The Cromwell Foundation Article Prize Advisory Subcommittee unanimously and enthusiastically nominated the following article for the 2014 Cromwell Article Prize: Gregory Ablavsky, “The Savage Constitution,” Duke Law Journal, Vol. 63, No. 5 (Feb. 2014), 999-1089.
Committee members were especially impressed with the ambitious scope, depth of research, and originality of this article. One might assume there is little new to say about the creation of the Constitution, but Ablavsky manages to tell a new and entirely engaging story.
Ablavsky argues that Indian affairs played a much larger role in the creation, ratification, and interpretation of the Constitution than has been previously recognized. Even in recent scholarship of the Constitutional era, Indians are relatively insignificant, but as Ablavsky so adeptly demonstrates, “in the eighteenth century, Indians were not a political afterthought.”
In the 1780s, westward expansion and ensuing conflicts with native tribes revealed the weaknesses of the Articles of Confederation government. Once prompted by such events to create a more powerful national state, the Framers crafted a document that assumed, and ensured, continued westward expansion. As Ablavsky poignantly remarks, “in Indian affairs, the Constitution was a wartime document.” While what he calls the “Madisonian reading” of the Constitution favored a paternalistic role for the federal government in Indian affairs, ensuring orderly and peaceful transfers of property, the “Hamiltonian reading” emphasized the use of national military power to subdue western Indians.
During the ratification debates, Henry Knox and other prominent Federalists used the Hamiltonian rhetoric of “murdering savages” to leverage support for their cause. They were especially successful in Georgia, which Ablavsky demonstrates agreed to ratification largely out of a belief that the new national government would protect them in a looming war with the Creeks. This rhetoric had the effect of creating a “narrative of Anglo-American victimization [that] provided a powerful justification for western expansion.”
Moreover, the success of these arguments powerfully shaped the meaning of the Constitution itself, so that it ultimately became defined as establishing an expansionist and imperial national government. Ablavsky invites us to reframe the Indian Removal of the 1830s as the legacy of Georgia’s constitutional bargain, in which the state voted to ratify the Constitution in exchange for expected federal protection of state land claims against Indian tribes. Later wars of empire, and even the more recent “war on terror,” have also built on this early form of federalism which was, at its core, designed to subjugate Indians.
By stressing how and why one particular interpretation of federal powers won out, Ablavsky shows how the Constitution was crafted outside Independence Hall, along the western frontiers. He provides important historical perspective for later clashes over federalism. He challenges originalist and progressive interpretations of the Constitution itself. And as one of the committee remarked, he offers “new perspective on what many historians and legal scholars would consider familiar material--an accomplishment worth recognizing.”
BOOK PRIZE [awarded to a book by a junior scholar]:
This year’s group of nominees for the Cromwell Prize was quite strong. After discussion the advisory committee awarded the prize to John W. Compton, The Evangelical Origins of the Living Constitution (Harvard University Press).
The citation reads:
“John W. Compton’s The Evangelical Origins of the Living Constitution argues that the key to American constitutional development is found in the tension between Founding-era commitments to the protection of private property and the dedication of nineteenth-century Protestants inspired by the Second Great Awakening to rid the Republic of immoral forms of property and practices such as slavery, lottery gambling, and buying and selling liquor. Compton’s lively and lucid combination of constitutional and social and religious history challenges the standard narrative of the twentieth-century progressive constitutional regime by demonstrating how judges “bent the constitutional framework” of property rights and federalism in response to the activism of non-legal actors. Rather than focus exclusively on slavery, Compton argues convincingly that the prohibition and anti-lottery movements played an integral role in laying the groundwork for the interpretive revolutions of the New Deal era, including the destruction of property on moral grounds. His provocative rereading of the New Deal constitutional regime as rooted in Protestant moral reform will have a lasting effect in the field of legal history.”
The winner of this years Cromwell Foundation disseration prize is Sarah Levine-Gronningsater’s “Delivering Freedom: Gradual Emancipation, Black Legal Culture, and the Origins of Sectional Crisis in New York, 1759-1870.”
At the heart of Sarah Levine-Gronningsater’s remarkable dissertation is a group that she terms the “children of gradual emancipation.” In 1799, New York granted freedom to future children of slaves, creating a generation of Americans who embodied, quite literally, a liminal status between slavery and freedom. Although nominally free, they were raised by parents who were still enslaved and required by law to work as servants for their mother’s masters until adulthood. In addition to offering a rich and sensitive account of the lived experience of this unique generation, Levine-Gronningsater makes a persuasive argument for their distinctive contribution to the national debate over slavery in the middle decades of the nineteenth century. The idea of “gradual emancipation” does nothing less than provide a new conceptual framework for understanding the legal history of the Civil War Era. Extensively and creatively researched, filled with sharp insights, and beautifully written, Levine-Gronningsater’s “Delivering Freedom” is a model of legal historical scholarship.