN SEARCH OF NATIONHOOD AT THE FOUNDING 1809

During the Constitution’s earliest years, leading nationalists routinely

transformed debates over the limits of national power into ones over the

nature of the American polity.

186

Building on the ideas they had first

articulated in the 1780s, they imagined that national constitutional

interpretation was tightly entangled with issues of nationhood. Sorting out

the Constitution’s meaning required deciphering its underlying social

contract—grasping the compact and polity that preceded the constitution of

government. Whoever tried to limn the boundaries of national power based

solely on a textual analysis of the Constitution’s words betrayed ignorance

of what they were reading and the kind of legal content it contained—or so

Federalists insisted, time and again.

VI.

COMPACT THEORY: THE ULTIMATE CONCESSION

Strikingly, nationalists’ argument proved so resonant that their intellectual

opponents would come to tacitly agree with its underlying premise. Possibly

the strongest evidence of that argument’s resonance has been hiding in plain

sight. Only because nationalists were right about the implications of social

contract theory were anti-nationalists compelled to invent compact

theory

187

—the idea that the federal Union was a compact among sovereign

states rather than a national contract among the individuals of the United

States.

188

They conceded that the scope of the national government’s

authority was indeed determined by the nature of the preceding political

compact (the two-step logic of social contract theory), while denying

nationalists’ account of step one (the nature of the social compact found in

the United States). Rather than challenge nationalists’ logic, in other words,

anti-nationalists tried to refute the argument on its own terms. This implies

186. See supra Parts II–IV.

187. Because of how eighteenth-century constitutional and political authors wrote,

terminology can get tricky here. Social contract theory—which, to make things especially

confusing, was often itself called social compact theory—was the larger framework. As

discussed, this overarching theory presupposed a two-step process of political formation that

explained how human beings moved from the state of nature to living under government: step

one involved forming a social compact, while step two consisted of constituting a government

for that compact. See supra Part I. From within this framework, there were lots of different

ways to understand, as a matter of contingent fact, how one’s own political community had

been formed. Federalists, as we have seen, devised one alternative: people across the

American Union had formed a national social compact of individuals at the national level. See

supra Part II.

Compact theory, by contrast, presented a different alternative from within the framework of

social contract theory: people in the individual states had formed separate state social

compacts, followed by separate state governments, and only thereafter had they attended to

the Union as a whole. Compact theory, therefore, was neither a substitute for nor a competitor

to social contract (or social compact) theory. It was, instead, an application of social contract

theory—a particular account, based on the terms of social contract theory, of which kinds of

social compacts existed in the United States. See S

AUL CORNELL, THE OTHER FOUNDERS:

ANTI-FEDERALISM AND THE DISSENTING TRADITION IN AMERICA, 1788–1828, at 237–45

(1999); C

HRISTIAN G. FRITZ, AMERICAN SOVEREIGNS: THE PEOPLE AND AMERICA’S

CONSTITUTIONAL TRADITION BEFORE THE CIVIL WAR 190–234 (2008).

188. C

ORNELL, supra note 187, at 237–45; FRITZ, supra note 187, at 190–234.

1810 FORDHAM LAW REVIEW [Vol. 89

something striking about founding-era constitutional assumptions and thus

the conceptual background against which the original Constitution was set.

Initially, skeptics of national power, most of whom rallied behind Thomas

Jefferson’s and James Madison’s opposition to the Washington

administration, and particularly Hamilton’s policies within it, tested different

arguments. Among other things, they pressed the Constitution’s text into

service, hopeful that they could confine the national government’s powers to

the express terms of the document. In the debate over the national bank, they

countered defenses of far-reaching national power by contending that, as

Madison famously argued, the Constitution’s “essential characteristic” was

that it established a government “of limited and enumerated powers.”

189

William Branch Giles of Virginia took this argument a step further, asserting

that “the peculiar nature of this government” lay in the fact that it was

“composed of mere chartered authorities.”

190

Accordingly, any “authority

not contained within that charter” was off-limits.

191

The soon-to-be Tenth

Amendment, which declared that the states retained all powers not delegated

to the federal government, Giles argued, underscored this essential point.

192

Throughout the 1790s, as the nation divided into discernible political

coalitions, these became common refrains among Jeffersonian

Republicans.

193

Yet, strikingly, champions of strict enumerated powers and the

Constitution’s written character recognized that limiting the scope of the

federal government’s power required challenging nationalists’ account of

federal union. Pointing to the enumeration of legislative powers or clamoring

about the Tenth Amendment only reinforced that the debate turned not on the

Constitution’s written content but on the operative meaning of “delegated.”

To claim that something about the Constitution’s writtenness settled the

matter already presupposed a robust understanding of how federal power

was, as an initial matter, delegated and, thus, what kind of polity had

constituted the federal government in the first place. That Republicans did

not ultimately rest their case on the inherent limitations of enumerated

powers but instead based it on a rival account of federal union, is conspicuous

acknowledgement that, to their minds, nationalists’ core premise was correct.

