America’s Exceptional Nationalism

We Must Return to Popular Sovereignty

This is a slightly longer and edited version of a talk recently given at the Intercollegiate Studies Institute’s American Politics and Government Summit.

American nationalism is still a topic of ongoing debate. Yet the fact of nationalism was never doubted by the American founders, even though the exact nature of that nationalism was hotly contested. Although current conceptions of nationalism are burdened by nationalist developments in the nineteenth- and twentieth-centuries, the founders were free from such concerns. This paper argues that the founding generation conceptualized nationalism within an early modern Law of Nations framework, but that the particular form of American nationalism that came out of the Philadelphia Convention is best described as a partially-consolidated, confederate, and covenantal nation.

The Law of Nations

In his groundbreaking 1625 work, De Jure Belli ac Pacis (The Rights of War and Peace), Hugo Grotius had defined the political commonwealth (civitas) as “a compleat Body of free Persons, associated together to enjoy peaceably their Rights, and for the common Benefit.”¹ Grotius represented this political body as an individual with the same rights and duties as all men. Those rights and duties, for Grotius, were part of a universal morality or a minimal natural law.² Grotius is generally credited with inventing modern international law (pre-WWI), and after him came a string of natural law philosophers who wrote on the ius naturales and the ius gentium with great care and erudition: Samuel Pufendorf’s Of the Law of Nature and Nations (1672), Jean-Jacques Burlamaqui’s The Principles of Natural and Politic Law (1747-51), and Emer de Vattel’s The Law of Nations (1758) (among many others).

The American founders were well-read in these works and familiar with the variety of natural law arguments as descriptive of nations and applicable to international relations. George Washington was known to have an overdue library copy of Vattel’s book, and James Wilson repeatedly refers to Grotius, Pufendorf, and Vattel in his writings.³ Vattel had offered a similar understanding of political nations as those before him: “nations or states are bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength.” The nation, Vattel argued, becomes a “moral person,” who “possesses an understanding and a will peculiar to herself, and is susceptible of obligations and rights.” To understand what rights and duties impinge upon political bodies, one must understand the natural law of mankind in general: “as men are subject the laws of nature … the entire nation, whose common will is but the result of the united wills of the citizens, remains subject to the laws of nature, and is bound to respect them in all her proceedings.” This discipline was known as the “law of nations,” which Vattel defined as “the science which teaches the rights subsisting between nations or states, and the obligations corresponding to those rights.”⁴

In following the natural lawyers and the Law of Nations, the American founders made two central claims: first, that nations as political entities in themselves (not just the persons within them) are subject to the natural moral law as determined by God and known to man by reason, inclination, and moral sense; and second, that the nation is the highest level of political organization men can achieve.⁵ While seventeenth- and eighteenth-century political philosophers all believed that confederacies had existed at different times in various parts of the world, a confederacy was a loose alliance or treaty between sovereign nations. Unlike modern international law (post-WWII), commonly referred to as the Liberal International Order, there was no supreme political authority or arbiter among the nations of the world.⁶ Thus, like men prior to the formation of civil government, nations always exist in a state of nature in relationship to each other. This necessitates a national foreign policy that will protect one’s people against aggressors and enforce the natural law between nations (i.e., the executive power of the law of nature). The result is a multipolar world of nations in separate but equal stations that seeks to balance international control between competing great powers.

Much more could be said about the Law of Nations, but the point is simply to properly situate the founding generation within the long and venerable Western tradition of the ius gentium. Their conception of republics and nations originates from this rich tradition and not from later nineteenth-century Hegelian philosophy or the rules-based international order of the twentieth-century.

Partially-Consolidated

The creation of a nation is difficult on its own, but the Americans were dealing with added complexities. When it became apparent by May 1776 that independence from Great Britain was inevitable, the Continental Congress adopted a resolution instructing the colonial states to begin rewriting their colonial charters into state constitutions. The next month, the Congress established an intercolonial committee to begin drafting a constitution for the united colonies.⁷ Thus, fourteen political constitutions were being simultaneously written, and these political entities and their relationship to each other were articulated and debated.

