RECAP: “Unbecoming the British Empire,” January 20 Colloquium w/ Kinder-Oxford JRF Grace Mallon

Whither the states!?! As Kinder-Oxford Junior Research Fellow Grace Mallon noted in opening her January 20th Colloquium Series presentation, the mere mention of 1787 seems to send out a historiographical shockwave that leads scholars away from thinking about state-level governance in the nation’s first decades. Understandably so on some level, given the magnitude of how the scope of federal power changed with the drafting and ratification of the Constitution. At the same time, though, such intent focus on the dawn of the federal government has left questions regarding the changing scope of state power and the new forms of intergovernmental relations required to implement the Constitution woefully under-plumbed. How, most fundamentally, did state and federal officials devise their own mechanisms for avoiding conflict, asserting influence, and ensuring, despite what pre-Civil War scholarship might lead us to believe, that federalism actually sort of worked in the early republic? If we look beyond the courts as an arbiter of federal-state conflicts and pay closer attention to questions like these, Prof. Mallon argued, we see not only how the federal government couldn’t have gotten up and running without the states but also how the states leveraged this fact.

On one hand, we might unpack the states’ role in bringing the Constitution to life in terms of consent. For example, in establishing federal crimes, the Constitution failed to account for the absence of federal prisons, requiring Congress to subsequently ask for (and receive) states’ permission to keep federal prisoners in state jails. Lighthouses (yes, lighthouses) provide a more illuminating (yes, pun intended) case study. One aspect of the growth of commercial policymaking power at the federal level was the transfer of control over lighthouses to the Treasury Department so that tonnage duties could be collected. Of course, the states needed to first cede coastal enclaves to the federal government for this to happen. This logistical wrinkle opened up a space for negotiation which states immediately took advantage of by favorably defining the terms under which cessions could be voided and successfully lobbying Congress for concurrent jurisdiction over the enclaves in question.

What other issues tended to force negotiation and which sparked disagreement? What federal powers grated on the states? When did states act on ambiguous powers when the federal government wouldn’t intervene? These corners of history and the questions they raise, Prof. Mallon explained, comprise part one of her research on the transition to federalism. Moving forward from here, however, has led her to turn backward in time, connecting the early days of American federalism back to, as a way of disentangling American federalism from, the legacy of imperialism. How and when, as her title suggests, did the United States unbecome British as they grappled with instituting a republican system in which state and federal governments were expected to coexist and govern within the same geographic spaces?

As for the question of when this act of unbecoming or unlearning occurred, one answer is “not right away.” For example, Madison’s roundly rejected attempt to sneak a federal veto over state law into the Constitution was straight out of the imperial playbook that the framers no doubt became familiar with under monarchical rule. If Madison’s failed veto somewhat overstates the case of imperial legacies, in the early history of the office of the governor, Prof. Mallon stressed, we can see federal and state officials repeatedly navigate this tension between the lessons of empire and the ambitions of democracy. This is particularly true when thinking about the imperial lineage of governors’ position as provincial military commanders. In many respects, military affairs played out in the early republic much as they did within the framework of colonialism. Governors mostly complied with executive requests to raise militias out of a sense of duty to the President and Cabinet and, conversely, they mostly appealed to the federal government before taking military action within their own borders. Likewise was the imperial standard of repugnancy vs. divergence largely observed by governors, as when, in response to the passage of the Militia Uniformity Act, states didn’t outright (i.e., repugnantly) resist reforming militia laws, though they did take advantage of the precedent of prioritizing local circumstances in adhering to the terms of the Act “as nearly as may be convenient,” happily diverging from the law when conditions within the state required them to do so.

All that said, there were certainly instances when the seams of empire’s legacy stretched to the point of fraying. Within the context of governor-as-de facto commander-in-chief, Georgia’s Edward Telfair egregiously invaded the Creek Nation in 1793 without (and without seeking) federal consent, while other governors of the time more quietly questioned the general government’s right to instruct them in their military options. Similarly, while New York Governor Daniel Tompkins heeded Jefferson’s call to muster a militia to put down riots stemming from the Embargo Act, officials in Federalist stronghold Rhode Island showed no inclination for compliance with the Democratic-Republican president’s wishes. Though it had nothing to do with military affairs, John Hancock’s bristling at a law granting Congress the right to appoint state electors is perhaps the most telling example of the United States transitioning away from, while retaining some vestigial limbs of, the imperial transatlantic constitution. Hancock’s citing a lack of obligation to obey the new law might, Prof. Mallon conceded, simply be read as proto-states’ rights bloviation. On the other hand, though, we find ourselves at a republican crossroads in considering it. Hancock’s framing himself as amenable to those who elected him raises, that is, the all-important question of how one runs a quasi-empire when officials are appointed locally.