Yale Law School Yale Law School Legal Scholarship Repository Faculty Scholarship Series Yale Law School Faculty Scholarship 1-1-1991 Some New World Lessons for the Old World Akhil Reed Amar Yale Law School Follow this and additional works at:http://digitalcommons.law.yale.edu/fss_papers Part of theLaw Commons Recommended Citation Amar, Akhil Reed, "Some New World Lessons for the Old World" (1991).Faculty Scholarship Series.Paper 1032. http://digitalcommons.law.yale.edu/fss_papers/1032 This Article is brought to you for free and open access by the Yale Law School Faculty Scholarship at Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship Series by an authorized administrator of Yale Law School Legal Scholarship Repository. For more information, please [email protected]. Some New World Lessons for the Old World Akhil Reed Amart ... [Y]ou are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than . . the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important ques- tion, whether societies of men are really capable or not of es- tablishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.... [A] wrong election of the part we shall act may, in this view, deserve to be consid- ered as the general misfortune of mankind.1 So begins the extraordinary set of essays now known as The Federalist Papers. Even as Publius begins his address to fellow Americans, he reminds them that the world is watching. The suc- cess or failure of the American experiment in self-rule, says Pub- lius, might well determine the fate of republican government for all humanity. In this belief Publius was hardly unique. Indeed, he notes that the importance of the American experiment for the rest of the planet "has been frequently remarked."E ven in 1787, this idea was very old. We need only recall grade-school civics: the Pu- ritans who began arriving in America in the early seventeenth cen- tury sought to establish a New England that would serve as a model not just for the Old England, but for the entire Old World. Nor was this idea limited to the generations that founded the colonies and the Constitution. Consider, for example, the words of Abraham Lincoln during the American Civil War. In his second Annual Message to Congress in 1862, Lincoln self-consciously de- fined the meaning of America's domestic schism in global terms: t Professor of Law, Yale University. 1 Federalist 1 (Hamilton), in Clinton Rossiter, ed, The Federalist Papers 33 (New Am Library, 1961). 483 484 The University of Chicago Law Review [58:483 "We say we are for the Union. The world will not forget that we say this. . . . We shall nobly save, or meanly lose, the last, best hope of earth."2T o the same effect was his Gettysburg Address: "Now we are engaged in a great civil war, testing whether [our] nation or any nation . . . conceived [in liberty and] dedicated [to equality] can long endure. . . . The world [cannot] forget what [American soldiers] did here [so] that government of the people, by the people, for the people, shall not perish from the earth."3 In this essay, I propose that we take Publius and Lincoln at their word, and consider some lessons that the New World experi- ment in republican government can offer to an Old World in the pangs of political rebirth. I do not mean to suggest that the Ameri- can tradition merits full-fledged replication abroad. Nor is such replication likely; the draft constitutions of most Eastern Euro- pean countries rightly reflect the countries' own traditions, and those of Western Europe, at least as much as they reflect the American experience. I simply suggest that the American experi- ence does have some valuable lessons to offer as Eastern Europe goes through the process of constitution-making. I despair of any hope of comprehensiveness-the topic is far too vast, and my knowledge far too small. I therefore propose to limit my remarks to three areas in which the American Constitu- tion is generally considered to have made distinctive contributions and to have enjoyed considerables uccess. I shall examine the ways in which the United States Constitution has established an ex- tended republic based on democraticp rinciples;a unique system of power-sharingb etween center and periphery (federalism);a nd ci- vilian supremacy over the military. In the course of examining these three interrelated-or so I shall argue-topics, I shall place considerable emphasis on the early American experience for two reasons. First, although late twentieth-century Eastern Europeans can learn much from their contemporaryA merican counterparts, and vice versa, the effort now underway in Eastern Europe to found the right traditions and frame the right legal structures raises distinctive issues of founding and framing, issues impor- tantly illuminated by America'se arly Founders and Framers.S ec- ond, several of the lessons from the early Americane xperiencem ay prove relevant today at home as well as abroad-and yet are in danger of being forgotten on both sides of the Atlantic. 