By 1781, the Articles of Confederation were ratified and took effect. The assumption of the Articles was the following: each state was an independent and sovereign nation with its own constitution (fundamental law) and government (assembly, governor, courts, etc.). No two states were the same, as each represented a different people with unique traditions, customs, and (mostly Protestant) religious convictions.⁸ The Articles sought to maintain the independent sovereignty of each state, even while uniting them all into a “firm league of friendship” and “perpetual Union.” Technically, the type of political entity the Articles created was a confederacy, or what Montesquieu (whom Hamilton quotes and draws from in Federalist no. 9) called a “federal republic.” In The Spirit of the Laws, Montesquieu had defined this form of political union as “an agreement by which many political bodies consent to become citizens of the larger state that they want to form. It is a society of societies that make a new one, which can be enlarged by new associates that unite with it.”⁹ The Articles declared that “each state retains its sovereignty, freedom, and independence” as well as every power not “expressly delegated to the United States, in Congress assembled.” What the states agreed to delegate were matters urgent and common to them all: “their common defense, the security of their liberties, and their mutual and general welfare.”

While good on paper, between 1781 and 1787, the American experience proved that the Articles were weak and unworkable. The states refused to pay taxes to Congress to fund the war effort, they reneged on war debt to foreign countries, they minted their own specie and printed worthless fiat money, and they abused their citizens’ rights and liberties. Congress had no power to enforce what had been promised through good faith and solemnly written on sacred parchments. While the Continental Congress convened the Philadelphia Convention for the express purpose of revising the Articles of Confederation to resolve these defects, the delegates in fact changed the Articles’ fundamental law, essentially producing an entirely new Constitution (which was controversial for the Anti-Federalists).

In his October 1787 reflections on the proposed constitutional plan of the Convention, Richard Henry Lee explained that “the plan proposed appears to be partly federal, but principally, however, calculated ultimately to make the states one consolidated government.” He followed that comment by asking, “how far can the states be consolidated into one entire government on free principles”? To answer this question, Lee sketched a variety of options before the Convention, commenting that “there are three different forms of free government under which the United States may exist as one nation.” The first option was “distinct republics connected under a federal head,” a continuation of the organization of the Articles. This option was clearly untenable, and Lee was frank that “not much can be said in its favor.” The problem was one of sovereignty: “the sovereignty of the nation, without coercive and efficient powers to collect the strength of it, cannot always be depended on to answer the purposes of government.” In other words, if the delegates continued with a purely federal republic among the several states, the national power would continue in its weak, ineffective, and emaciated state. The individual states would end up flying off the spokes of the wheel, either going their separate ways or joining to create sub-confederacies. The states or their confederacies would surely at some point, the founders believed, end up in violent conflict with each other.

The second option for Lee lay at the opposite extreme of a pure confederacy: to “do away with the several state governments, and form or consolidate all the states into one entire government, with one executive, one judiciary, and one legislature, consisting of senators and representatives collected from all parts of the union.” This plan Lee called the “complete consolidating plan” and urged his compatriots to “carefully consider” this form of government (both seriously, but also as an implied warning). The final option was to innovate a via media between the two extremes: “We may consolidate the states as to certain national objects, and leave them severally distinct independent republics, as to internal police generally.” This plan was known as “partial consolidation” and in Lee’s opinion it was “the only [plan] that can secure the freedom and happiness of this people.”¹⁰

Fortunately, it was the third option of a partial consolidation that the Philadelphia Convention drafted and presented to the people for ratification. On paper, the U.S. Constitution and the Articles of Confederation are similar in form: both presuppose and affirm the states as independent, sovereign republics who delegate a limited number of common, national objects to be under the sovereign authority of the national Congress. The difference was not so much in the division of authority between the states and national power, but in their respective sources of sovereignty. Under the Articles, a sovereign people created separate state constitutions; then, those states, as newly minted political entities, used their authority to create the national government. The problem was that the states could not legally delegate their authority to a higher power, since, under the Law of Nations, the highest form of political sovereignty is a nation (which the states were). The responsibility of the state governments was to the good of their respective peoples, and so they could not transfer their delegated authority to another without first gaining the consent of the people for which they existed. The Constitution sought to fix this error by eliding the state legislatures in favor of conventions of the people in the ratification process. The result was that both the state constitutions and the national constitution were the collective action of a sovereign people.¹¹

