Constitutionalism in Unexpected Places 2020 PDF

CONSTITUTIONALISM IN UNEXPECTED PLACES Author(s): Farah Peterson Source: Virginia Law Review , May 2020, Vol. 106, No. 3 (May 2020), pp. 559-609 Published by: Virginia Law Review Stable URL: https://www.jstor.org/stable/10.2307/27074703 REFERENCES Linked references are available on JSTOR for this article: https://www.jstor.org/stable/10.2307/27074703?seq=1&cid=pdf- reference#references_tab_contents You may need to log in to JSTOR to access the linked references. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at https://about.jstor.org/terms Virginia Law Review is collaborating with JSTOR to digitize, preserve and extend access to Virginia Law Review This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION VIRGINIA LAW REVIEW VOLUME 106 MAY 2020 NUMBER 3 ARTICLES CONSTITUTIONALISM IN UNEXPECTED PLACES Farah Peterson* Before, during, and after the ratification of the Federal Constitution of 1787, Americans believed that they were governed under an unwritten constitution, a constitution that described an arrangement of power, confirmed ancient rights, and restricted government action. The existence of this unwritten constitution, and particularly its continuity, is something legal scholars have not adequately understood. Instead, both originalists and scholars of the “living” constitution think of 1787 as a hard break from the past and a starting point for their investigations. But Americans of the Founding generation did not share our view that the only constitution that mattered was the one the Framers designed. This Article focuses on a feature of American colonial life that reappeared with striking continuity for three generations after Independence—the vindication of unwritten constitutional rights by mob action, and specifically, the tradition of mobs turning to Indian costume to express a specific series of constitutional grievances. During the age of the Revolution, many Americans believed that mobs in the streets performed a legitimate role in the enforcement of their unwritten constitution. These mob actions involved ritualistic violence * Associate Professor of Law and History, University of Virginia School of Law. I would like to thank Bridget Fahey, Risa Goluboff, Sally Gordon, Hendrik Hartog, Tony Kronman, Bill Nelson, Rich Schragger, and Eugene Sokoloff for helpful comments on an earlier draft. I am also grateful to the participants in the faculty workshop at Georgetown University Law Center and at the University of Pennsylvania School of Law’s Legal History Workshop. 559 This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 560 Virginia Law Review [Vol. 106:559 and consistent, non-linguistic symbolism. The endurance of this form of constitutional engagement, employing the same symbols to assert the same suite of legal claims, is simply astonishing. It is evidence of the tenacity of a series of constitutional commitments predating the Founding that were not encompassed by, or replaced with, a written constitution. This Article also makes a methodological point. An exclusive focus on official texts and the words, pamphlets, and letters of great men robs historical investigation of its depth and risks missing crucial insights about the past. Important evidence revealing how Americans conceived of their constitution and of themselves as legal actors can be found in their customs, in behavior, in performances in public spaces, and in the life of important ideas in literature and art. This Article focuses on a peculiar phenomenon as a way of modeling this point. The white protestor in Indian costume may seem like an oddity, but a deeper investigation reveals him to be a missing link, a key to how Americans believed their society was constituted, how they thought about justice, and how they understood the obligations the Revolution laid upon its inheritors. INTRODUCTION........................................................................... 560 I. THE CONSTITUTIONALISM OF CROWD ACTIONS........................ 567 II. THE MEANING OF INDIAN DRESS............................................ 572 III. THREE GENERATIONS OF DEBTOR CONSTITUTIONALISM......... 585 CONCLUSION.............................................................................. 606 INTRODUCTION What every schoolchild learns about the Boston Tea Party is that a group of men dressed themselves as Indians and dumped tea into the Boston Harbor. If the social studies teacher is good and the child is paying attention, the lesson will also connect those actions to the proto- Revolutionary slogan, “no taxation without representation.” But why do we teach the Boston Tea Party this way? We do not remember what other men were wearing when they did other historically significant things. For this event, however, the choice of costume has always been an integral element of the story. In the 1830s, an old shoemaker looking back on his role in the Tea Party began his recollections of that night this way: This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 561 It was now evening, and I immediately dressed myself in the costume of an Indian, equipped with a small hatchet, which I and my associates denominated the tomahawk, with which, and a club, after having painted my face and hands with coal dust in the shop of a blacksmith, I repaired to Griffin’s wharf, where the ships lay that contained the tea. When I first appeared in the street after being thus disguised, I fell in with many who were dressed, equipped and painted as I was, and who fell in with me, and marched in order to the place of our destination. 