Republicans, consequently, began trumpeting compact theory. According

to the dominant version of this theory, there was no people of the United

States, no national social contract. There were peoples of the various states,

189. Congress. House of Representatives. Wednesday, Feb. 2., GAZETTE OF THE U.S.

(Phila.), Feb. 23, 1791, reprinted in 14 DOCUMENTARY HISTORY OF THE FIRST FEDERAL

CONGRESS OF THE UNITED STATES, supra note 150, at 367, 371 (statement of James Madison,

Feb. 2, 1791).

190. Congress. House of Representatives. Saturday, Feb. 7., G

AZETTE OF THE U.S. (Phila.),

Apr. 6, 1791, reprinted in 14 D

OCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF

THE

UNITED STATES, supra note 150, at 466, 468 (statement of William Giles, Feb. 7, 1791).

191. Id.

192. Id.

193. On the origins of the nation’s first political parties, see generally E

LKINS &

MCKITRICK, supra note 10; GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY

REPUBLIC, 1789–1815 (2009).

2021] IN SEARCH OF NATIONHOOD AT THE FOUNDING 1811

each of whom had created separate polities through state-level social

contracts.

194

These states had then compacted together to form a union, and

this was why federal power was inherently limited. Republicans, in other

words, accepted the premise, if not the conclusion, of nationalists’ argument.

At the Constitutional Convention, Gouverneur Morris had “explained the

distinction between a federal and national, supreme, Govt.; the former being

a mere compact . . . the latter having a compleat and compulsive

operation.”

195

Because, he went on, “in all communities there must be one

supreme power,” the question of delegated authority thus turned on whether

or not the United States formed one single political community.

196

Defeating

nationalists’ sweeping claims that the federal government could broadly

interpret the Constitution to promote the national public good meant cutting

them at their roots. It required demonstrating that the Union was not a single

political community but, in fact, several. It meant taking Morris’s logic and

distinctions seriously and, based on them, reaching an alternative conclusion.

When defending compact theory in 1798 in the Kentucky Resolutions,

Thomas Jefferson did just this. His arguments could not have been more

revealing. The Constitution, he asserted, was a “compact under the style and

title of a Constitution for the United States.”

197

This phrasing is worth a

careful look. No matter the Constitution’s own style and form, which

otherwise seemed to present it as a constitution (signaled nowhere more

clearly than in the Preamble), it was actually something else entirely: a

compact.

198

This foundational statement colored everything that followed,

including especially what came next. The resolutions claimed that the

“several states composing the United States of America . . . [had] constituted

a General Government for special purposes, delegat[ing] to that Government

certain definite powers” while “reserving . . . the residuary mass” to

themselves, meaning any assumption on the part of the national government

of “undelegated powers” was, accordingly, “void, and of no force.”

199

These

claims about enumeration and the express delegation and reservation of

powers rested on the initial premise that there was no federal polity and that

the “style and form” of the Constitution was misleading.

200

These arguments became doctrinaire among Republicans. Virginian John

Taylor claimed that “the people in state conventions,” in their capacity as the

peoples of the individual states, were “incontrovertibly the contracting

parties” of the Constitution.

201

In The Report of 1800, written in defense of

194. See FRITZ, supra note 187, at 194–96, 198–99.

195. 1 F

ARRAND’S RECORDS, supra note 92, at 34 (May 30, 1787) (statement of Gouverneur

Morris).

196. Id.

197. Thomas Jefferson, Resolutions Adopted by the Kentucky General Assembly (Nov.

10, 1798), reprinted in 30 T

HE PAPERS OF THOMAS JEFFERSON 550, 550 (Barbara B. Oberg et

al. eds., 2003).

198. See id.

199. See id.

200. See id.

201. Letter from John Taylor to Thomas Jefferson (June 25, 1798), in 30 T

HE PAPERS OF

THOMAS JEFFERSON, supra note 197, at 430, 434.

1812 FORDHAM LAW REVIEW [Vol. 89

the Virginia and Kentucky Resolutions, Madison similarly regarded “the

people composing” the “political societies” of the various states as having

acted “in their highest sovereign capacity” when they ratified the

Constitution.

202

Meanwhile, a few years later, in 1803, the leading legal

theorist of the Republican movement, St. George Tucker,

203

systematically

defended this point in an extensive essay appending his annotated (and

Americanized) edition of Blackstone’s Commentaries.

204

The federal

government’s powers were confined to those written, Tucker argued, because

the Constitution was a compact among sovereign states; there was no national

polity, just a national government brought into being by separate peoples in

separate states.

205

There was no escaping, it seemed, the recognition that

constitutional powers derived, in some significant sense, from the nature of

the American Union. Republicans certainly seemed content to argue on the

terms that Federalists had so spiritedly defended and leveraged to such effect.