2 Roy P. Basler, ed, 5 The Collected Works of Abraham Lincoln 537 (Rutgers, 1953). 3 7 id at 23. 1991] New World Lessons 485 Although my discussion shall make regular reference to the text of our constitution, we must remember that the document that emerges at the end of a constitution-making process is just that-a piece of paper. It cannot guarantee liberty and security unless it is first designed with a keen awareness of the likely threats to these two aims, and then executed and enforced over a period of many years by individuals who scrupulously respect its architecture and purposes. As we shall see, geography and history forge constitutions every bit as much as the framers who put pen to paper and the ratifiers who formally turn words into law. I. AN EXTENDED DEMOCRATIC REPUBLIC The American Constitution was absolutely novel in attempting to extend republican government over an expansive geographic area-truly, across a continent.4 Previous historical examples of self-governing societies were much more geographicallyl imited, the classic examples being the early Greek city-states and pre-imperial Rome. Orthodox political theorists in the 1780s, represented in America by the Anti-Federalists, argued that this was no accident. Democracy, they argued, was inherently incapable of being ex- tended across a vast realm.6 Most constitutional scholars today are aware of this contro- versy. They are also aware of two of Publius's arguments against Anti-Federalist orthodoxy. First, Hamilton argued in Federalist 9 that the work of "the celebrated Montesquieu"6a ctually supported the Anti-Federalists far less than they supposed, for Montesquieu had suggested that a "confederate republic" could avoid some of the geographic limitations inherent in simple democracies.7 Sec- ond, and more familiar today, Madison built on the ideas of David Hume8 by arguing in Federalist 10 that an extended republic was Not all Framers envisioned that their new nation would stretcfi to the Pacific; yet virtually all did foresee that the nation would grow westward to include, for example, the old Northwest Territory. The Constitution provided for the admission of new states, but clearly suggested that new states would develop through the addition of new territoryr ather than through merger or division of existing states, which Article IV forbids without the consent of the states concerned.T hus, the clause about new states was immediatelyf ollowed by language discussing territories. US Const, Art IV, ? 3. 6 For a representatives ample of Anti-Federalistt hought, see Cecilia Kenyon, ed, The Antifederalists (Bobbs-Merrill,1 966). 6 The phrase is Madison's.F ederalist 47 (Madison),i n Rossiter, ed, The Federalist Pa- pers at 301 (cited in note 1). 7 Federalist 9 (Hamilton), in id at 74. 8 See Douglass Adair, Fame and the Founding Fathers 93-106 (Norton, 1974); Gary Wills, Explaining America: The Federalist 223-30 (Doubleday, 1981). 486 The University of Chicago Law Review [58:483 more likely to control factionalism, the characteristicv ice of self- governing societies.9 A. Publius's Forgotten Vision What is striking, however, is that scholars today are generally unaware of Publius's earlier and most basic argument against the Anti-Federalists,w hich I call the "geostrategic"a rgument.T he en- tire introductorys ection of The Federalist Papers was designed to address head-on the Anti-Federalist orthodoxy about geography and democracy;F ederalists 9 and 10 came onto the scene relatively late. What was Publius's argument for Union before he finally reached 9 and 10? Distilling the analysis of Federalists 4 through 8, I would paraphrase10th e argument as follows: Rampant despotism reigns over almost all of the Euro- pean continent in 1787, yet England is relatively free.1 Why? In part, no doubt, because of the magnificenceo f the common law, and the glorious English Constitution,b ut also because of England's unique "insular" condition.'2 As an island, she is protected from the military depredations of her neighbors by the English Channel. So long as Britannia maintains a strong navy and rules the waves (remember 1588), she need not overly concern herself with the horriblep rospect of invasion.13 Navies, moreover,a re relatively defensive creatures that can- not easily be turned upon Englishment o impose domestic tyr- anny.'4 Large standing armies are another story-the story, indeed, of tyranny. Yet regimes on the continent of Europe may well require such armies to defend land borders against invasion.16T ragically, land borders often lead to a race to the 9 Federalist1 0 (Madison),i n Rossiter,e d, The Federalist Papers at 82-83 (cited in note 1). 