1 A legal scholar reading this should immediately have a few questions. He dressed as an Indian, complete with a symbolic weapon that was not a tomahawk but that he decided to call a tomahawk. He painted his skin, and not just his face in order to disguise himself, but his hands, too. This was a performance meant to express something. If the shoemaker’s recollection is accurate, then the blacksmith from whom he borrowed coal dust would have understood its message and so would all of the men out that night in the streets of Boston. And whether accurate in every detail or not, there is significance in his choice to remember it that way. Those mechanics, artisans, and labor organizers who discovered and elevated this shoemaker in the 1830s as one of the last surviving members of a heroic generation, and who promoted his memoir as part of an elaborate Independence Day commemoration, must have understood the message he conveyed by making Indian costume so central to the story.2 They must, in fact, have meant to amplify it. But from this distance of time, we no longer understand it. Scholars know (or should know) the Boston Tea Party as a legal event. The Tea Party protestors asserted that their constitutional rights had been violated and demanded redress. But what we have failed to appreciate is that the Bostonians believed that their costumes added something to that claim.3 It is important that Americans dressed up to assert their rights and it is just as important that Americans remembered the costume as integral, 1 A Citizen of New York, A Retrospect of the Boston Tea Party, with a Memoir of George R.T. Hewes, a Survivor of the Little Band of Patriots Who Drowned the Tea in Boston Harbour in 1773, at 38 (New York, S.S. Bliss 1834). 2 See Alfred F. Young, George Robert Twelves Hewes (1742–1840): A Boston Shoemaker and the Memory of the American Revolution, 38 Wm. & Mary Q. 561, 619–20 (1981). 3 For another consideration of the importance and legal significance of clothing in early America, see Laura F. Edwards, James and His Striped Velvet Pantaloons: Textiles, Commerce, and the Law in the New Republic, J. Am. Hist. (forthcoming) (arguing that “[t]extiles... mattered” and that “[w]hen draped in this form of property, people of marginal status assumed distinct legal forms that were difficult to ignore”). This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 562 Virginia Law Review [Vol. 106:559 although we may not understand why. And the mystery of it grows in importance when we realize that the costume element of the Boston Tea Party demonstration was far from unique to that event. From the 1760s through at least the 1840s, this was a common element in many protests against sheriffs bearing eviction notices or threatening action from a creditor. White Americans would dress up in Indian costume, make up their faces with their idea of Indian war paint, and participate in destructive and sometimes violent demonstrations. This is a strange fact about the past, and difficult to square with our lionization of that group of ordinary men now ennobled by the title, “the Founding generation.” But this oddity, and others like it, are critical evidence if we are to understand the constitutional ideas and legal imaginations of men of that generation and those that followed. The Boston Tea Party participants thought they were making a constitutional argument and so did the all of the protestors dressing in costume to assert their claims in the decades that followed. But what did “constitution” mean? We are accustomed to using that word in one way before the Founding-era, and in a completely different sense as soon as Americans began writing their plans of government down. But the longevity and apparent power of this protest symbol attests to the endurance of a British North American form of constitutional expression that did not die out at the Founding and that was not successfully replaced by written constitutions for several generations. Before, during, and after the ratification of the Federal Constitution of 1787, Americans believed that they were governed under an unwritten constitution, a constitution that confirmed ancient rights and that restricted government action. In discussing an “unwritten constitution,” this Article does not draw the distinction that some scholars have between the text of the written Constitution and the policies and principles that underlie it. Nor does it mean to invoke the distinction between the text of the Constitution and the penumbra that has developed around it since. To Americans of the Founding generation, the unwritten constitution was simply the fundamental law: the law of their forefathers, the law justifying their pride in their English heritage, the law that they fought to defend in the Revolution. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 563 The existence of this unwritten constitution, and particularly its continuity, is something legal scholars have not adequately understood.4 Originalists have missed its importance because of their focus on the meaning of ratified constitutional text. They believe that the moment of ratification “fixed” constitutional rights and obligations, and that these may be found in the Constitution’s words. The main branches of originalist debate concern where to find the meaning of those words, whether in convention debates or in the ratification debates or elsewhere.5 A premise underlying this view is that Founding-era Americans would have agreed that the written Constitution was the be-all-end-all, at least as far as constitutions go.6 Non-originalist scholars, on the other hand, have sought to identify values that have come into the Constitution over its two hundred year “life.”7 Building on the concept of a “penumbra” around constitutional 4 In discussing the existence of an unwritten constitution at the Founding, I do not take sides in debates over “popular constitutionalism,” the idea that “the public generally should participate in shaping constitutional law more directly.” Mark Tushnet, Taking the Constitution Away from the Courts 194 (1999); see also Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 Harv. L. Rev. 1594, 1616 (2005) (reviewing Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004)); Larry Kramer, Response, 81 Chi.