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.' 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." Even 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. I Federalist 1 (Hamilton), in Clinton Rossiter, ed, The FederalistP apers 33 (New Am Library, 1961). 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."'2 To 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 considerable success. I shall examine the ways in which the United States Constitution has established an ex- tended republic based on democratic principles; a unique system of power-sharing between center and periphery (federalism); and 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 contemporary American 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's early Founders and Framers. Sec- ond, several of the lessons from the early American experience may 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 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 geographically limited, 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.5 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"6 actually 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 Hume' by arguing in Federalist 10 that an extended republic was Not all Framers envisioned that their new nation would stretci 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 territory rather than through merger or division of existing states, which Article IV forbids without the consent of the states concerned. Thus, the clause about new states was immediately followed by language discussing territories. US Const, Art IV, § 3. For a representative sample of Anti-Federalist thought, see Cecilia Kenyon, ed, The Antifederalists (Bobbs-Merrill, 1966). ' The phrase is Madison's. Federalist 47 (Madison), in Rossiter, ed, The FederalistP a- pers at 301 (cited in note 1). Federalist 9 (Hamilton), in id at 74. See Douglass Adair, Fame and the Founding Fathers 93-106 (Norton, 1974); Gary Wills, Explaining America: The Federalist 223-30 (Doubleday, 1981). The University of Chicago Law Review [58:483 more likely to control factionalism, the characteristic vice of self- governing societies." 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, which I call the "geostrategic" argument. The en- tire introductory section of The FederalistP apers was designed to address head-on the Anti-Federalist orthodoxy about geography and democracy; Federalists 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 paraphrase0 the argument as follows: Rampant despotism reigns over almost all of the Euro- pean continent in 1787, yet England is relatively free." Why? In part, no doubt, because of the magnificence of the common law, and the glorious English Constitution, but also because of England's unique "insular" condition.12 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 horrible prospect of invasion.13 Navies, moreover, are relatively defensive creatures that can- not easily be turned upon Englishmen to impose domestic tyr- anny.14 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.'5 Tragically, land borders often lead to a race to the Federalist 10 (Madison), in Rossiter, ed, The FederalistP apersa t 82-83 (cited in note 1). 10I have chosen to paraphrase here in order to save the reader's time. 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 paraphrase with page citations. 11 See especially Federalist 8 (Hamilton), in Rossiter, ed, The FederalistP apers at 66- 71 (cited in note 1). Id at 70. 12 Id ("An insular situation, and a powerful marine, guarding [Great Britain] against 13 the possibility of foreign invasion, supersede the necessity of a numerous army within the kingdom."). 14 Id ("The military state becomes elevated above the civil."); see also id at 66-68 (link- ing "standing armies" and loss of "liberty"). 15 See generally Federalist 8 (Hamilton); see also Federalist 5 (Jay), in id at 51 ("bor- dering nations [are] always... either involved in disputes and war, or live in the constant apprehension of them") (emphasis in original). 1991] New World Lessons 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.17 The task for Americans, then, is to struc- ture our affairs to avoid the general fate of the European Con- tinent,18 as 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). 9 The existing Articles of Confederation have proved ut- terly unworkable; the existing confederation is de facto dis- solved.20 Suppose 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.2 To 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.2 If, however, an unum can be forged from pluribus, America will resemble England.24 The 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. 16 Federalist 8 (Hamilton), in id at 68. 17 Id. Id at 70-71. 19 Federalist 19 (Madison and Hamilton), in id at 133 (Swiss "are kept together by the peculiarity of their topographical position"). 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; Federalist 4 (Jay), in id at 48-49; Federalist 5 (Jay), in id at 51-53; Federalist 8 (Hamilton), in id at 71. 23 Federalist 7 (Hamilton), in id at 60-62 ("Territorial disputes 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). 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-bordering re- gimes can truly threaten the united states, or provide the president a pretext to create a dangerously large standing army.25 Unless, of course, one of the land-bordering regimes received strong support from the Old Powers in Europe, whom Americans must discourage from strengthening their footholds in the New World.26 And 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-conquer fashion. 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 geostrategic argument for the Union in Federalists 4 through 8.29 Madison returned to this theme in Fed- eralist 41, where he carefully cross-referenced and elaborated the geostrategic argument of the early Federalist Papers.30 Others shared Publius's geostrategic vision. The geostrategic argument was a dominant strand in the pro-ratification speeches 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 correspondence shortly after the convention adjourned.2 Nor is there any doubt that George Washington, the Federalists' political standard-bearer, 25 Federalist 4 (Jay), in id at 49. 26 Id; Federalist 5 (Jay), in id at 53; Federalist 7 -(Hamilton), in id at 65-66. 27 See sources cited in note 26. 25 Max Farrand, ed, 1 The Records of the Federal Convention of 1787 145-47, 308-09 (Yale, rev ed 1937). 2, Id at 463-65. 30 Federalist 41 (Madison), in Rossiter, ed, The Federalist Papers at 258-61 (cited in note 1). '" 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). 