10 I have chosen to paraphraseh ere in ordert o save the reader'st ime. I of course urge all interested readers to read Federalists 4 through 8-especially 8-for themselves. To make things easier, I have liberally seasoned my paraphrasew ith page citations. 1 See especiallyF ederalist8 (Hamilton),i n Rossiter,e d, The Federalist Papers at 66- 71 (cited in note 1). 1 Id at 70. 18 Id ("An insular situation, and a powerfulm arine, guarding[ Great Britain] against the possibility of foreign invasion, supersedet he necessity of a numerousa rmy within the kingdom."). 14 Id ("The militarys tate becomese levated above the civil.");s ee also id at 66-68 (link- ing "standinga rmies"a nd loss of "liberty"). 15 See generallyF ederalist 8 (Hamilton);s ee also Federalist5 (Jay), in id at 51 ("bor- dering nations [are] always ... either involved in disputes and war, or live in the constant apprehensiono f them") (emphasisi n original). 1991] New World Lessons 487 bottom in which a single ambitious regime arming itself for military adventurism forces each of its neighbors to build up its army to deter and (if necessary) repel invasion.16 But armies beget strong executives to lead them, and the combination begets domestic tyranny. Unlike navies, armies can easily be used not just to thwart invaders, but to crush domestic liberty.17T he task for Americans, then, is to struc- ture our affairs to avoid the general fate of the European Con- tinent,18a s the English have done with a God-given moat (the Channel) and the Swiss with a God-given rampart (the Great Wall of the Alps).19 The existing Articles of Confederation have proved ut- terly unworkable; the existing confederation is de facto dis- solved.20S uppose we were to replace the Confederation with thirteen separate nations, each with land borders with its neighbors, free to arm itself without limit. Each nation-state would undoubtedly raise an army, ostensibly to protect itself against Indians or British, French, or Spanish outposts, but also to intimidate its neighbors. We would then recreate conti- nental Europe and the near-universal tyranny that character- izes that continent.21T o opt instead for a system of three or four smaller confederacies (perhaps a Northern, a Southern, and one or two mid-Atlantic leagues) would not be much bet- ter,22 especially given the tremendous conflict that will pre- dictably arise concerning control of the West.23I f, however, an unum can be forged from pluribus, America will resemble England.24T he three-thousand mile wide Atlantic ocean will be America's moat, for it will protect her against replication of, and subjugation by, the militarism of the European Conti- nental powers. We can rely primarily on a modestly sized navy. 1Federalist 8 (Hamilton), in id at 68. 17 Id. 8Id at 70-71. ' Federalist 19 (Madison and Hamilton), in id at 133 (Swiss "are kept together by the peculiarity of their topographicalp osition"). 20 Federalist 1 (Hamilton), in id at 37; Federalist 8 (Hamilton), in id at 71. 21 See generally Federalist 8 (Hamilton). 22 Federalist 2 (Jay), in id at 37-38, 41; Federalist 3 (Jay), in id at 43; Federalist4 (Jay), in id at 48-49; Federalist 5 (Jay), in id at 51-53; Federalist 8 (Hamilton), in id at 71. " Federalist 7 (Hamilton), in id at 60-62 ("Territoriald isputes have at all times been found one of the most fertile sources of hostility among nations .... This cause would exist among us in full force. We have a vast tract of unsettled territory."). 24 Federalist 5 (Jay), in id at 50-51; see generally Federalist 8 (Hamilton). 488 The University of Chicago Law Review [58:483 To be sure, the new nation might require a very small army to fortify the South and West against Indians, and the North against Canada, but none of these land-borderingr e- gimes can truly threaten the united states, or provide the president a pretext to create a dangerously large standing army.25U nless, of course, one of the land-borderingr egimes received strong support from the Old Powers in Europe, whom Americans must discourage from strengthening their footholds in the New World.26A nd once again, united states would be more likely to discourage European adventurism, disabling the Old Powers from playing state off against state in classic divide-and-conquerf ashion.27 Here, then, is the first and most elaborate of Publius's three main responses to the Anti-Federalists. It is also the response in which the triumvirate sharing the mask of Publius-John Jay, Al- exander Hamilton, and James Madison-most