Rhetoric and Reality in Early American Legal History: A Reply to Gordon Wood

I thank Gordon Wood for his substantive engagement with the arguments in my book, and I welcome the opportunity to exchange views on these major historical and historiographical issues with one of the most important living US historians. There are many places in which we agree, although these might be obscured by the sharp tone of his review. But there are also many points on which we disagree, and I am eager to address those issues.

Wood misstates the main argument of my book. My claim, in its strongest form, is that the debates of the 1760s through the 1780s culminated in a new constitutionalization of federalism, a process that continued into the 1800s. From a disconnected and sometimes ambiguous set of arguments about divided sovereignty in politics, American colonists and early republicans fashioned a new architecture of legal and constitutional authority built on a subjectmatter division of governmental power. In contrast to earlier systems—whether formal or informal—of polycentric government, the federalism of the late eighteenth- and early nineteenth-century United States was specifically designed to avoid the ancient problem of imperium in imperio, or dominion within a dominion, that had so troubled the British Atlantic political world for decades. The significant innovation of the American federal idea was to authorize the division of sovereignty and to create viable legal categories that could contain multiple sources of governmental power within one overarching system.

The intellectual energy of American political and legal thinkers between 1780 and 1800 was thus devoted to a project of translation between political debates and constitutional structure. These statesmen and theorists sought to translate the political conditions of multiple governmental authorities that the colonists had both experienced and theorized under the British Empire into a constitutional structure. This constitutional structure would, they believed, not simply conform to orthodox imperial legal theory through a series of workarounds or legal fictions, but would instead reshape some basic premises of that orthodoxy by rejecting unitary sovereignty in favor of a deep-seated commitment to multiple sources of sovereignty.