The power between the state and national constitutions was divided in the following manner. The states (through their people) relinquished sovereignty over most foreign policy issues. While the states were responsible to raise and maintain their own militias, the national Congress was solely responsible to declare war, prosecute foreign conflicts, maintain an army and navy, and make treaties. The national government also oversaw international trade and regulation, including policing piracy on the high seas. Domestically, the national power was limited to a number of critical tasks: regulating interstate commerce (effectively creating a free trade zone among the states) to prevent commercial conflict, creating a uniform currency, providing common weights and measures, punishing counterfeiting, regulating bankruptcies, overseeing patents and copyrights, and so forth. All the domestic powers granted to the national government were solely for the sake of maintaining harmony among the states. You cannot have a nation when a faction within it go to war with its other parts.

All other domestic powers were left to the state governments (Tenth Amendment), which included vast powers governing domestic life, regulating internal trade and production, legislating on moral and religious matters, and maintaining the public good and peace of each state. While today, we tend to focus all our political energy on national politics, from the view and design of the founders, most of the day-to-day governing was reserved for the states—so much so, in fact, that well after the Constitution was ratified, leading American intellectuals and politicians continued to refer to the states as being independent republics or nations (always understood as excepting those great objects the people entrusted to the national government).

A technical question arises as this point: by relinquishing power over their foreign policy, did the states lose their independent sovereignties? Could the states still be independent nations without the power to preserve themselves against external threat? Since self-preservation had long been considered the first and most urgent power a people exercise in political identity and action, could such an essential and critical task be delegated to another without the states losing their status as distinct political entities? The answer is found in Vattel, who tells us (similarly to Aristotle) that the core of political identity and nationhood is not the ability to successfully use violence against one’s adversaries or even nourish and preserve one’s body, but instead consists in the creation of a unified “moral person” from a common people and culture.¹² Since the states were still unified political entities, each with a common people and constitution, the fact that their powers of self-defense were vested in a distinct political body did not diminish them as independent sovereignties.¹³

The partial consolidation of the states into the national constitution simultaneously energized and empowered the national government to be a real government and to create one nation from among the people of the several states, while also preserving the states as unique and independent bodies politic. This balance is what we today call ‘federalism,’ and its success lay in the states and national powers respecting their distinct jurisdictions and fulfilling their responsibilities to the people.

Confederate

The federal constitutional arrangement that emerged from the Philadelphia Convention was not merely a division of political labor or power between the states and the national government.¹⁴ The state-national allocation was also one of dependence and hierarchy. This is seen in the priority given to the states and the priority given to the people of the states. First, the states as political entities were more foundational than the national government, requiring temporal precedence. As the eminent jurist, Harvard law professor, and Supreme Court associate justice Joseph Story explained in his well-known Commentaries on the Constitution of the United States, the national government could neither form nor function without the state governments existing first. Listen to Story:

The members and officers of the national government have no agency in carrying into effect the state constitutions. The members and officers of the state governments have an essential agency in giving effect to the national constitution. The election of the president and the senate will depend, in all cases, upon the legislatures of the several states; and, in many cases, the election of the house of representatives may be affected by their agency.¹⁵

For the first hundred and twenty-five years of America’s national existence (prior to the ratification of the Seventeenth Amendment in 1913 that required congressional Senators be chosen by popular election), Senators were chosen by state legislatures. Since no law passed by the House could be sent to the President until the Senate also passed it, without the Senate there can be no functional Congress. And without Congress, there are no laws for the President to sign and no laws for the Judiciary to interpret. The election of the President, as well, depended upon the Electoral College, whose Electors were determined by the state legislatures. Since the President played a pivotal role in nominating Supreme Court Justices, and since the Senate had to advise and confirm such appointees, without the President and Senate, there would be no superior court. In short, every branch of the national government—both in their initial formation, but also in their daily function—depended upon preexisting state governments. The foundation of our national constitution is found in the independent state republics. From the view of the founders, the states represented the political soul of the nation and were the source of America’s spirit, virtue, and exceptional ways of life.