Why, we ought to ask, did Republicans feel a need to construct compact

theory? Why did they not simply fall back on strict construction or point to

the Constitution’s enumerated powers or putative writtenness? Because, it

would seem, they believed that Federalists were right: if, as a point of fact,

there was a national polity, then the national government would indeed have

claim to more power than if there was not. Compact theory was designed to

deny the existence of a federal polity, of a national social compact, of a

nation.

206

This only made sense in the context of social contract theory and

what it implied about the Union: that there were two constitutions (one for

the polity and another for the government), the first of which necessarily

informed and shaped the second. Jefferson’s comments, in particular, are so

revealing and so rarely appreciated for what they imply. Republicans could

not concede, ultimately, that the federal Constitution was a constitution—it

had to be something else. If it was a constitution, if it spoke for a nation and

a national people, then all bets were off. Few developments more powerfully

underscore the nation’s importance—as a legal category at the founding—

202. JAMES MADISON, THE REPORT OF 1800 (Jan. 7, 1800), reprinted in 17 THE PAPERS OF

JAMES MADISON 303, 309 (David B. Mattern et al. eds., 1991). Though, in crucial ways,

Madison resisted compact theory. Unlike Jefferson and most other Republicans, he

acknowledged the existence of a national polity and national social contract; contrary to

nationalists, however, he believed that that polity did not predate the Constitution but rather

was only created through the act of ratifying it. See id. at 309, 315. While the states did not

retain sovereignty postratification, nonetheless they were the parties to the Constitution

because state polities had been the ones to divest the authority necessary to create the new

nation. See id. In a revealing development, John Marshall, despite his nationalism, would

make an argument similar to Madison’s some two decades later in defense of McCulloch v.

Maryland. See Martin S. Flaherty, John Marshall, McCulloch v. Maryland, and “We the

People”: Revisions in Need of Revising, 43 W

M. & MARY L. REV. 1339, 1370–79 (2002).

203. C

ORNELL, supra note 187, at 263–73.

204. On Tucker’s 1803 edition of Blackstone and how he attempted to republicanize it, see

Clyde N. Wilson, Foreword to S

T. GEORGE TUCKER, VIEW OF THE CONSTITUTION OF THE

UNITED STATES, WITH SELECTED WRITINGS viii–x (Clyde N. Wilson ed., 1999).

205. S

T. GEORGE TUCKER, View of the Constitution of the United States (1803), reprinted

in V

IEW OF THE CONSTITUTION OF THE UNITED STATES, WITH SELECTED WRITINGS, supra note

204, at 91, 91–106.

206. See supra notes 194–96 and accompanying text.

2021] IN SEARCH OF NATIONHOOD AT THE FOUNDING 1813

than the emergence of compact theory. That Jeffersonians assumed, as a

matter of course, that their vision of limited constitutional power was

incompatible with the existence of a national polity confirms as much.

ONCLUSION

If we begin to understand why Federalists were so obsessed with

nationhood, and the creative constitutional thinking that grew out of that

obsession, we can bring back into focus a cluster of assumptions that were

once inseparable from efforts to interpret the Constitution. At the founding,

constitutional interpretation and social contract theory were often tightly

connected.

We are not beholden to anything Federalists or their opponents thought.

We need not assume, as they once did, that questions of constitutional

meaning and interpretation were inextricably entangled with questions of

sovereignty and union. Maybe, heeding Don Herzog’s recent advice, we will

decide that sovereignty is a concept that has outlived its usefulness.

207

Maybe, in our modern age, on the other side of positivist and historicist

revolutions that have fundamentally remade how we think about legal

authority and its fundamental basis, we will have little interest in social

contract theory and its attendant natural law assumptions. Maybe, especially

in the wake of the Civil War, we will decide it is tedious to sort out quasi-

metaphysical questions regarding the character of our federal polity and

instead be content with focusing on how the federal system works in practice

rather than theory. Maybe, in short, it just does not matter anymore whether,

constitutionally speaking, our polity was born a nation or a set of independent

states.

But what we cannot do is claim to be interested in recovering, describing,

or understanding the original Constitution, while ignoring the social contract

assumptions that Federalists and their opponents treated as foundational.

There is nothing wrong with reading the Constitution apart from any

particular understanding of federal union—times change, after all. But if the

point is to understand the Constitution as it once was—to recover the

meaning it might have had at its inception—then we need to appreciate what

reading the Constitution necessarily entailed. We cannot start with the

document or its words; we need to start with the Union for which it spoke.

Originally, the Constitution was inseparable from theories of federal union.

If we disaggregate one from the other, we do not clear the way for clearer

interpretation. To the contrary, we simply wrench the Constitution out of the

eighteenth century and transform it into something it originally was not. We

leave behind the past and make the Constitution an artifact of the present. If

then our goal is to confront the original Constitution on its own terms, we

need to understand why Federalists and, in turn, their opponents, cared so

deeply about the state of the nation.

207. See generally DON HERZOG, SOVEREIGNTY, R.I.P. (2020).