WHO WERE THE REAL FOUNDERS?

Introduction

Gregory Ablavsky’s Federal Ground seeks to change how American law­yers think about the Founding Era, as almost everything that is central for ordinary histories has been pushed aside. 1 1 Gregory Ablavsky, Federal Ground: Governing Property and Violence in the First U.S. Territories (2021). More conventional sources that are familiar to legal readers include Akhil Reed Amar, America’s Constitution: A Biography (2005); Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution (2016); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (1996); Gordon S. Wood, The Creation of the American Republic, 1776–1787 (1969); Gordon S. Wood, The Radicalism of the American Revolution (1993); see also Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (2018). ... Close Ablavsky does not mention the Constitutional Convention or the Federalist Papers, nor does he discuss Lockean liberty or Montesquieu’s separated powers. 2 2 Authors that emphasize ideological pamphlets and political philosophers include Bernard Bailyn, The Ideological Origins of the American Revolution (1967); Alison L. LaCroix, The Ideological Origins of American Federalism (2010); Donald S. Lutz, The Ori­gins of American Constitutionalism (1988). Ablavsky cites John Locke only once, refer­ring to his ideas about occupying and improving land. See Ablavsky, supra note 1, at 40 (“Though few on the late eighteenth-century frontier had read John Locke, they unwittingly echoed him when they described the West as ‘almost a State of Nature,’ with land free for the taking.”). ... Close The focus is intercul­tural conflict with Native people and frontier governments, which deter­mined where “American country” was located and who would thrive in that kind of place. 3 3 The term “American country” is mine, indicating a deliberate contrast with the commonly used legal phrase “Indian country.” See, e.g., 18 U.S.C. § 1151 (2018) (defining “Indian country”); Ablavsky, supra note 1, at 5 (referencing “Indian country”); cf. id. at 1 (describing “two newly established jurisdictions in the so-called western country”). The use of terms like “Native,” “Native American,” “Indian,” and “Indigenous” is inevitably compli­cated by historical and current conditions that surround racial hierarchy and colonial em­pire. See Thomas King, The Inconvenient Indian: A Curious Account of Native People in North America, at xii–xiii (2012) (“Terminology is always a rascal.”); David E. Wilkins & Heidi Kiiwetinepinesiik Stark, American Indian Politics and the American Political System, at xvi (4th ed. 2018). This Book Review uses “Native people” and “Native American” inter­change­ably, despite the terms’ imperfections, to promote accessibility for a legal readership. ... Close Ablavsky’s Founders were not obsessed with political theory, and most of them did not live in capital cities. 4 4 Ablavsky, supra note 1, at 4 (“[I]n both personnel and authority, the early federal government was most present not in state capitals but in the liminal spaces around the na­tion’s ragged edges, where states’ authority was thin and where the supposed territory of the United States butted up against the jurisdictions of other sovereigns.”); id. at 211 (noting that, even when leading businessmen in Tennessee invoked the high rhetoric of sovereignty, they often “sought to benefit themselves, not Tennessee”). ... Close The book explores American law from the outside in, and its results challenge assumptions about the United States’ original structure. 5 5 Other scholars have taken a similar approach, with appreciably less emphasis on legal materials. See, e.g., Paul Frymer, Building an American Empire: The Era of Territorial and Political Expansion 24 –25 (2017); Bethel Saler, The Settlers’ Empire: Colonialism and State Formation in America’s Old Northwest 1 (2014). ... Close