-Kent L. Rev. 1173, 1182 (2006); Suzanna Sherry, Putting the Law Back in Constitutional Law, 25 Const. Comment. 461, 462–63 (2009). Those debates focus on how the written Constitution is implemented—and specifically on the role of “the people,” in ensuring it is “properly interpreted.” Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 5–7 (2004). This Article, by contrast, focuses on a separate source of law entirely, an unwritten constitution, and how citizens both understood and enforced it during the Founding period. 5 It has become commonplace to remark on the size of the literature on originalism. See Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L.J. 1085, 1085 (1989) (systemizing the “voluminous” literature in existence thirty years ago); Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1, 3 (2009) (citing Farber and noting the literature’s multi-fold growth in the ensuing twenty years). I cannot convey the nuances of this literature here, but for an overview, see, e.g., Robert W. Bennett & Lawrence B. Solum, Constitutional Originalism: A Debate (2011). I mention originalism here only to bring out what I see as its undisputed premise: that its goal is to discover the content of a constitution created at a single moment in time—at its “origination.” 6 See generally Antonin Scalia, Judicial Adherence to the Text of Our Basic Law: A Theory of Constitutional Interpretation, Address at the Catholic University of America (Oct. 18, 1996), transcript available at https://www.proconservative.net/PCVol5Is225ScaliaTheory ConstlInterpretation.shtml; see also Randy E. Barnett, Underlying Principles, 24 Const. Comment. 405, 413 (2007) (“To remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text we are expounding.”). 7 Bruce Ackerman is perhaps the most prominent current theorist of “living constitutionalism.” See, e.g., Bruce Ackerman, The Living Constitution, 120 Harv. L. Rev. 1737 (2007). Bill Eskridge, who has argued that certain “super-statutes” have become so This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 564 Virginia Law Review [Vol. 106:559 terms, these scholars observe that the Constitution’s words have thickened with meaning over time and through their use by an evolving society.8 Akhil Amar’s recent book, America’s Unwritten Constitution, is a prime example of this genre: he argues that that through court cases and rights movements, Americans have built interstitial meanings into the Constitution.9 But even those scholars start from the premise that all of this development began in 1787. In short, originalist and non-originalist scholars share a perspective on the written Constitution: that it operated as a hard break.10 Even when scholars and jurists look back further than the 1780s, they do so largely to learn whether certain terms contained in constitutional text incorporated a pre-existing common law meaning.11 They do not look essential that they are now within the “working constitution,” also belongs among the greats. See William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 Duke L.J. 1215, 1216–17 (2001); see also Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 413–14 (2007) (defining the “functional” constitution to include formal practices, norms, and structures of government). My project departs from these now familiar forms of living constitutionalism. It is not about a written Constitution that evolves because it is “alive,” but about a separate and supplementary unwritten constitution that existed before and persisted through the social and legal changes of the 1780s. Some of the values of that unwritten constitution were also reflected in our written Constitution and some of them were not. 8 This idea’s scholarly heritage goes back at least to Karl Llewellyn, see K.N. Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1, 28 (1934), and its judicial heritage is arguably much older, see Brannon P. Denning & Glenn Harlan Reynolds, Comfortably Penumbral, 77 B.U. L. Rev. 1089, 1092–93 (1997) (arguing that McCulloch v. Maryland is “the quintessential example of penumbral reasoning”). 9 Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By, at ix–xi (2012). 10 See, e.g., Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 6–7 (2015) (explaining that a “core idea[]” of originalist constitutional theory is that “the original meaning... of the constitutional text is fixed at the time each provision is framed and ratified”). The originalist shares this focus on that one moment with, for instance, Akhil Amar’s premise in America’s Unwritten Constitution. There, too, the critical question is, “[h]ow can Americans be faithful to a written Constitution”? Amar, supra note 9, at x. The difference between them is the belief that as Americans “venture beyond” the writing, they create what Amar calls an “unwritten Constitution” that “supports and supplements the written Constitution without supplanting it.” See id. at x–xi. This brand of “living constitutionalism” agrees with the premise that the only important American constitution was “born” in 1787 and began to develop from there. It does not address the topic of this Article: a strong heritage of constitutional values that were not included in the text, but that Americans continued to defend as their fundamental rights in the years after 1787. 