clearly spoke with one voice. Hamilton, for example, had expressed real doubts in his notes at the Philadelphia convention about the line of argument that eventually became Madison's Federalist 10,28 whereas Madison's June 29 speech at Philadelphia almost perfectly antici- pated Jay's and Hamilton's geostrategica rgumentf or the Union in Federalists 4 through 8.29M adison returned to this theme in Fed- eralist 41, where he carefully cross-referenceda nd elaborated the geostrategic argument of the early Federalist Papers.30 Others shared Publius's geostrategic vision. The geostrategic argumentw as a dominant strand in the pro-ratifications peeches of James Wilson, perhaps the most farsighted Federalist theorist.31 So too, Benjamin Franklin, the grand old man of the Philadelphia convention, invoked the vision in private correspondences hortly after the convention adjourned.32N or is there any doubt that George Washington, the Federalists' political standard-bearer, 2" Federalist 4 (Jay), in id at 49. 26 Id; Federalist 5 (Jay), in id at 53; Federalist 7 (Hamilton),i n id at 65-66. 27 See sources cited in note 26. 28 Max Farrand, ed, 1 The Records of the Federal Convention of 1787 145-47, 308-09 (Yale, rev ed 1937). 29 Id at 463-65. 3s Federalist 41 (Madison),i n Rossiter, ed, The Federalist Papers at 258-61 (cited in note 1). 31 See Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 527-29 (Taylor & Maury, 1854) (remarks of James Wilson at Pennsylvania ratifying convention in 1787). 32 Charles Warren, The Supreme Court and the Sovereign States 145-46 n 41 (Princeton, 1924). 1991] New World Lessons 489 shared this vision. As a surveyor and general, Washington instinc- tively grasped geography and military strategy much better than he did abstruse debates about Montesquieu and Hume. Indeed, Washington devoted major portions of his Presidential Farewell Address (composed with help from each member of the Publian triumvirate) to the implications of Publian geostrategy.33 B. The Early American Experience The geostrategic argument provides a better window onto the American political and legal landscape from 1788 to 1865 than does the now-canonical Federalist 10. If, as Federalist 10 asserts, states were indeed widely understood in 1789 as more threatening to liberty than was the national government, then surely much of the original Bill of Rights should have applied against the states. So Madison urged in the first Congress, only to see the Senate eliminate all of his proposed restrictions on state governments.34 The Bill of Rights restricted only the federal government, the gov- ernment with control of the ever-dangerousa rmy, as Chief Justice John Marshall made clear in Barron v Baltimore.36 And lest there be any doubt, the Second and Third Amendments confirmed American jealousy against the army36w hile saying nothing about the navy-precisely in keeping with Publius's geostrategic argument.37 President Jefferson also offered a vision of the Union far closer to the geostrategic one than to that of Federalist 10. He regularly described the raison d'etre of the federal government as defense and international affairs, utterly ignoring Federalist 10's argument about the need to protect individuals from tyrannical factionalism s3 See Richard B. Morris, ed, Great Presidential Decisions 29-47 (Lippincott, rev ed 1967). [E]very part of our country ... must derive from union an exemption from those broils and wars between themselves which so frequently afflict neighboringc ountries not tied together by the same governments .... [L]ikewise, they will avoid the necessity of those overgrownm ilitary establishmentsw hich, under any form of government,a re in- auspicioust o liberty, and which are to be regardeda s particularlyh ostile to republican liberty. Id at 37-38. 34 See Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L J 1131 (1991). 32 US 243 (1833). S6 See Amar, 100 Yale L J at 1162-75 (cited in note 34). S7 US Const, Amend II ("A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.");U S Const, Amend III ("No Soldier shall, in time of peace be quarteredi n any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribedb y law."). 