Friday, March 15, 2013

Ablavsky, "The Savage Constitution"

Gregory Ablavsky (University of Pennsylvania) has posted "The Savage Constitution," which is forthcoming in the Duke Law Journal. Here's the abstract:
Conventional histories of the Constitution largely omit Natives. This Article challenges this absence and argues that Indian affairs played a key role in the Constitution’s creation, drafting, and ratification. It traces two constitutional narratives about Indians: a “Madisonian” and a “Hamiltonian” perspective. Both views arose from the failure of Indian policy under the Articles of Confederation, where explicit national authority could not constrain states, squatters, and Native nations. Nationalists agreed that this failure underscored the need for a stronger federal state, but disagreed about the explanation. Madisonians blamed interference with federal treaties, while the Hamiltonians argued the federal military was too weak to overawe the “savages.”

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

The two narratives fared differently during ratification. Few embraced centralization, while the Federalists repeatedly invoked “savages” to justify a stronger federal state and a standing army. This argument swayed Georgia, which ratified to secure federal aid in its ongoing war with the Creeks. But it also elevated dispossession of Natives into a constitutional principle. The Article concludes by exploring this history’s interpretive implications. It suggests the Indian affairs context unsettles conventional understandings of the Constitution as intended to restrain the power of the state, and challenges both originalist and progressive assumptions about constitutional history.
The full article is available for download here, at SSRN.