11 See, e.g., Michael W. McConnell, Time, Institutions, and Interpretation, 95 B.U. L. Rev. 1745, 1756–57 (2015) (“The Seventh Amendment and the Habeas Corpus Clause have consistently been interpreted in light of the common law as of 1791.”); Bernadette Meyler, Towards a Common Law Originalism, 59 Stan. L. Rev. 551, 552 (2006) (“[O]riginalists urge This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 565 back to a constitution that exists separately from our written one. They share a view that whatever American colonial subjects believed a “constitution” was before the Revolution, Americans altered that idea completely once the property-holding gentlemen among them met and decided to write something down. This Article starts from a different premise: that Americans of the Founding generation did not share our view that the only “constitution” that mattered was the one the Framers designed. Instead, having grown up as Britons, and having lost friends and family in a war to defend their rights as such, they still thought of themselves as the beneficiaries of a constitution of customary right. This is not to deny the importance of the written Constitution, or to dispute that it was significant that the Founders decided to write something down.12 It is only to assert, as does the written Constitution itself, that the Founders did not intend that “[t]he enumeration in the Constitution[] of certain rights” would “be construed to deny or disparage others retained by the people.”13 The way legal scholars ask historical questions has hindered our ability to appreciate the endurance and the continuity of unwritten constitutional- ism. It is common for a legal scholar to plumb the historical record to either confirm or deny a theory about what the Constitution means for us right now. But the archive does not function well as a magic eight ball. The yes/no/maybe/ask again approach to historical research, by fixating on narrow questions about constitutional text, forecloses really interesting questions about what a constitution is. The problem with the way legal scholars use history is not only the questions we ask, it is also our methodology.14 As any historian can tell that particular terms and phrases—including ‘law of nations,’ ‘habeas corpus,’ ‘privileges and immunities,’ ‘otherwise re-examined,’ and ‘assistance of counsel’—should be interpreted in light of their connotations under the common law.”); see also Saenz v. Roe, 526 U.S. 489, 524 (1999) (Thomas, J., dissenting) (“The colonists’ repeated assertions that they maintained the rights, privileges, and immunities of persons ‘born within the realm of England’ and ‘natural born’ persons suggests that, at the time of the founding, the terms ‘privileges’ and ‘immunities’ (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens and, more broadly, by all persons.”). 12 See Nikolas Bowie, Why the Constitution Was Written Down, 71 Stan. L. Rev. 1397, 1400 (2019). 13 U.S. Const. amend. IX. 14 Even a small sampling of the most recent articles doing originalist work reveals the sources they find relevant. See, e.g., Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 Stan. L. Rev. 443, 445 (2018) (canvassing legal dictionaries, convention debates, “The Federalist Papers,” and “Correspondence and Writings from Founding-Era Figures”). So closely tied is the project of originalism to these types of sources that there is a secondary This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 566 Virginia Law Review [Vol. 106:559 you, going into an archive can be a humbling experience. What one finds in a historical record provides a small window onto the past, through which we can dimly perceive only a part of the action. When a legal scholar goes into the archive with a fixed question in mind, she must dismiss as irrelevant anything that is not responsive, along with anything that she does not understand. But given the very limited view the historical record provides, dismissing any evidence at all risks missing important truths. The puzzles one encounters during primary research are actually the archives’ greatest prizes. Instead of skipping over these to chase after hints in the records that might confirm a favorite hunch or cherished thesis, it is worthwhile to linger on the oddities. Exploring these reveals the past on its own terms, allowing the record to propose its own questions, and suggest its own answers. This Article is about a protester that I will call the “white Indian,” because that is what this man would have called himself. He emerged again and again from archival research while I was hunting for something else. Wherever conflicts arose over the fairness of a law pitting owners or creditors against renters and debtors, whether in staid newspaper debates or in all-too-frequent armed insurrections, this white man in moccasins, or with a blanket around his shoulders, or with a painted face, or wielding a tomahawk, appeared as the avatar of the honest debtor or the dispossessed squatter. I was so puzzled by him that I stopped what I was doing and gave this recurring figure a closer look. I found that at least two scholarly works had already lingered over white Indians: an elegant short essay by Alan Taylor, written when he was still a graduate student, and a thoughtful full-length intellectual history by Philip Deloria.15 But given my preoccupations as a legal historian, I read these figures in a different light. I came to understand that they represented a series of interconnected ideas about authentic American identity and virtue.16 And more than this, literature debating how best to use each of them. See, e.g., Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 360 (2014); cf. Jennifer L. Mascott, The Dictionary as a Specialized Corpus, 2017 BYU L. Rev. 1557, 1561. 