At Law & Liberty, John McGinnis: Land, Law, and Constitutional Overreach (reviewing, somewhat unfavorably, The Making and Breaking of the American Constitution: A Thousand-Year History by Mark Peterson). From the introduction:
A certain kind of modern history book tends to combine two flaws. First, in its eagerness to overturn received wisdom, it exaggerates the importance of a factor it has newly brought to light. Second, it uses its excavation of the past to comment on the present, usually in ways that echo the familiar talking points of contemporary left-liberal progressivism. When the subject has a constitutional dimension, the result is almost certain to include an ill-informed dismissal of originalism, as Harvard historian Jill Lepore’s We the People: A Constitutional History of the United States did. Our left-leaning elites, like those who judge the Pulitzers, encourage this habit by awarding prizes to such books.
The Making and Breaking of the American Constitution: A Thousand-Year History too often conforms to the pattern. It is unfortunate because, by overstating his case and offering a gratuitously ideological conclusion, Mark Peterson, a Yale University historian, detracts from his genuinely new and thoughtful perspective.
Peterson’s central claim is that the United States Constitution was motivated by the need for a charter that could more effectively distribute the new lands of the West, thereby strengthening both the finances and the political power of the fledgling republic. The distribution of land and population has played an important role ever since. He traces the importance of land as the financial underpinnings of the state back to the Domesday Book. William the Conqueror’s famous survey of landownership in England, Peterson argues, was a constitutional act that created a system of taxation to support the crown. Magna Carta, in turn, has to be understood against the background of that act, because that first charter of English liberty expressed in writing “the principle that any taxation beyond those perpetual obligations of landholding due annually to the king and documented in the Domesday Book required the consent of the freeman who would be burdened by the additional exactions.”
Following these Norman roots, Peterson views land distribution as equally central to American constitutionalism. The Articles of Confederation were inadequate because they did not effectively secure the distribution of new territories either to new states as sovereigns or to individuals as owners. This was a particular problem for the new republic because government land sales were a source of financing. He shows that the Northwest Ordinance, passed under the Articles, began the process of centralizing land distribution in the national government. But he argues that it was only the creation of a more powerful state, fully vested with the authority to admit states and dispose of property under Article IV of the Constitution and the executive power to control “the immense national domain generated by the terms of the Treaty of Paris” that made this process effective. Thus, according to Peterson, the United States created a modern Domesday machine, a mechanism for bringing vast new territories and the wealth they would provide as an instrument of building America as a modern nation-state.
Peterson is certainly persuasive that colonists were interested in expanding the territory of the United States, in part because of the commercial opportunities it would bring. For instance, once the new Constitution was ratified, George Washington wrote he had “no doubt of obtaining the price I have fixed on the land, and that in a short time.” But Peterson exaggerates the importance of this consideration, especially when measured against the other defects contemporaries saw in the Articles. He even states, “Of the three major challenges to effective national authority, only the problem of Western lands could not be solved under the Articles.”
Those living under the Articles thought otherwise. Their greatest articulated concern was that the Articles did not provide a sufficient structure for national defense, depending on the requisition of troops from the states, without any provision for a national army or an executive in charge of it and of diplomatic affairs. They were also greatly concerned about tariffs imposed by states on one another, which reduced economic prosperity. Peterson’s thesis, in its strong form, has a structural resemblance to Charles Beard’s more implausible claim that the Constitution was motivated by the interests of rich bondholders in controlling the democratic impulses of the nation, because it suggests that the real explanation for the Constitution has little to do with those provided by its enactors.
For what it’s worth, I would say that the single greatest motivator of the Convention was the perceived need for federal revenue through national tariffs and excise taxes, so the national government would not have to rely on the contributions of the states. (This in turn related in significant part to concerns over national defense.) Efforts to amend the Articles in this direction had failed, contributing to the idea that a new start was needed. (But also, different members of the founding generation had different motivations, so trying to find a single greatest motivation seems an oversimplification.)
Also for what it’s worth, what became the territory or property clause of Article IV was not part of the initial Virginia Plan presented at the outset of the Convention, or even part of the Committee of Detail draft that introduced the list of powers that became Article I, Section 8. It was added from the Convention floor, initially by Madison, as revised and extended by Gouverneur Morris. (See my summary in this article on power in the territories, pp 532-35.) So I’m a little doubtful how central it could have been. But I look forward to reading the book, and with my interest in territories I’m of course open to the idea that it was central.
Posted at 6:24 AM