Tuesday, October 6, 2009

Golove and Hulsebosch on Early American Constitutions and the Law of Nations

“On an Equal Footing: Constitution-Making and the Law of Nations in the Early American Republic,” by David Golove and Daniel J. Hulsebosch, New York University School of Law, is available here, in conjunction with their forthcoming appearance in the Foreign Relations Law Colloquium of the Georgetown University Law Center. The paper is forthcoming in the NYU Law Review in 2010. Here’s the abstract:
This article argues that the American founders wrote constitutions not simply to organize their domestic governments but also to position the new states, individually and collectively, in relation to the polities around them. From the first state constitutions in 1776 through, at least, the first two presidential administrations of the 1790s, the founding generation undertook constitutionmaking in a geopolitical environment fraught with peril: They made their constitutions while breaking away from one European empire, courting the assistance of others, and then integrating themselves into the Atlantic world of nations on an equal footing. After the Revolution, the founding generation continued to make and remake their constitutions to earn international “recognition” while avoiding the ever-present prospect of war. The key to obtaining recognition, many founder believed, was to express their commitment to the law of nations and to establish governmental institutions that made that commitment credible. This anxious and cosmopolitan historical context is absent from the modern understandings of American constitution-making.

The cosmopolitan dimension of the founding recovered here provides a critical orientation to understanding the original meaning of the foreign affairs provisions. Our focus on the question of constitutional purpose – why did the founders draft and institute constitutions? – differs from conventional exercises in constitutional history, which usually focuses on disaggregated constitutional provisions. When that broader context is appreciated, those provisions appear in a light that is different from more nationalistic interpretations assume. Our interpretation of cosmopolitan drivers of constitution-making should help inform those more conventional approaches to understanding constitutional meaning.

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