American Dialogue: The Founders and Us

by Joseph J. Ellis

Patrick Henry, the greatest orator of the age. Henry had no doubt that Madison was defending the creation of “one consolidated empire in America…whose features, Sir, appear to me horribly frightful.”38 In response, Madison repeated the arguments he made in the Federalist Papers about the limits imposed on federal power and the hybrid character of the proposed Constitution. “It is in a matter unprecedented,” he claimed, “it stands by itself. In some respects it is a government of a federal nature; in others it is of a consolidated nature.”

“We the people” referred not to the people composing one great body but to the people living and voting in thirteen separate sovereignties. This was a huge concession on Madison’s part, and a complete reversal of the nationalist position he had championed in Philadelphia the previous summer.

But in the same way that the debates at the Constitutional Convention were resolved by compromises that no one, Madison included, found fulfilling, the debates over ratification forced modifications in Madison’s version of how the document should be understood. All of which throws a cloud of confusion over all pursuits of the original meaning of the document itself, in part because his position kept shifting, in part because the shifts were not voluntary changes of mind but rather mandatory adjustments to changing political circumstances. In that sense, Madison’s claim that ...

While a strong case can be made for Madison as “Father of the Constitution,” there are other plausible candidates for the title, chiefly Gouverneur Morris. Moreover, Madison lost most of the debates he considered crucial. But no such qualifications apply to the title “Father of the Bill of Rights.”

delegates in Philadelphia had not provided a Bill of Rights primarily because by September 1787 they were exhausted and wanted to go home. As the debates in the ratifying conventions made clear, this was a huge mistake, which many critics of the Constitution cited as its most glaring weakness.

That was true in Europe, Madison argued, “but in our Governments the real power lies in the majority of the community,” so the real threat came “from acts in which the Government is the mere instrument of the major numbers of the constituents.” As a result, Madison insisted that “a bill of rights, however strongly marked on paper, will never be regarded when opposed to the decided sense of the public.”

Jefferson and Madison were clearly looking at the question of individual rights through different ends of the telescope. Madison’s view made no sense within a Jeffersonian universe because Madison presumed that the great danger came from popular majorities, which Jefferson found unimaginable.

In truth, Madison did not believe that any effort to “declare the great rights of mankind” in the Constitution would make any appreciable difference in expanding the range of freedom for American citizens. His intention in the spring of 1789 was to maximize support for the new government and outflank those opponents—Patrick Henry was the chief culprit—who hoped to undermine it. He regarded the Bill of Rights less as a philosophical statement than as a political tactic.

Washington envisioned common ownership of western lands as the gravitational field that would bind the states together as a nation rather than a mere confederation. Without the West, all political energies would become centrifugal; with the West, they became centripetal.

Washington’s main points; namely that managing westward expansion was the central pillar of American foreign policy for as long as it took to occupy the continent.

Deliberately placing the Native American dilemma aside for the moment, Washington chose to focus on those features of America’s new western empire that actually enhanced rather than contradicted republican values. More than a century before Frederick Jackson Turner described the western frontier as a “safety valve,” Washington was telling young men without prospects to seek their future in the Ohio Valley: “If I was a young man, just preparing to begin, or even if advanced in life, and had a family to make a provision for, I know of no country where I would rather fix my habitation than in some part of that region.”7

In this version of American expansion, the west became an American asylum rather than an empire, indeed a refuge for those foreigners seeking to escape from the oppressive monarchies across the Atlantic.

Jefferson consulted with Washington and the Virginia delegation, then drafted the following words, which, apart from the Declaration of Independence, were the most consequential he ever wrote: “The Territories so called shall be laid out and formed into States…and the states so formed shall be distinct Republican States and admitted members of the Federal Union, having the same rights of Sovereignty, Freedom, and Independence as the other States.” He also added that neither slavery nor hereditary titles would be permitted in the new states, but Congress by a narrow vote chose to delete those recommendations. It did, however, endorse the key provision that there would be no colonies in the expanding American empire. All white settlers who flowed over the Alleghenies were thereby assured that they would eventually become citizens, not subjects, in the new American republic, thereby creating that rarest of creatures, an anti-imperial empire.10

Like a swollen stream, it should be allowed to flow freely, which in effect meant that families should pursue their happiness wherever they wished, so that new settlements would pop up like flowers wherever fertile land beckoned. It was a laissez-faire approach to American expansion. Washington preferred a more controlled approach, what he called “compact and progressive seating,” which was designed to transform the flood of settlers into a more regulated flow that assured density of occupation in discrete waves of settlements.