15 Philip J. Deloria, Playing Indian 5 (1998); Alan Taylor, “Stopping the Progres of Rogues and Deceivers”: A White Indian Recruiting Notice of 1808, 42 Wm. & Mary Q. 90, 94 (1985). 16 This Article does not fully explore import of this custom to the history of American racism, or its connections, such as they are, to the blackface tradition. For a cultural history starting point, see Dressing in Feathers: The Construction of the Indian in American Popular Culture 2–3 (S. Elizabeth Bird ed., 1996); Deloria, supra note 15, at 5. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 567 the Indian dress was a potent legal symbol, both for the people who wore the costume and the people who saw it. I came to see the white man in Indian dress as an assertion of rights under America’s unwritten constitution. This Article will explain why, and in the process, model an alternative way of bringing history into legal scholarship. To take Americans’ unwritten constitution seriously, one has to see as relevant behaviors, norms, and cultural practices typically invisible to the legal scholar. Scholars parsing and reparsing text, opinions, dictionaries, and the like have missed the unwritten constitution because its defenders often made their claims out of court. My goal is not to resolve the relationship between the unwritten constitution and the written one. My goal is simply to convince you that it exists, to suggest that the relationship between it and the written Constitution is important, and to begin looking for this constitutionalism, which appears more often than not in unexpected places. This Article proceeds in three parts. First, it explains why this strange artifact, mob action by white men in Indian costume, should be read as an expression of unwritten constitutionalism. Then, it will sound a theory on some of the specific constitutional rights this costume invoked. And finally, it will show how long this form of constitutional expression persisted and discuss some of the implications of this long life for how we should understand our legal past. I. THE CONSTITUTIONALISM OF CROWD ACTIONS The men engaged in the civil unrest that led to the new American Republic were asserting their entitlement to the “essential privileges of the British constitution.”17 It was the constitution whose principles, John Adams asserted, were “intimately known,... sensibly felt by every Briton [and] it is scarcely extravagant to say,... drawn in and imbibed with the Nurses Milk and first Air.”18 But their constitution was not written, had not been deliberated upon, had no specific origin point. As Bernard Bailyn described it, what they meant by the term “constitution” was “the constituted—that is, existing—arrangement of governmental 17 Thomas Fitch et al., Reasons Why the British Colonies in America Should Not Be Charged with Internal Taxes (1764), reprinted in 1 Pamphlets of the American Revolution, 1750–1776, at 378, 388–89 (Bernard Bailyn ed., 1965). 18 John Adams, Adams’ Diary Notes on the Right of Juries (1771), in 1 Legal Papers of John Adams 228, 230 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965). This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 568 Virginia Law Review [Vol. 106:559 institutions, laws, and customs together with the principles and goals that animated them.”19 John Adams would compare the British constitution to the “Constitution of the human Body,” which included “certain Contexture[s] of Nerves, fibres, Muscles, or certain Qualities of the Blood and Juices” whose end was life and health, and to the constitution of a watch, which had “a certain Combination of Weights, Springs, Wheels and Levers” whose “Use and End is the Mensuration of Time.”20 Government was “a Frame, a scheme, a system, a Combination of Powers,” including those of “the King, the Lords, the Commons, and the People.”21 What was special about the British constitution, Adams wrote, was that the preservation of Liberty is its End,... as much as Life and Health are the Ends of the Constitution of the human Body, as much as the Mensuration of Time is the End of the Constitution of a Watch, as much as Grinding Corn is the End of a Grist Mill, or the Transportation of Burdens the End of a Ship.22 The Founders conceived of rights under this constitution, not as a list of agreed-upon immunities from the power of normal legislation or executive command, but rather, as any of the “essentials and Fundamentals” that guaranteed the efficacy of this constitution for its grand purpose.23 British North Americans shared with fellow Britons a legal culture of self-congratulation, a belief that the way power had traditionally been arranged in British government, as between the Lords and People, King and Commons, landowner and tenant, defendant and jury, colony and metropole, was sufficient, without amendment, to guarantee the most perfect liberty to which they could aspire. The legal case Americans made in the Declaration of Independence was simply that their settled expectations had been disappointed. The word “constitution,” therefore, designated a status quo under a system of law that Dirk Hartog has described “not as an instrument of state policy but as... a reflection and 19 1 Pamphlets of the American Revolution, supra note 17, at 45. 20 1 Diary and Autobiography of John Adams 296–97 (L.H. Butterfield ed., 1961). 21 Id. at 297–98. 22 Id. at 298. 23 Id. at 297. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 569 a defender of community, customary authority.”24 One found this constitution, like other law, in “custom and community consensus,”25 to use J.R. Pole’s formulation, in prerogatives continuously asserted and continuously accepted. A mob in the streets represented a rupture in that community consensus. Such a rupture provided both the irrefutable proof of constitutional disorder and its remedy. And indeed, historians have accumulated a substantial record of the vindication of custom in eighteenth-century crowd actions, and of mobs gathering to conserve existing power arrangements. Pauline Maier has written about mobs sometimes using “extralegal means to implement official demands or to enforce laws not otherwise enforceable” or to “extend[] the law in urgent situations beyond its technical limits.”26 These “uprisings” she wrote, complemented existing law and power structures, proving “extra- institutional in character more often than they were anti-institutional.”27 Gordon Wood also emphasized that eighteenth-century American mobs “were not the anarchic uprisings of the poor and destitute.”28 He found that they “were not only excused but often directed and abetted by respectable members of the community” and that their behavior was marked by “discrimination in the choice of victims and force.”29 Likewise, John Phillip Reid has offered one anecdote after another showing eighteenth-century American mobs’ restrained application of law-like discretion: an incident in which a mob avoided destroying the wrong victim’s property; engaged in parlay with a sheriff and agreed to temporary forbearance; or gave legal justifications for its actions and notice that the violence would escalate if certain conditions weren’t met, among other examples.30 24 Hendrik Hartog, Distancing Oneself from the Eighteenth Century: A Commentary on Changing Pictures of American Legal History, in Law in the American Revolution and the Revolution in the Law 229, 241 (Hendrik Hartog ed., 1981). 25 Jack P. Greene, Law and the Origins of the American Revolution, in 1 The Cambridge History of Law in America 447, 470 (Michael Grossberg & Christopher Tomlins eds., 2008). 26 Pauline Maier, Popular Uprisings and Civil Authority in Eighteenth-Century America, 27 Wm. & Mary Q. 3, 4 (1970). 27 Id. at 7–8. 28 Gordon S. Wood, The Creation of the American Republic, 1776–1787, at 320–21 (2d ed. 1998). 29 Id. 30 John Phillip Reid, In a Defensive Rage: The Uses of the Mob, the Justification in Law, and the Coming of the American Revolution, 49 N.Y.U. L. Rev. 1043, 1055–57 (1974). This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 570 Virginia Law Review [Vol. 106:559 The Revolutionary Whig understanding was that these mobs were not apolitical, but rather, were the work of “groups who could find no alternative institutional expression for their demands and grievances, which were more often than not political.”31 A political grievance shared by a sufficient number of “the people” to result in a mass demonstration is, in the context of the constitution we’ve been discussing, a demand for constitutional redress. Indeed, “Good Whigs,” Gordon Wood tells us, sometimes were “willing to grant a measure of legitimacy to” mob actions because they “recognized and appreciated the political existence of the people ‘out-of-doors,’ that is, outside of the legal representative institutions.”32 Initially, the scholarship on American colonial mobs contrasted these features with the horrors of popular uprisings in Europe, including the bread riots of England and crowd actions in Revolutionary France. Richard Hofstadter once summarized the observations of so-called “consensus” historians when he wrote of eighteenth-century American riots that they were “low-key and almost charmingly benign.”33 But a 1974 masterwork on the European crowd by George Rudé rejected earlier European scholars’ descriptions of crowd actions as animalistic responses to provocation, “the instinctive reaction of virility to hunger.”34 Instead, Rudé painted them too as purposeful, restrained, and nonviolent.35 The eighteenth-century American asserting his legal rights by rallying out-of- doors was hardly unique; he shared a culture of political engagement with European cultural cousins like the French, and of course, with his fellow Briton. In fact, American mobs demonstrated the qualities E.P. Thompson described as hallmarks of late eighteenth-century crowd actions in England, especially their “countertheatre.”36 Like their contemporaries in England, Americans employed a “language of crowd symbolism” using 31 Wood, supra note 28, at 320. 32 Id. at 320–21. 33 Richard Hofstadter, Reflections on Violence in the United States, in American Violence: A Documentary History 3, 10 (Richard Hofstadter & Michael Wallace eds., 1970). Later “New Left” historians challenged this thesis by showing that the eighteenth century saw its share of violent and uncontrolled mob actions instigated by economic complaints against the rich. See, e.g., Jesse Lemisch, Jack Tar in the Streets: Merchant Seamen in the Politics of Revolutionary America, 25 Wm. & Mary Q. 371, 406 (1968). 34 T.S. Ashton & Joseph Sykes, The Coal Industry of the Eighteenth Century 131 (1929). 35 George Rudé, The Crowd in History: A Study of Popular Disturbances in France and England, 1730–1848, at 254 (2d ed. 1981). 