2 Charles Warren, The Supreme Court and the Sovereign States 145-46 n 41 (Princeton, 1924). 1991] New World Lessons 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.3,4 The Bill of Rights restricted only the federal government, the gov- ernment with control of the ever-dangerous army, as Chief Justice John Marshall made clear in Barron v Baltimore.5" And lest there be any doubt, the Second and Third Amendments confirmed American jealousy against the army36 while saying nothing about the navy-precisely in keeping with Publius's geostrategic 37 argument. 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 33 See Richard B. Morris, ed, Great PresidentialD ecisions 29-47 (Lippincott, rev ed 1967). [Elvery part of our country... must derive from union an exemption from those broils and wars between themselves which so frequently afflict neighboring countries not tied together by the same governments .... [L]ikewise, they will avoid the necessity of those overgrown military establishments which, under any form of government, are in- auspicious to liberty, and which are to be regarded as particularly hostile to republican liberty. Id at 37-38. ", See Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L J 1131 (1991). 35 32 US 243 (1833). 'e See Amar, 100 Yale L J at 1162-75 (cited in note 34). a 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."); US Const, Amend IH ("No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."). The University of Chicago Law Review [58:483 within individual states. 8 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 geostrategy sketched out in Federalists 4 through 8." The Monroe Doctrine promulgated in 1823 gave fur- ther voice to this approach.0 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 bulwark of 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, either amicable or hostile, must continue between them. Is it possi- 38 See, for example, Thomas Jefferson, Letter 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; Letter to Edward Carrington (Aug 4, 1787), 11 id at 678-80. 39 See Morris, ed, Great Presidential Decisions at 54-65 (cited in note 33). "0 Id at 82-99. Publius foreshadowed the Monroe Doctrine in a number of passages. See, for example, Federalist 4 (Jay), in Rossiter, ed, The Federalist Papers at 48-50 (cited in note 1); Federalist 5 (Jay), in id at 52-53; Federalist 7 (Hamilton), in id at 64-66; Federalist 16 (Hamilton), in id at 114; Federalist 18 (Madison and Hamilton), in id at 124, 127; Feder- alist 19 (Madison and Hamilton), in id at 130-31; Federalist 41 (Madison), in id at 258-59; Federalist 85 (Hamilton), in id at 521. "' Joseph Story, 3 Commentaries on the Constitution of the United States § 1191 at 78-79 (Hilliard, Gray, 1833) (citation omitted; emphasis added). 1991] New World Lessons ble then to make that intercourse more advantageous, or 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? Would 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,3 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) Union-shown the national government to be the last, best hope of domestic liberty, as Federalist 10 had prophesied? What is remarkable, however, is the deep obscurity into which Publius's earlier geostrategic vision has fallen, at least in law 4' Basler, ed, 4 The Collected Works of Abraham Lincoln at 269 (cited in note 2) (em- phasis in original). "I 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], practically no commentator on The Federalisto r the Constitution, none of the biographers of Madison, had emphasized Federalist 10 as of special importance for understanding our 'more perfect union'. ... Adair, Fame and the Founding Fathers at 75-76 (cited in note 8). The University of Chicago Law Review [58:483 schools. For the issues raised by Federalists 4 through 8 and 41 have hardly disappeared, even though military technology has changed drastically (especially with the advent of air power). Con- sider only three examples from the last half-century. First, had the Pacific "moat" not been so wide, bombs might have fallen on the mainland rather than on Pearl Harbor. The United States in World War II was unique among the Great Powers in having virtu- ally no destruction occur on its own soil. Second, the Cuban Mis- sile Crisis once again illustrated the unique status of the United States in keeping hostile land-based missiles out of our hemi- sphere. The Monroe Doctrine was alive and well in 1962. Third, Star Wars technology in the 1980s and 1990s again illustrates America's unique geostrategic position. The system only makes sense-that is, if it makes sense at all-because land-based mis- siles aimed at United States targets must travel across the Atlantic and Pacific Oceans. Europeans are understandably less enthusias- tic, for SDI offers them relatively little security so long as missiles remain throughout Europe, East and West.44 Why has twentieth-century constitutional scholarship tended to ignore Publius's. geostrategic vision?45 In part, perhaps, it is be- cause we may now think that the vision reflects imperialistic, if not genocidal, attitudes towards Native Americans in the West. The Monroe Doctrine may share more than initials with the American idea of Manifest Destiny that took shape in the nineteenth cen- tury. Perhaps modern-day discomfort and guilt among mainstream constitutional theorists has led them to avert their eyes from geo- strategic imperialism, just as they have downplayed the role of 46 slavery at the Founding. Another possible explanation for the marginalization of Pub- lius's geostrategic vision is that it is less than obvious in the text of the Constitution. Yet it is there. Article I, § 10 prevents states from keeping troops or ships of war without congressional consent, and § 8 prevents Congress from making long-term appropriations 44 The issue of submarine-based missiles raises complexities far beyond the scope of my analysis here. 4' The work of my colleague Harold Koh is an important exception to this generaliza- tion. See, for -example, Harold Koh, The National Security Constitution 77 (Yale, 1990) ("The birth of the National Security Constitution did not occur within a geopolitical vac- uum. America's geographical separation from the rest of the world [has] figured... promi- nently in the development of America's constitutional traditions."). See generally id at 67- 100. 4, For an excellent discussion of the importance of slavery at Philadelphia, see Ray- mond T. Diamond, No Call to Glory: Thurgood Marshall's Thesis on the Intent of a Pro- Slavery Constitution, 42 Vand L Rev 93 (1989).