More practically, he worried that a widely dispersed westward migration would fall victim to lurking European powers, chiefly Great Britain and Spain, who would seduce isolated settlers into foreign alliances.

The republican principle of guaranteed citizenship for all settlers remained intact, and the concentrated settlements further ensured that western territories would be folded into an expanding United States rather than stray, as colonies, into European hands. By the mid-1780s, as a result, the infant American republic had found a way to fuse two apparently irreconcilable identities—an emerging imperial power and the first and only large-scale republic in the modern world.

But Washington believed, correctly it turned out, that the very act of managing its empire would literally force the state-based members of the confederation to behave collectively, thereby laying the political foundation for a nation-in-the-making.

Two features stand out in this story. First, it could never have happened without the guiding presence of a singular figure whose transcendent stature was so acknowledged that the awkward contradiction the new republic was living became, instead, a lovely paradox. And second, despite the remarkable beauty of it all, standing squarely in the middle of this seductively attractive scene was an ugly fact: namely that the entire Native American population living in the eastern third of North America was the glaring exception to everything Washington’s iconic presence had made possible.

White settlers in the new territories knew that they would eventually become full-fledged American citizens, not colonists or subjects, but most of them also assumed that Indian land was theirs for the taking. And Indian removal east of the Mississippi was the unspoken assumption for most delegates to the Confederation Congress, the only question being how it should happen.

the American negotiators cited the “conquest theory” as the legal rationale for confiscating Indian land without their consent. According to this line of argument, Native Americans had no rights because they were a “conquered people” who had sided with the British in the recent war and therefore had no legal standing, so by even consulting them the American government was doing them a favor. This first version of a coherent federal policy toward Native Americans, then, was thoroughly arbitrary, wholly one-sided, and brazenly imperialistic in the European mode.12

From the Indian side of the imperial equation, the new American policy looked and felt incomprehensible. Nearly three-quarters of the region east of the Mississippi remained Indian Country after the war, occupied by approximately thirty tribes long accustomed to regarding the land as a gift from the Great Spirit. It had never occurred to them that this expansive tract could be owned by any mortal, much less that control over it could be determined by men an ocean away, who had never hunted or even walked upon its ground, who had only written their names on a piece of parchment.

Consider this letter from several Cherokee chiefs, protesting violations of the Treaty of Hopewell: At our last treaty…we gave up to our white brothers all our land we could any how spare, and have but little left to raise our women and children upon, and we hope you wont let any people take any more from us without our consent. We are neither Birds nor fish; we can neither fly in the air nor live under water. Therefore, we hope that pity will be extended to us. We are made by the same hand in the same shape as yourselves.13

In effect, every Indian treaty was intended as a temporary agreement, destined to be discarded once the edge of new settlements reached Indian borders. The great advantage of this approach was that it averted Indian wars because demography would do the work of armies. It was really a recipe for genocide in slow motion, and for a more gradual and palatable version of Indian removal east of the Mississippi. By the latter half of the 1780s, then, American policy toward the Native Americans had evolved from an overt to a covert kind of imperialism.

“Indians being the prior occupants possess the right of the soil,” Knox insisted, “so to dispossess them would be a gross violation of the fundamental Laws of Nature and the distributive justice which is the glory of our nation.” Unless Washington found a way to effect a change in the shape and direction of foreign policy toward the Native American tribes, Knox warned that “in a short period the Idea of an Indian on this side of the Mississippi will only be found in the pages of the historians.”17 Since Indian removal was, in truth, the unspoken goal of current American policy, albeit achieved in a way conveniently designed to obscure the imperialistic character of the enterprise, Knox was calling not only for a change in the ultimate outcome but also for a more candid acknowledgment that what they were doing to the Native Americans was just as arbitrary and morally wrong as what Great Britain had done, or tried to do, to them as American colonists.

Although most historians of Washington’s presidency have rather strangely tended not to notice it, solving the Native American problem became his highest priority during his first year in office.

