Abstract

Excerpted From: Gregory Ablavsky and W. Tanner Allread, We the (Native) People?: How Indigenous Peoples Debated the U.S. Constitution, 123 Columbia Law Review 243 (March, 2023) (434 Footnotes) (Full Document)

Writing in the name of the “People of the United States,” white men drafted the U.S. Constitution in 1787. The following year, white men, chosen by an almost exclusively white, male, property-holding electorate, voted to ratify the Constitution.

These historical facts have important implications for constitutional law. They have led many commentators to question or reject the authority of the Constitution because it rests on such an undemocratic conception of the people. They also mean that present efforts to discern the Constitution's historical meaning have focused almost exclusively on the views of the document's drafters and elite interpreters.

Yet the actual “People of the United States” were far less homogenous than the circumscribed group who claimed to represent them. Like the nation today, the United States in 1787 was strikingly diverse, polyglot, and pluralistic. The nation's more than three million residents of European descent had only recently begun to conceive of themselves as a cohesive “white people”--encompassed a startling array of nationalities, faiths, and languages. Even those white people excluded from the franchise--most women, poor men, and laborers and did, actively participate in what was known as politics “out of doors.” Roughly 750,000 people whom Anglo-Americans labeled “Black” also lived within the United States. This number included nearly 700,000 enslaved peoples from throughout Africa--some recently arrived, others descended from long-standing enslaved communities--alongside a small, though growing, free Black population of 50,000 people. Meanwhile, roughly half the purported territory of the new nation was legally “Indian country,” the homelands of at least 150,000 Indigenous people organized into powerful, loosely centralized confederacies like the Haudenosaunee and Muskogee.

At the core of the new Constitution, then, was a contradiction: a narrow political elite attempting to govern, in the name of the people and popular sovereignty, a much more diverse nation. That elite sought to resolve this hypocrisy through exclusion. As scholars have amply shown, the Constitution placed most of the actual people of the United States outside the bounds of the body politic and sought to limit their access to political power. Moreover, the increasing democratic inclusion of white men further entrenched whiteness and maleness as the defining boundaries of political participation.

Recent literature captures how thoroughly such exclusionary efforts succeeded. Racialized and gendered exclusion entrenched itself throughout much of antebellum constitutional law, which vindicated chattel slavery, Native dispossession, and women's supposed subservience. The protests of those deemed political outsiders could be, and were, brutally suppressed through state-sanctioned and state-sponsored violence.

But these exclusionary efforts also failed. The United States never was, nor could be, a solely white or male nation. Despite efforts to suppress their voices, those excluded from whiteness and maleness nonetheless engaged with the law, including constitutional law. Historians have recently and effectively reconstructed the legal consciousness of many marginalized groups and their impact on Anglo-American law, including constitutional law.

Yet little of this work has focused on the so-called “Founding,” the period surrounding the drafting, ratification, and early interpretation of the Constitution. This omission is surprising, partly because this era has become ever more legally important in constitutional interpretation with originalism's ascendance and partly because constitutional history itself has already shifted to encompass popular constitutionalism. Nonetheless, though we know quite a bit about how marginalized groups were talked about in the period's constitutional discourse, we know little about what they said; they are presented as objects, not creators, of constitutional ideas. This absence has come to be interpreted as evidence of silence rather than, more accurately, of silencing.

This Article seeks to counter this absence by recovering just one of many such suppressed constitutional discourses: the debates and engagement by some Native peoples over the U.S. Constitution during the Founding. Its goal is less to offer a definitive account than to provide proof of concept: to show that we can, in fact, incorporate these voices into our constitutional histories. We should not, in other words, use past exclusion to justify continued exclusion from constitutional history today.

What do we discover when we do this work? In one sense, this history shows the challenge in expanding our conventional narratives using current frames. Even the idea of a “Native” perspective on the Constitution posits something that never existed: The many Native peoples within the United States have had all their own distinct histories with, and views on, the document. This Article focuses on the debates of some particularly prominent Native nations in what became the U.S. Northeast, Midwest, and South during the Founding Era without claiming to universalize their experiences. In doing so, it recognizes that Indigenous peoples have always had their own, separate legal systems that rested on fundamentally different principles, worldviews, authorities, and forms of recordation than Anglo-American law. Scholars in Native American and Indigenous Studies (NAIS) have emphasized the significance of Indigenous ways of knowing, including in law, and have done important work on Indigenous constitutional law--with much more work still to be done.

