Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830 (review)

This important new book, in addition to being one of the most significant studies of the colony (and later the State) of New York in the last decade, has substantial implications for students of colonialism in other times and places. Though the author does not spend abundant time on the explicit issues surrounding colonialism in a global sense, he offers much food for thought about the particularities of the North American experience, viewed through the lens of successive British and American experimentation with different patterns of constitutional governance.

The key problem of Anglo-American colonization in North America, contends Hulsebosch, was spatial mobility on the part of its human subjects. The British, he claims, could not cope with settler spatial mobility (especially after 1763) and lost their empire. Newly independent Americans, after 1783, adapted British constitutional forms and experienced “qualified success” (p. 305) in maintaining the United States as a unique empire in its own right, which balanced the symbolic empire of self-government with the concrete empire structuring the administration of extended territories. Underlying this deceptively simple formulation one finds deep archival research and a nuanced constitutional argument. Hulsebosch recognizes the fundamental importance of spatial mobility to early American history, arguing that colonists who inherited familiar British legal ideas nevertheless transformed them at the peripheries of empire. Persistent popular disregard for legalistic notions of jurisdiction compelled Americans of the Revolutionary generation to find a way to exert control over their extensive national geographic space by laws, as those spaces could not possibly be controlled by men. Thus, the author asserts, conquest of North America was accomplished “less with violence than with the confidence with which [settlers] carried forward their notions of constitutional liberty” (p. 11).

Hulsebosch deals deftly with the complexities of New York’s unique historical circumstances, moving smoothly between treatments of the general and the particular. While not inattentive to the impact of the presence of the Iroquois, a substantial indigenous confederacy, on the frontiers of New York, the author focuses the bulk of his attention on the settler population. He foregrounds historical contingencies, reminding his readers that the Revolution was not inevitable, and that without adequate ties of cultural and constitutional identity, much of the trans-Appalachian region assigned to the United States by the 1783 Treaty of Paris might have become the property of other colonizing nations.

Although the author’s concern with relating the legal aspects of his constitutional argument yields occasional patches of dense prose that will ensnare non-specialists, the overall value of the book will greatly repay a careful reading. Hulsebosch has a broad perspective and an impressive command of the literature, permitting him to weigh in frequently on historiographical debates with concise and persuasive commentary. For example, he points out that most of the constitutional controversies during the eighteenth century took place between North American colonists, noting that the dispute over parliamentary sovereignty was only one late episode in a long intracolonial debate over the relevance of the English Constitution to the American colonies (p. 74). Additionally, he historicizes his treatment of the term “empire,” indicating what it meant to different historical actors at different moments in time. Federalist Papers author Alexander Hamilton, for example, employed the phrase “fate of an Empire” (p. 205) during the 1787 ratification debate to indicate to his readers what he felt was at stake: the Constitution was needed to empower the Union to compete in an Atlantic world dominated by imperial powers. Yet this was not to be considered an “empire” in the old sense of the word. The Northwest Ordinance of 1787, another crucial constitutional text, was an imperial text to the extent that it envisioned the spatial growth of the Union, yet it was also anti-imperial in the sense that it rejected the notion of a permanent hierarchy between territorial and national governments. This idea of legal authority based on transcendent...