This Book Review uses Ablavsky’s research as a chance to raise norma­tive questions during a moment when law schools—and America itself—are reconsidering people and histories that have been marginalized for too long. In dialogue with worldwide protests, activists and scholars of color have demanded racial justice for African Americans, 6 6 See Alexandra Filindra, Who Are We? How Did We Get Here? And Where Are We Going? New Questions, New Concepts, New Ideas and the Role of Ascriptive Categories in Political Life: A Special Edited Collection of Essays, 6 J. Race, Ethnicity & Pol. 1, 1–2 (2021) (“In response to yet more brazen police shootings of Black people, a multiracial movement led by Black Lives Matter activists took to the streets to demand racial justice, economic fairness, equality, and an end to all forms of state violence.”); Oluwakemi Aladesuyi, How Black Lives Matter Went Global, by Co-Founder Patrisse Cullors, Fin. Times (Dec. 4, 2020), https://www.ft.com/content/c6eac3c7-3f38-49be-9caa-f3aa1248184a (on file with the Columbia Law Review) (“The fight for racial justice, as embodied by BLM, compelled com­munities to take to the streets en masse this year.”). ... Close and law schools have responded with programming, scholarship, and institutional re­forms. 7 7 See, e.g., Blair Chavis, Kevin Davis & Liane Jackson, Moment or Movement? Lawyers Involved in Civil Rights Battles Reflect on Recent Demands for Racial Justice, A.B.A. J., Oct.–Nov. 2020, at 34; Max Marbut, Florida Coastal School of Law Joins State Consortium, Jacksonville Daily Rec. (July 1, 2020), https://www.jaxdailyrecord.com/article/florida-coastal-school-of-law-joins-state-consortium [https://perma.cc/484Z-2J52] (describing an interstate entity promoting racial justice); Karen Sloan, Law Schools Unite With ABA to Take on Racist Policing, Law.com (Oct. 14, 2020), https://www.law.com/2020/10/14/law-schools-unite-with-aba-to-take-on-racist-policing/ (on file with the Columbia Law Review) (de­scribing a collaborative initiative between law schools and the American Bar Association to improve police practices). ... Close Those phenomena have required and also produced significant changes in perceptions of American history, as modern institutions and practices have been reconnected with exclusion and violence from the past. 8 8 Cf. Sarah Ellison, How the 1619 Project Took Over 2020, Wash. Post (Oct. 13, 2020), https://www.washingtonpost.com/lifestyle/style/1619-project-took-over-2020-inside
-story/2020/10/13/af537092-00df-11eb-897d-3a6201d6643f_story.html (on file with the Columbia Law Review). As David Scott has argued, “[M]orally and politically what ought to be at stake in historical inquiry is a critical appraisal of the present itself, not the mere re­construction of the past.” David Scott, Conscripts of Modernity: The Tragedy of Colonial Enlightenment 41 (2004). ... Close

Most law schools have not paid comparable attention to issues con­cerning Native people, 9 9 See, e.g., Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harv. L. Rev. 1787, 1794 (2019) [hereinafter Blackhawk, Paradigm] (“To the extent that federal Indian law is discussed at all within public law, the field is often marginalized into a ‘tiny backwater.’” (quoting Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 Harv. L. Rev. 381, 383 (1993))); Seth Davis, American Colonialism and Constitutional Redemption, 105 Calif. L. Rev. 1751, 1753 (2017) (“[T]he law of American colonialism is not part of the constitutional canon taught to first-year law students or discussed by constitutional scholars.”); K-Sue Park, This Land Is Not Our Land, 87 U. Chi. L. Rev. 1977, 1982 (2020) (“The challenge of build­ing productive dialogue on [our past] continues to plague . . . the legal community.”); Angela R. Riley, Native Nations and the Constitution: An Inquiry Into “Extra-Constitutionality”, 130 Harv. L. Rev. Forum 173, 173 (2017) (“American Indians are—met­aphorically and literally—outside the standard frame of American law.”). ... Close but books like Federal Ground reinforce calls for systemic change by describing the historical preconditions of modern American law. Descriptions of history always have implications for the pre­sent, legitimating some actors and outcomes while diminishing others. 10 10 See Jill Lepore, This America: The Case for the Nation 15 (2019) (“Nations are made up of people but held together by history, like . . . bricks and mortar.”); Robert W. Gordon, Taming the Past: Essays on Law in History and History in Law 7 (2017) (“Almost every important political or legal controversy brings forth arguments for preserving or re­covering—or discarding or revising—something in the past . . . .”). ... Close Ablavsky’s account of the past—emphasizing Native people and their ri­vals—generates an opportunity for readers to rethink current conditions and, perhaps, to imagine a better future. 11 11 See Frederick E. Hoxie, This Indian Country: American Indian Activists and the Place They Made 13 (2012) (“The American habit of disregarding living Indians is not founded in ignorance or prejudice; it is the product of history—of decisions made at the time of the nation’s founding, then etched into policy and absorbed into popular belief.”); id. at 401 (suggesting that historical study can also “open[] a doorway to the discovery of a new place: this Indian country”). ... Close This is the kind of scholarship that a broad legal audience needs to read, and it charts a path for other writers to follow.

This Review has three parts. Part I describes Ablavsky’s work, which involves scholarship and primary materials that will be unfamiliar to many legal readers. Ablavsky identifies a chaotic mix of “property pluralism” and intercultural violence along the American frontier, which in turn affected the emergence of constitutional statehood. Part II describes implications for three areas of mainstream legal discourse: property, administrative law, and constitutional originalism. Each of those modern topics is trans­formed and developed by Ablavsky’s history of territorial government. Part III explains how scholarship like Federal Ground can influence national le­gal communities that exist at the intersection of doctrine, scholarship, and education. Legal history always affects the present, and Ablavsky’s choice to emphasize Native experiences represents a timely and important con­tribution to legal culture writ large.