| Book Review | Law and History Review, 25.2

Book Review

Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830, Chapel Hill: University of North Carolina Press, 2005. Pp. 494. $45.00 (ISBN 0-8078-2955-2).

Daniel Hulsebosch's important new book shows how New York's experience in the British Empire shaped its subsequent development as a state and as a member of the new American union. Situated on the "edge of the British Atlantic world," colonists drew on a constitutional tradition that was "integrative at first"—defining them as loyal subjects of the British king—"and disintegrative later, when settlers used it to distinguish their colonies from a supposedly corrupting metropolis" (304). Revolutionary New Yorkers did not reject the "English constitution or the idea of an empire" when they overthrew George III (145). The framers of the first state constitution instead "replicated colonial government," and their "plan was premised on intercolonial union" (170, 173).

Hulsebosch historicizes "empire," stripping the term of contemporary connotations of despotic power and hegemonic ambitions. The empire New Yorkers struggled to define and defend was by today's standard anti-imperial, "a collection of competing power centers rather than a pyramid of sovereignty" (5). Convinced that the province's haphazard, autonomous development jeopardized effective integration, "imperial agents"—cosmopolitan bureaucrats with an empire-wide constitutional perspective—were the first to articulate a "transcendent imperial interest" (83). These bureaucrats believed that their chief antagonists, a creole ruling elite that promoted "provincial improvement" by creating and dominating "the discrete legal space of New York," were conspiring to destroy the empire. In fact, Hulsebosch argues convincingly, creole improvers "sought liberty within the empire," seeing "no contradiction between provincial and imperial loyalty" (90, 95). The bureaucrats' misperceptions of improvers' motives reinforced hardliners in London, as they came to the fateful conclusion "that the imperial constitution was whatever those controlling Parliament wanted it to be" (134).

Ineffectual as they proved to be, Hulsebosch's imperial agents play a key role in his interpretation of New York's revolutionary transformation. On the one hand, they predicted and precipitated the alienation and "Americanization" of the creole elite; on the other, the threat of incipient "aristocracy" they represented, their solicitude for Indian clients, and their responsibility for the ministry's heavy-handed coercive policies, enabled reluctant revolutionaries to harness "a vital strand of popular constitutionalism" and so republicanize their conception of New York's corporate interests (97). The alliance between patriot elites and common folk was inherently unstable, and this instability was in turn critically important for the development of the imperial idea in New York: "as the old provincial elite became a national elite, replacements emerged within New York," and these new state leaders "championed state sovereignty to protect" the "local world" of ordinary New Yorkers (218). Outside the empire, the imperial-cum-national orientation of the creole improvers suddenly became conspicuous, while the mass of New Yorkers—often suspecting that these nationalist-aristocrats harbored designs against their hard-won liberties and local rights—became much more fully integrated into provincial political life. The revolution thus reversed centrifugal tendencies that both limited the effectiveness of provincial government and subverted the unity of the British Empire. By extricating their province from the empire, New Yorkers could at last fulfill their imperial ambitions. "When the founders created a new republic, they did so in dialogue with their own colonial past, forging tighter bonds than the old imperial administrators had ever imagined: 'a more perfect union'" (6).

Hulsebosch focuses on diverse and conflicting "constitutional perspectives," the "lived constitutionalism" that brought rights-conscious colonists together and then drove them apart. His illuminating history of the transformation of the common law, from "a mechanism for controlling jurisdiction" to "a jurisprudence that transcended borders," from writ to right, emphasizes the protean character of common-law constitutionalism (32). Common-law constitutionalism gave Anglo-Americans a sense of collective identity, an imperial vision of an expansive union that would secure their liberties. It was the path not taken by the old British Empire: as New York and other states "tried to make popular sovereignty a fact and not just an ideal," the empire "moved ever closer to executive government" (148).

Hulsebosch offers superb accounts of constitution-writing in New York, culminating in the 1821 constitution, showing how enduring tensions between cosmopolitanism and localism and variant conceptions of the statehood and union shaped the course of political and constitutional development. A concluding chapter on James Kent's Commentaries on American Law shows how a new national legal elite, centered in New York, sought to constitute a new "hierarchy of American law," grounded in the common law, moving up through statutes, and culminating in constitutional law (279). Of course, the lawyers' "empire of law" was itself controversial, juxtaposed as it was to a state-centered political economy and party alliances that were responsive to the demands of an increasingly mobilized electorate.

Hulsebosch, a law professor, may be forgiven for taking Kent and his fellow lawyers too seriously. If these "new imperial agents ... made the Union a new kind of empire," it was yet another empire doomed to collapse. "Lawyers and legal culture alone could not" sustain the "empire" the revolutionaries created (305). Hulsebosch's "imperial framework" no longer explains very much by the end of his study. If lawyers succeeded in creating "a peaceful discursive space in which all citizens could debate the meaning of that Union," they also played a major role in deepening the rifts that ultimately destroyed the union (304). That outcome might seem less surprising had Hulsebosch attended to the "horizontal"—geopolitical—dimension of the founders' federalism, to postcolonial New York's relations with other states as well as with the new "empire."

But this is undoubtedly asking too much. Hulsebosch's brilliant book will have a profound impact on our understanding of the American Revolution and the early history of state-making in the federal republic. Other scholars, inspired by Hulsebosch's example, can explain the coming of the Civil War.

Peter S. Onuf

University of Virginia

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