This Article, however, opts for a different path. It narrates this history using the conventional categories and periodizations of U.S. constitutional history. This version of the story runs like this: Like their Anglo-American neighbors with the British constitution, Indigenous peoples harkened back to a prerevolutionary ancient constitution--what we here dub the “diplomatic constitution,” the set of practices, norms, and expectations that governed interactions between Native nations and European empires. Also like their neighbors, Natives resisted when the principles of that diplomatic constitution were challenged--although the constitutional threats here came mostly from the new United States--and they, too, experienced a postrevolutionary era of turmoil and contention, an Indigenous “critical period.” After the Constitution's drafting, its Federalist proponents sought to persuade Native peoples as well as U.S. citizens of the document's merits. The result was that Indigenous communities had their own internal deliberations over the Constitution--what this Article terms the “Native ratification debates”--where, like their white neighbors, Natives split over the document's merits. Moreover, just as constitutional meaning and authority continued to be contested throughout the Early Republic during the nation's “long Founding,” Native peoples continued to engage with and fight over the Constitution's implications for them, especially during the constitutional crisis of forced deportation euphemized as Indian Removal.

The purpose behind this narrative choice is not to argue that categories grounded in Anglo-American experiences with the Constitution are the best way to craft a more inclusive constitutional history. Hopefully, as constitutional history engages with more diverse histories, it will follow scholarship on U.S. history more broadly, and new categories and periodizations will emerge. Rather, this Article's choice to use conventional categories is strategic. Partly, this approach offers the proverbial spoonful of sugar: It seeks to make the history recounted here more legible to legal audiences unfamiliar with this past. This account also hopes to rebut the counterargument that inclusive constitutional history, while all very interesting, is not relevant to constitutional meaning because it does not fit within carefully policed traditional frameworks. Of course, scholars should query whether, when “relevance” is thus wielded as a weapon to validate some stories and exclude others, the fault might rest with the category itself. But this Article takes a different tack: It seeks to reclaim and reconceive such categories, long used to naturalize a narrow conception of the past, to facilitate a broader historical vision.

A similar point holds for historical methodologies. There should be, and hopefully will be, constitutional histories that draw from ethnohistory and take seriously Indigenous oral traditions and languages. But we can work to partially recover the perspectives of marginalized communities using written English-language historical sources, too. By the late eighteenth century, many Native leaders, well-familiar with written texts, spoke and wrote in English; in other instances, Native voices were translated and recorded by government officials. Their constitutional views appear throughout the period's official and informal correspondence, narratives, and minutes of treaty negotiations. Like all historical evidence, such intermediated texts should be read carefully and contextually, and historians of Native America have developed a skilled repertoire to interpret these documents. In many ways, then, recovering the constitutional arguments of Native peoples--and potentially other marginalized communities--simply calls for doing what constitutional scholars have long urged: expanding our constitutional histories beyond a limited set of canonical texts to encompass the records of the multiple sites in the Early Republic where constitutional meaning was made and debated.

What, then, is the purpose of writing inclusive constitutional histories? In one sense, incorporating Native voices into constitutional history should be--and is--unsettling. This Article does not seek to redeem or defend originalism or offer a Panglossian celebration of the Founding by providing a more democratic veneer against critiques of its exclusionary history. The constitutional history of Native peoples is not a multicultural pageant of progress by which even marginalized communities came to claim the Constitution. On the contrary, most Native peoples decided to reject the Constitution and the political system it offered them--and yet they were nonetheless forcibly and unwillingly included within the nation. Recovering their forceful and repeated refusals of the United States vividly and concretely undercuts our happy Founding story that our government rests on the “consent of the governed.”

Yet this Article also suggests that inclusive constitutional history helps move the conversation beyond arguments over “taint” and “original sin” surrounding the U.S. Constitution's entanglements with colonialism. The value of more inclusive constitutional history is not to relitigate the past but to help build more inclusive law now. In particular, this Article's recovery of the importance of Indigenous law and constitutional debates during the Founding shows us how the contributions of Native peoples should be recognized as “our law.” As a source of eighteenth-century law that bound both Anglo-Americans and Native peoples, the diplomatic constitution serves as an essential component of the law of the past, providing a “backdrop” to our constitutional order, akin to the common law. And both the diplomatic constitution and Native interpretations of the Constitution alter our narrative of who the Constitution belongs to. Although this reconstruction cannot remedy the violence and harm of Native peoples' forcible inclusion into the United States, it nonetheless affirms the role that Native peoples played as co-creators of American constitutional law. In this sense, too, this constitutional history is part of “our law,” the shared constitutional narrative that all Americans identify with.