The dependency relationship between the state and national governments can also be seen in studying the U.S. Constitution. In his little book, The Origins of American Constitutionalism, Donald Lutz reflected upon the hidden assumptions of the Constitution:

I discovered something that writers on American political theory had failed to tell me: there were [in fact] thirteen state constitutions in existence in 1787, and they were part of the national document. Referred to directly or by implication more than fifty times in forty-two sections of the U.S. Constitution, these state constitutions had to be read in order to understand what the document [the U.S. Constitution] said.¹⁶

Lutz’s point is profound: the U.S. Constitution presupposes the existence of the state constitutions and cannot be understood apart from them. This, in effect, makes the state constitutions part of the national constitution. The U.S. Constitution is not only incomplete, but incomprehensible and non-functional, without the state constitutions and their respective governments. This means that when the U.S. Constitution was ratified on June 21, 1788, the United States was not just governed by that Constitution—by one national constitution. No, instead, there were fourteen constitutions governing America by the time George Washington was elected as our first president in early 1789—and this number only increased as more states joined the union. The American people, therefore, were a thoroughly constitutional people. There was no part of American life that was not touched by constitutionalism: the great and large objects of national life entrusted to the national government in Washington, D.C., and the everyday, domestic matters entrusted to state and local powers. Between the state and national powers (and even in the states, between local municipal or town governments and the state government) there was an interlocking constitutionalism woven into the fabric of American life and culture.

The consequence of an interlocking federal constitutionalism is that American nationalism is American federalism: there is no national power apart from the states, nor can the national government transgress or usurp state political jurisdiction without destroying the confederate constitutional arrangement that its very existence and sovereignty depends upon. In other words, a national government that encroaches upon state authority is in danger of creating a total consolidation of the states into a single, homogenous and centralized national government—what the founders and the American people explicitly rejected. Any national government that does this is illegal and illegitimate, and may it be resisted, absolved, and replaced by the American people.

Second, a priority was given to the people of the states. James Madison, speaking for all the founders, explained in Federalist no. 49 that “the people are the only legitimate fountain of power, and it is from them that the constitutional charter … is derived.” From Hobbes to Grotius, from Blackstone to James Wilson, most political scientists in the early modern period believed that the creation of a commonwealth and legitimate government required the participation and consent of the people. The debate centered around the origin (the terminus a quo) of political power and authority, and in whom political sovereignty was permanently vested once a constitution and government had been established. The American founders believed that political authority ultimately came from God (communicated through the natural law and divine law) but was mediated through the people collectively; and they held that the people were thus sovereign and could not completely divest themselves of their own sovereignty.¹⁷ What was involved in the creation of the American nation were multiple acts of delegation by the people of their sovereignty to their states and the national government.

This helps us clarify a common criticism lodged against American constitutionalism, namely, that the partially consolidated and confederate nature of American government attempts to divide sovereignty between the state and national governments. Yet political sovereignty seems to be the kind of thing that cannot be divided, since sovereign means supreme, and thus without rival; you cannot have two supreme powers, as one will by nature seek to conquer and subdue the other. In a well-known 1835 tract entitled “Essay on Sovereignty,” James Madison famously argued that the American constitutional system was one of dual sovereignty: the states were sovereign in some areas, and the national power was sovereign in others (similar to his description of their respective powers in Federalist no. 39).¹⁸ In this scenario, every American citizen, as a citizen of their state and a citizen of the national constitution, were always accountable to two sovereigns.

