The Origins of the Federal Republic: Jurisdictional Controversies in the United States, 1775-1787

2. From Colony to Territory: Changing Concepts of Statehood

From Colony to Territory: Changing Concepts of Statehood Early American concepts of statehood were drawn from several sources. States as territorial communities were inherited from the colonial period; states as governments were created by the revolutionaries; and states in a community of states existed by virtue of the recognition of other states. Each definition carried limitations with it that inhibited the exercise of state power. These limitations became manifest when one idea of statehood was invoked against another during the many jurisdictional controversies between or among the states and between the original states and separatists who sought to set up new states. The resulting confusion encouraged Americans to reexamine statehood claims, in general terms as well as in particular cases. Though the precise extent of states' rights remained controversial, a diminutive notion of statehood became predominant by the mid-1780s. The new synthesis was apparent in congressional policy for the territories, which were destined to become "states," and in the radical expansion of national power, at the expense of the states, in the Federal Constitution. According to the doctrine of state succession, new state governments succeeded old colony governments in political communities or "states" that long antedated the Revolution. The doctrine suggested that prior acts of the colonial governments, except for the "unconstitutional" encroachments that led up to the Revolution, remained binding—an idea 21 2 22 The Early American State System that was particularly attractive to the propertied classes. It also implied that the new states, like their colonial predecessors, were part of a larger community and should be subordinate to a higher authority. American experience in the Empire remained paradigmatic after independence, and state succession theory provided the link.' The Revolutionary assumption of authority and creation of new governments apparently offered a much broader mandate for expanded state power. But patriotic Americans had denounced the legislativesupremacy claimed by Parliament and were wary of according extensive powers to their own governments. The American idea that the people, not the government , were sovereign constituted a fundamental limitation on state power.2 Popular sovereignty was institutionalized in the drafting of new state constitutions, which limited the powers of the new state governments . Popular sovereignty and the imperial model of interstate organization thus both reduced the scope of state power. Finally, the identification of the American states with the common cause and membership in Congress directly worked against notions of truly independent statehood. The states naturally looked to each other for collective security, but in doing so they had to compromise their various pretensions. The states had to agree not to seek alliances or resort to coercive means as individual states; in other words, they denied themselves the means of independently extending and enforcing their claims. It also meant that the large states would have to renegotiate their boundaries, in order to bring all the states closer to that equality of size and power which many contemporaries—particularly from small states—thought was essential for their peaceful coexistence. Such negotiations, particularly over western boundaries, reduced the territorial claims of the large states. They also tended to diminish state power in general, first by establishing the primacy of mutual recognition in statehood claims, second by creating a tangible common interest in the new national domain, created by state land cessions, as a counterweight to state interests. In the years between the Declaration of Independence and the Constitutional Convention, the relative importance of these different definitions of statehood shifted. At the outset, state succession claims and the natural rights of Americans to set up their own governments were mutuallyreinforcing in supporting the autonomy of the states and the legitimacy of their new governments. But neither definition, alone or in tandem, provided an adequate rationale for American statehood. The Revolution was a continental effort, and the need for cooperation among the states was From Colony to Territory 23 obviously paramount. Thus the idea that statehood derived from membership in Congress and participation in the joint war effort became increasingly important. This formulation was also attractive to proponents of new states in frontier regions which had not been separate colonies; state succession doctrine was worse than uselessto them, because it was an essential prop to the exclusive claims of the original states. At the same time, the efforts of the original states to suppress popular uprisings against their authority, as well as unauthorized separations, discredited political pretensions resting on natural rights alone. All these...