During the summer of 1789, Knox and Washington worked feverishly to achieve two goals: first, to establish federal sovereignty over all state-based treaties, most especially those recently negotiated by North Carolina and Georgia; second, to identify the most appropriate tribe and tribal chief with whom to sign a model treaty that would set the standards for a new chapter in Indian-white relations more compatible with republican values.

In the long run, which is to say the next century, both Washington and Knox imagined the gradual assimilation of Native Americans into the union. In the short run, the goal of Indian removal east of the Mississippi was abandoned.

The Treaty of New York was signed in Federal Hall on August 13. Abigail Adams, who had been made an honorary Creek with a Creek name, Mammea, was in the gallery. She watched Washington give McGillivray a gift of beads and tobacco, then shake hands Indian-style with each chief, arms locked while grasping elbows. The Creeks then formed themselves in a chorus and sang a final song that the interpreter explained was a tribute to perpetual peace. In the tortured and tragic history of Indian-white relations in the United States, this was probably the most hopeful moment.

The primary reason for the optimism was that Washington and Knox had apparently discovered a strategy that would avoid both Indian removal and Indian wars. In the Treaty of New York (1790), the Creeks were promised sovereign control over a vast tract that included what is now western Georgia, northern Florida, southern Tennessee, and most of Alabama. The federal government was legally and morally pledged to prevent white settlers from invading this new version of Creek country. And this homelands model could be applied elsewhere, creating a series of Indian enclaves east of the Mississippi.

But the ink was hardly dry on the Treaty of New York before settlers on the Georgia frontier poured across the newly established borders by the thousands, blissfully oblivious of any geographic line drawn on a map by some faraway government. The Georgia legislature brazenly defied federal jurisdiction over its western borders, claiming that all of Creek country and beyond to the Mississippi belonged to Georg...

Knox estimated that it would take five thousand American soldiers to patrol the Creek borders, and this at a time when the entire American army was less than half that size. Washington concluded that “scarcely anything short of a Chinese wall…will restrain land jobbers and the encroachment of settlers upon Indian territory.”28 He and Knox had made a promise they could not keep. Indeed, Washington had invested all his enormous prestige in a just resolution of the Native American dilemma, making it the highest priority during his first term as president, but he had failed completely, and he knew it. For

At the time, the chief consequence of Washington’s failure was to establish the Native Americans as the abiding and eventually permanent exception to the anti-imperialistic side of the American Revolution. Washington’s heroic effort to avoid that fate stands as his personal testament to that anti-imperial tradition. The fact that he failed serves to expose the inability of the revolutionary legacy, even when it was still a living memory, to deter a full century of domestic imperialism.

Washington’s second term was preoccupied by the more conventional version of foreign policy, one that looked across the Atlantic to Europe rather than westward toward those Indian tribes inhabiting the American interior. The main reason for the change in focus was the French Revolution, a cataclysmic event that threatened to shift the tectonic plates throughout the Western world and, more immediately, lead to war between Great Britain and France for European supremacy.

Put succinctly, the infant American republic should have commercial relations with all foreign nations but diplomatic relations with none. In effect, this meant independence at home should be accompanied by independence abroad, at least for the foreseeable future.30

But the end result was the same. The consensual centerpiece of American foreign policy was to look inward rather than outward and to avoid European entanglements at all costs. This was easier said than done. The distinction between commercial and diplomatic relations made perfect sense in theory, but in practice the distinction dissolved during wartime, when trading partners demanded allegiance rather than neutrality.

The international explosion that generated tremors throughout the American government was the outbreak of war between Great Britain and revolutionary France in April 1793. Washington immediately convened his cabinet and extracted a unanimous vote for a policy of strict American neutrality.

Washington knew better than anyone else that the war for independence could not have been won without the money and men provided by France. But that was then, and this was now. No matter that a clear majority of American citizens were, for obvious reasons, pro-French and anti-British. As Washington saw it, foreign policy must be based on a realistic appraisal of American interests, not on popular referendums or nostalgic memories of past French largesse. He

Washington believed that he had been duly elected to provide that voice, he found himself living a central paradox of the early republic: what was essential for a viable and coherent foreign policy was ideologically at odds with what the infant republic claimed to stand for.32 The full implications of that paradox became visible in the debate over the Jay Treaty (1795), the landmark foreign policy achievement of Washington’s second term. Perhaps