While Madison is not wrong in the particulars, his description is inaccurate. America does not have dual sovereigns; there is one sovereign—the people—who engage in a dual act of delegation. If sovereignty were lodged in the legislature as Blackstone believed, then America’s interlocking federalism would mean there were originally fourteen sovereigns—and now fifty-one sovereigns. This makes little sense, and if true, would inevitably lead to a winner-takes-all contest among these competing sovereigns. Instead, by vesting sovereignty in the people, and by making all elements of American constitutional government (for both states and the national government) responsible to the people (i.e., a thorough-going republicanism), the founding generation was able to actualize a hierarchy of mutually-depending constitutional governments, each with distinct authority and political jurisdictions, that contributed to a harmonious and balanced whole.

Finally, the possession of the people’s sovereignty is only possible when the people are united in their wills and have become a “moral person” under the Law of Nations and natural law. In other words, American republicanism and constitutionalism requires a certain amount of cultural, linguistic, ethnic, moral, and religious homogeneity—exactly what John Jay speaks of in Federalist no. 2—in order for them to be united and exercise their sovereignty as a collective people. Otherwise, they will be fragmented and factious, and they will not be able to exercise their sovereignty; they will cease to be sovereign and American constitutional government will fail.

And Covenantal Nation

America’s partially consolidated and confederate constitutional structure depended upon a certain amount of commonality among the people. At the least, it required a common moral (and thus religious) understanding, agreement about the principles of political governance, and a shared conviction regarding the purpose and meaning of life (the end of the political community). When John Jay asserted that Americans were “attached to the same principles of government,” he almost certainly had some version of social compact theory in mind (he articulates elements of this at the beginning of Federalist no. 2). While most students of the American founding have heard of the social compact, few realize that America is more accurately described as adhering to political covenantalism.

Invoking the idea of covenant is rife with the potential for misunderstandings. Our minds immediately jump to Israel’s covenant with God, which was indeed a political covenant—but not only a political covenant. It also involved every other element of life: religious worship and ceremony, social custom, relation to one’s neighbors, eating, drinking, and what clothes to wear, and of course, the historical-salvific element of God’s work in saving and redeeming his creation through a specially chosen people. The Puritans in New England were self-consciously Reformed Protestants who believed in a multiplicity of covenants, both spiritual and religious: the covenant of works (between God and Adam), the covenant of redemption (between the Father and Son), the covenant of grace (first between God and Abraham, but then between Christ and believer), the covenant of the Church (between Christ and the saints, divided between true and visible saints), and the covenant of the political state.¹⁹

While the Puritans at Massachusetts Bay succeeded in creating and then maintaining a tight-knit and closely integrated Christian society where the Church and state cooperated in a mutually beneficial relationship, the focus by the late eighteenth-century was more exclusively upon the political element. Contrary to what many scholars and students think, American political thought at the time of the founding had not shed the covenantal framework inherited from the Puritans (and indeed, other colonies as well). Almost from the beginning of the formation of the Continental Congress, congressional announcements were couched in covenantal language. In a June 12, 1775 resolution of America’s first national day of “public humiliation, fasting and prayer,” the Congress warned of God’s “desolating judgments” if the colonists did not “confess and deplore” their many sins, “beseech [God] to forgive [their] iniquities,” and “implore [God’s] merciful interposition for deliverance.”²⁰

The political covenant at the time of the founding contained two elements, one vertical and the other horizontal. The American colonists at the time were predominantly Protestant Christians, and so they believed in God’s providence, in his superintending governance over their lives (including both blessings and punishments), and that his will could be discerned in nature and in revelation. By ordering human positive law under the precepts of the natural law, the founders acknowledged God as a lawgiver who would bless them if they did good, and who would bring calamity upon them if they did evil. This vertical covenantal element was less about having or maintaining a special chosen-people status, and more about properly acknowledging God and ordering the political community under God’s general and providential rule.²¹ The horizontal component of the covenant was how men compact together as political equals to establish a constitution, institute a government, and choose wise and virtuous representatives to lead them. This latter aspect is what most scholars have in mind when they speak of America’s social compact.