In exploring these ideas, this Article proceeds in four Parts. The first three provide a historical account of Native peoples' engagement with American constitutionalism, revealing how Native peoples both constructed and interpreted colonial legal practices and the U.S. Constitution. Part I introduces the concept of the diplomatic constitution--the prerevolutionary set of norms, practices, and principles that governed relationships between Native peoples and Euro-Americans--and discusses its crisis during and after the American Revolution as federal weakness failed to restrain the land hunger and violence of state officials and white settlers. Part II examines the aftermath of this crisis: the Native ratification debates of the 1790s. It explores how Native peoples discussed federal officials' attempts to sell them on the new Constitution as a continuation of the diplomatic constitution and how they then, in a sense, “voted” on its merits. Part III discusses the renewed Native ratification debates, when, in the 1820s and 1830s, some Native nations that had bet on the Constitution and its promises for protecting Native autonomy and land challenged Removal but ultimately found their hopes disappointed. Part IV then offers some broader implications for this history, including recognizing the diplomatic constitution as part of the law of the past, broadening out the “public” considered in original public meaning, and addressing questions surrounding the Constitution's legitimacy.

[. . .]

In the wake of the 2016 election, Shepard Fairey posters proliferated. Labelled “We the People,” they depicted people of color who would almost certainly not have been part of the political community in 1789: a woman wearing a star-spangled hijab and a Black woman with dreadlocks. They powerfully affirmed these communities' belonging and ownership of the nation when both were under attack.

The posters are a potent reminder that “We the People of the United States” are perhaps the most resonant words in the entire Constitution. As interpreted by our nation's civic religion--the generations of schoolteachers who made their students memorize the preamble, for instance--the words epitomize the new nation's democratic commitments. For advocates of popular constitutionalism, the phrase underscores the nation's foundation in popular sovereignty. Others might read in these words a rank hypocrisy: a reminder of how circumscribed and exclusionary the concept of the “People” actually was at the time of the Constitution's adoption. Still others might read in the same shortcoming a promise--the foundation for a struggle for inclusion in which ever more groups fought for, and won, their place among the people.

But there is another, more literal way to read this language. The Constitution does not limit or define “We the People” other than the ambiguous “of.” In this reading, any person within the borders of the United States, regardless of citizenship or any other characteristic, might be part of the “People of the United States.”

That, of course, is almost certainly not the way the document's drafters meant this language. But the point here is not a faithful recreation of their limited imaginings. Instead, this reading invites us to examine constitutional history from a new perspective: to consider what the actual people in the United States--all of them, regardless of whether they were defined as part of the political community--thought about the Constitution purportedly written in their name.

This Article has examined one group with a particularly complicated relationship to the “People of the United States”: Native nations. They were, as the history explored here shows, deeply ambivalent about the new nation and its Constitution. Most rejected it; some embraced it, only to regret their decisions later. Some, like Piominko, literally referred to themselves as “People of the United States,” but most denied that label. But however they defined themselves, they constantly engaged with the Constitution and helped shape constitutional law.

It is almost a truism in constitutional law that stories about the past matter. Academic accounts about the past will never be as visceral as a Shepard Fairey poster, but they might serve a similar role. Right now, our visions of the past do not match the pluralism that the posters depict: Popular images of the Founding depict bewigged white men in a room. Yet this conception suggests more about the failure of our imaginations than about the realities of history. The new United States was born as multi-hued and pluralist as the nation Fairey depicts. Powerful people in the past were not always good at recognizing or accepting this reality, which they often sought to suppress or deny. But that doesn't mean that we can't do better.

Marion Rice Kirkwood Professor of Law, Stanford Law School; Professor of History (by Courtesy), Stanford University.

J.D., 2022, Stanford Law School; Ph.D. Candidate in History, Stanford University; Citizen, Choctaw Nation of Oklahoma.