490 The University of Chicago Law Review [58:483 within individual states.38 Jefferson's actions spoke even louder than his words when in 1803 he knowingly betrayed his own can- ons of constitutional construction to purchase Louisiana from France in keeping with the geostrategys ketched out in Federalists 4 through 8.39T he Monroe Doctrine promulgatedi n 1823 gave fur- ther voice to this approach.40 Consider also the most important and insightful nineteenth- century commentary on the Constitution, Joseph Story's 1833 treatise: It has been proudly said by a learned commentator on the laws of England [William Blackstone], that the royal navy of England hath ever been its greatest defence and ornament. It is its ancient and natural strength; the floating bulwarko f the island; an army, from which, however strong and powerful, no danger can be apprehended to liberty. Every American citizen ought to cherish the same sentiment, as applicable to the navy of his own country.41 Finally, let us revisit Lincoln's constitutional brief against se- cession in his First Inaugural Address. Most twentieth-century readers tend to focus on those passages in which Lincoln elevates national majority rule over state majority rule, in perfect keeping with the logic of Federalist 10, while ignoring other, more geostra- tegic language: Physically speaking, we cannot separate. We cannot remove our respective sections from each other, nor build an impassa- ble wall between them. A husband and wife may be divorced, and go out of the presence, and beyond the reach of each other; but the different parts of our country cannot do this. They cannot but remain face to face; and intercourse,e ither amicable or hostile, must continue between them. Is it possi- 38 See, for example,T homas Jefferson,L etter to James Madison (Feb 8, 1786), in Ju- lian P. Boyd, ed, 9 The Papers of Thomas Jefferson 264-67 (Princeton, 1954); Letter to James Madison( Dec 16, 1786), 10 id at 602-06;L etter to EdwardC arrington( Aug 4, 1787), 11 id at 678-80. S9 See Morris,e d, Great Presidential Decisions at 54-65 (cited in note 33). 40 Id at 82-99. Publius foreshadowedt he MonroeD octrinei n a numbero f passages.S ee, for example, Federalist 4 (Jay), in Rossiter, ed, The Federalist Papers at 48-50 (cited in note 1); Federalist5 (Jay), in id at 52-53;F ederalist7 (Hamilton),i n id at 64-66;F ederalist 16 (Hamilton),i n id at 114;F ederalist1 8 (Madisona nd Hamilton),i n id at 124, 127;F eder- alist 19 (Madisona nd Hamilton), in id at 130-31;F ederalist4 1 (Madison),i n id at 258-59; Federalist 85 (Hamilton),i n id at 521. 41 Joseph Story, 3 Commentarieso n the Constitution of the United States ? 1191 at 78-79 (Hilliard,G ray, 1833) (citation omitted; emphasis added). New WorldL essons 491 1991] ble then to make that intercourse more advantageous,o r more satisfactory, after separation than before? Can aliens make treaties easier than friends can make laws?42 Once we begin to attune ourselves to geostrategy, we can hear in Lincoln's voice a whole set of implied concerns that we might otherwise miss. After secession, might not antebellum strife about which section would populate and control the resource-rich West become even bloodier and more dangerous? Would not Southern control of the mouth of the Mississippi River give it an economic stranglehold over the entire region from the Appalachians to the Rockies? Given that Northern states would no longer be bound by the Fugitive Slave Clause, would not increasing numbers of slaves flee northward?W ould not Northern unwillingness to return these slaves constitute a possible casus belli? What if the South tried to staunch the outflow of slaves by blanketing the Mason-Dixon line with security forces and slave-catching patrols? Suppose the North responded by fortifying its side of the line with more soldiers? Might the Old Powers of Europe seek to "mediate" or otherwise intervene? And so on. C. The Modern American Experience It is not surprising that after a century of marginalization,43 Federalist 10 was rediscovered and made central to our under- standing of the Constitution. After the adoption and gradual judi- cial invigoration of the Fourteenth Amendment, who could miss the important constitutional principle of federal protection of local minorities against their own state governments? And had not the Civil War itself-understood ex post as a War Against Slavery, rather than ex ante as a War For (Geographic)U nion-shown the national government to be the last, best hope of domestic liberty, as Federalist 10 had prophesied? What is remarkable,h owever, is the deep obscurity into which Publius's earlier geostrategic vision has fallen, at least in law 42 Basler, ed, 4 The Collected Workso f AbrahamL incoln at 269 (cited in note 2) (em- phasis in original). 4S Douglass Adair has written that it was not until 1913, 125 years [after its initial publication], that Charles A. Beard made this particular essay famous for students of the United States Constitution. Before [1913], practicallyn o commentatoro n The Federalist or the Constitution,n one of the biographerso f Madison, had emphasized Federalist 10 as of special importance for understandingo ur 'more perfect union'.... Adair, Fame and the Founding Fathers at 75-76 (cited in note 8).