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

This book is part of an older story written anew. Charles Beard, Carl Becker, and Merrill Jensen would find little to fault. Without mentioning the Progressive historians, Hulsebosch argues that American constitutional and legal history can be understood only within the context of intracolonial contests that began early in each colony's history and continued through the mid-nineteenth century. Using New York as a case study, Hulsebosch examines four stages of development: the colonial years to 1760, the Revolutionary generation (1760 to 1786), the Constitutional era (1787 to the 1790s), and the antebellum period (1800 to 1840).

As a foundation, Hulsebosch asserts that the multifaceted British imperial law had tremendous influence on New York law, and that New York, positioned at the center of Britain's American colonial empire, played a critical role in the other colonies in interpreting their constitutions and developing their systems of law.

Three groups vied with one another in shaping eighteenth-century colonial New York law. A powerful core of imperial agents, such as Cadwalader Colden and William Johnson, acknowledged and advocated the dominance of the British constitution and law and that any liberties enjoyed by colonists (even those claimed under the common law) were held by the grace of the crown and could be "repossessed at will" (93). A native-born provincial elite (called by Hulsebosch the "creole elite"), such as Lewis Morris and William Smith, Jr., argued that colonists brought with them and retained all the rights of Englishmen as embodied in the common law, the great documents of state, and the statutory law. Furthermore, as the years passed, the colonies' experience with self government became the "root of their protest" (94). Although the colonies experienced and relished a federal relationship within the British Empire, the creole elite never developed a theory of divided sovereignty. Hulsebosch's last group of frontier settlers and oceangoing sailors lived on the colony's periphery, often defied local authorities, and espoused the common law and a constitutionalism of migration.

Hulsebosch believes that the contests among these three groups "over the relevance and content of the common law, jurisdiction, and the personnel of the legal system (whether judges are appointed to serve for good behavior or at the will of the governor) divided the inhabitants of New York into slowly cohering political groups . . . more than the tension between the abstractions of 'London' and 'the colonies,' help explain the indirect path in New York that ended in rebellion" (134). While not denying the imperial conflict that led to independence, Hulsebosch agrees with the Progressive historians "that the real battle [of the Revolution] was not transatlantic; it went on within the province" (142).

Hulsebosch then explores the relationships between the states and the Confederation government, among the states themselves, and within each state. Abandoning Parliament's Declaratory Act's (1766) principle of imperial dominance, New York's Constitution of 1777 proclaimed that all authority emanates from the people.

Hulsebosch describes New York's Constitution and makes comparisons with other state constitutions, occasionally with mistakes of varying magnitude. More disappointing is Hulsebosch's failure to mention New York's statutory bill of rights passed in January 1787. Milton Klein and John Phillip Reid have alluded to this act, and I have tried to explain its enactment, but Hulsebosch seems to be unaware of its existence. He also seems unaware of the attempt by the states (particularly New York) to have the common-law judicial rights embodied in state constitutions and bills of rights incorporated into the Confederation government when the states ratified the Impost of 1783. This incorporation was to protect each state's citizens from the oppression of the Confederation's customs service and judiciary that would undoubtedly have been created if the Impost had been adopted. These are central issues to Hulsebosch's overall theme.

Hulsebosch argues that the drafting and...