Is there a meaningful difference between a compact and a covenant? While there is some evidence that Americans were using these terms interchangeably by the latter half of the eighteenth-century, it is still possible to demarcate essential differences. Once again, we turn to Donald Lutz to see the distinctions. For Lutz, a compact is “a mutual agreement or understanding that was more in the nature of a standing rule” and that “created … a community” by “knitting together” a people “firmly into a whole.” A covenant, on the other hand, was a compact with added religious elements: namely, an acknowledgement of a common God, an invocation of that God as a witness and guarantor of the covenant being made, and the use of an oath to secure the political obligations and promises made.²²

While most colonial charters, compacts, oaths, fundamental orders, and organic acts slot neatly under the covenantal definition, what few realize is that the Declaration of Independence reads the same way. Clearly, it is a compact among the thirteen states who conceived of themselves as being “one people.” Yet these people collectively testify that they have been created by God and endowed with certain rights, and that they live under Nature’s God and his laws of nature. In addition, at the end of the document, the representatives of the states appeal to “the Supreme Judge of the world” for the rectitude of their intentions (i.e., the justice of their independence) and they confess their “firm reliance on the protection of divine Providence” in this endeavor. They make these pronouncements and declare independence with oaths: they “solemnly publish and declare” that the United Colonies ought to be free and independent states, and they “mutually pledge to each other” their lives, fortunes, and sacred honor. While a supposedly enlightened, secular, and heterodox Thomas Jefferson is often (wrongly) credited as being the author of the Declaration, even he could not help but cast America’s first act of national political independence in the covenantal language and framework so common to America.²³

Much more could be said on this topic, including the nature of the state constitutions and the Articles of Confederation, the debate over the U.S. Constitution supposedly being “godless,” the status of religion and church membership in the late eighteenth-century, and the like. What is important to grasp is that in the American mind, political covenant and constitution went together: the American’s were not creating a ‘secular’ nation that intentionally pushed religion out of politics through doctrines of separation of church and state. They were a self-consciously Christian people ordering themselves under God and his manifold revelations.

Conclusion

The forgoing commentary on American nationalism reveals that it was a complex phenomenon, which in many ways, was sui generis. While the general framework of the Law of Nations is common to all nations, there has never been and there never will be again a nation like America. Anyone who begins a discussion of American nationalism with appeals to nineteenth-century romantic conceptions of a German volk or to twentieth-century nationalist movements will not be able to understand and represent American nationalism accurately. America must be studied and understood on her own terms and according to the words and explanations offered by her founders.

Conservatives who understand that America was founded as a partially consolidated, confederate, and covenantal nation (or republic), and who thus call for a renewal of American nationalism are not advocating for ‘authoritarianism’ or the unlimited growth of Washington’s power.²⁴ Instead, they are advocating for the opposite: since American nationalism takes the form of dual delegation and federalism between the state and national governments, a genuine return to American nationalism would decentralize political power in America and reinvigorate state governments with their original domestic and police powers. It is a call to disaggregate America, to strengthen local government, and to refocus the national powers in Washington on its legitimate ends.

In fact, the desire to return to American nationalism is both a desire to limit government and to expand government. Government ought to be limited at the national level: to bring the national government back to its limited objects, but grant Washington the necessary and plenary power and means to achieve those ends (as outlined in Art. I, Sec. 8).²⁵ But we also want to reinvigorate the states to take back the powers stolen from them—stolen through doctrines of incorporation and court restrictions, stolen through the growth of the power and influence of Washington, and power abdicated by state legislatures and governors more concerned about their own self-aggrandizement and elite appeasement than the welfare of their own people. The balance of power in American national life currently is dangerously uneven, as America inches closer to becoming a totalitarian surveillance state. The solution to this is not to eschew political power or to foolishly declare it a “necessary evil” as Thomas Paine did many centuries ago.²⁶ Instead, the solution is to be more American than we currently are by returning to the glory of American nationalism originally conceived.

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