36 E.P. Thompson, Customs in Common 57 (1993). This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 571 violence against property with “an almost ritualistic significance,” in order to perform a “theatre of threat and sedition.”37 They also displayed the other two characteristics Thompson noted as typical: a remarkable “capacity for swift direct action,” which involved responding on the spot and with decisive force to perceived invasions of customary rights or privileges, and, key for our analysis, a version of “the anonymous tradition,” that is, covering their faces and acting under cover of night.38 Masks, in other words, were a characteristic element of the mob actions through which subjects prosecuted constitutional grievances on both sides of the Atlantic. But there was more to the white Indian than E.P. Thompson’s descriptions of British crowd actions capture. Thompson describes his crowds’ tendency to operate under cover of darkness as a symptom of “a society of total clientage and dependency,” in which “any open, identified resistance to the ruling power may result in instant retaliation—loss of home, employment, tenancy, if not victimization at law.”39 By contrast, the costume of the American Indian, at once noble and terrifying, was not about concealment. It contained within it what the Russian theorist Mikhail Bakhtin has described as the carnivalesque tradition, a boisterous throwing-off of social hierarchy and mores, a world “upside-down.”40 It is fitting that Ebenezer Macintosh, the tradesman who led the mob in Boston protesting the Stamp Act and claimed a role in the Boston Tea Party, got his training, as it were, as an organizer of Boston’s annual Pope’s Day celebration, with its ritual costuming, effigies, crownings, and debasements.41 Indian costume was a critical part of how the “people out-of-doors” made known their constitutional claims: not just with violence, but with theater.42 While the Boston Tea Party is the most well-remembered 37 Id. at 67. 38 Id. at 66, 69. 39 Id. at 66. 40 Mikhail Bakhtin, Rabelais and His World 426 (Helene Iswolsky trans., 1968). 41 See Brendan McConville, The King’s Three Faces 56–63, 69 (2006); Simon P. Newman, Parades and the Politics of the Street: Festive Culture in the Early American Republic 21–22 (1997); William Pencak, Play as Prelude to Revolution, in Riot and Revelry in Early America 125, 133–34 (William Pencak et al. eds., 2002). 42 The Indian dress tradition also shared something in common with “rough music,” also called “skimmington” or “shivaree,” the American custom of enforcing social and sexual mores through loud and boisterous rituals meant to publicly embarrass transgressors. See, e.g., Thomas J. Humphrey, Crowd and Court: Rough Music and Popular Justice in Colonial New York, in Riot and Revelry in Early America, supra note 41, at 107; Brendan McConville, The This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 572 Virginia Law Review [Vol. 106:559 instance of mob action in Indian dress, another episode in nearby Weston, Massachusetts, in which a mob destroyed the home and business of an innkeeper selling tea, more clearly demonstrates that disguise alone was not the goal of the costume. First, a crowd gathered in front of the Inn and issued “a loud Indian WHOOP, and immediately went off without speaking.”43 They returned that night, “disguised with Paints, Paper Visages, &c” and methodically “ransacked” the building.44 They did not call attention to themselves, leave, and then return with different clothes in a cartoonish attempt to avoid recognition. In fact, a newspaper report mentions that as mob participants destroyed the inn’s contents, “[s]everal of them were known by the [p]eople in the [h]ouse and called to by [n]ame.”45 The Indian costume was not a bid for anonymity so much as a claim to universality; it was not a self-protective gesture but rather a self- assertive one. II. THE MEANING OF INDIAN DRESS To the Founding generation, the word “constitution” described the constituted arrangement of their community as it had developed over time. The word embraced the arrangement of institutions, the practices of political engagement, the doctrines of legal restraint on power, and the formal relations between the orders of society. Its aim was the preservation of all the accreted immunities and privileges contributing to their sense, specific culturally and specific in historical time, of what Rise of Rough Music: Reflections on an Ancient New Custom in Eighteenth-Century New Jersey, in Riot and Revelry in Early America, supra note 41, at 87; Steven J. Stewart, Skimmington in the Middle and New England Colonies, in Riot and Revelry in Early America, supra note 41, at 41. Both in “rough music” and in the white Indian tradition, a crowd gathered to enforce a community sense of right and wrong. In both cases, there was an element of play. In the “rough music” tradition, just as in the Pope’s Day carnival, or in the ordered eighteenth-century riot, a purposeful crowd was often in equipoise between playfulness and violence, tipping easily in either direction. When I have presented this Article, a common observation is that the protesters I describe here seem pretty scary. But in saying that the white Indian tradition was unwritten constitutionalism, I am making a statement about its power, its legitimacy, and its status as “law.” I do not mean to say that it was “safe” or that it was “good,” whatever that might mean. As E.P. Thompson has pointed out, “the rituals of rough music and charivari, transposed across the Atlantic, contributed not only to the good-humored ‘shivaree’ but may also have given something to lynch law and the Ku Klux Klan.” Thompson, supra note 36, at 523–24. 43 Mass. Gazette & Bos. Wkly. News-Letter, Mar. 31, 1774, at 3. 44 Id. 45 Id. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 573 “liberty” entailed. The claim American Revolutionaries made in the Declaration of Independence and elsewhere, that Parliament and the King had violated this unwritten constitution, was not just a negative. It also required Americans to engage in the collective project of asserting where Britain had gone wrong and what a constitution aimed at liberty really required. One consequence of the Revolution—and one that American elites would come to regret—was that it added ideas about economic justice to the American understanding of constitutional liberty. The rhetorical association of burdensome debt and rapacious creditors with tyranny became a key theme in American justifications for the rebellion. But while other themes in the legal and intellectual case for independence, including those concerning standing armies, taxes, representation, jury trial, and legislative privilege, took their power from their connection to the past century and more of English political history, this economic theme was distinctly an outgrowth of the colonial relationship. During the eighteenth century, British North America experienced what some historians have called a “consumer revolution,” a maturation of the market resulting in the proliferation of choice for all kinds of goods.46 North American demand for manufactured goods created a trade imbalance, which drained the colonies of hard currency and kept Americans chained to British credit. Out of a belief that this market dynamic strengthened imperial control, Britain worked to maintain this imbalance through policies requiring British North Americans to trade only with the mother country and discouraging domestic manufacturing. The colonies must remain loyal to the empire, Daniel Defoe explained, while they are “ty’d down for ever to us by that immortal, indissoluble Bond of Trade,” and so long as they “must fetch from Great Britain only, their Cloths, Woollen, Linnen, Cotton, and Silk; all their Haberdashery” as well as “wrought Iron, Brass, Chains, Edg’d Tools, Jack-work, Nails, Bolts, Screws, &c. all their heavy Ware, such as cast Iron and Brass, Guns, Mortars, Shot, Shells, Pots, Caldrons, Bells, Battery, &c.” and even “all their Clock-Work, Watch-Work, even so much as their Toys and Trinkets; all their House Furniture, Kitchen Furniture, Glass Ware, Upholstery Ware, Tin Ware,” and so on.47 46 See Neil McKendrick et al., The Birth of a Consumer Society: The Commercialization of Eighteenth-Century England 1 (1982); T.H. Breen, “Baubles of Britain”: The American and Consumer Revolutions of the Eighteenth Century, 119 Past & Present 73, 74–75 (1988). 47 Daniel Defoe, A Plan of the English Commerce 361 (London, Charles Rivington 1728). This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 574 Virginia Law Review [Vol. 106:559 But this bond of empire was tenuous. British political observers continually fretted that if the colonies started manufacturing finished goods, they might “set up for themselves, and cast off the English Government.”48 Welsh economist Josiah Tucker counseled that if Britain feared “that one Day or other they will revolt, and set up for themselves,” the empire must keep its colonies well supplied.49 “Let us not drive them to a Necessity to feel themselves independent of us,” he said, “As they will do the Moment they perceive, that they can be supplied with all Things from within themselves, and do not need our Assistance.”50 Fulfilling American demand for manufactured goods did not prevent Americans from chafing at the trade restrictions, however. As Richard Henry Lee explained, Britain’s trade policies meant that she “not only received the entire produce of the lands... but has besides involved the people here in a heavy debt, which agriculture... will probably never pay.”51 Mid-eighteenth-century colonial commentary on the trade imbalance already hinted at the connection the American Revolutionaries would make, increasingly directly, between constitutional liberty and freedom from coercive debt. Americans turned to smuggling, explained New York grandee Archibald Kennedy, “for like the industrious Bee, no Stone is left unturn’d, or Port in America untried, to bring something home to the Hive, or in other Words to answer the Ballance due to Great-Britain.”52 His 1750 essay echoed a common complaint: “In Debt we are, and in Debt we must be, for those vast Importations from Europe;... without, from the present Prospect of Things, ever being able to make suitable Returns; and of Course, we must become Bankrupts....”53 British North Americans, he warned, would not put up with these policies indefinitely. “[W]here People in such Circumstances are numerous and free, they will push what they think is for their Interest,” opposing the “Oppression” of laws that 48 Joshua Gee, The Trade and Navigation of Great-Britain Considered 71 (London, Amen- Corner 1730); see also J.M. Bumsted, “Things in the Womb of Time”: Ideas of American Independence, 1633 to 1763, 31 Wm. & Mary Q. 533, 534 (1974) (discussing arguments for separation). 49 Josiah Tucker, A Brief Essay on the Advantages and Disadvantages Which Respectively Attend France and Great Britain, with Regard to Trade 96 (London, T. Trye 1750). 50 Id. (emphasis omitted). 51 Richard Henry Lee, The Farmer’s and Monitor’s Letters to the Inhabitants of the British Colonies, at i, iii (Williamsburg, William Rind 1769). 52 Archibald Kennedy, Observations on the Importance of the Northern Colonies Under Proper Regulations 8 (New York, New Printing Office 1750). 53 Id. at 9–10. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 575 “they have no Hand in the contriving or making” and that therefore failed to accord with “the Conceptions we have of English Liberty.”54 Resentment over the trade laws grew in the 1760s in the aftermath of the French and Indian War. New York and Philadelphia experienced an unprecedented number of foreclosures and actions for debt during that period.55 At the same time, taxes to repay the war debt helped push record numbers onto the poor rolls in both cities.56 The end of the war brought economic challenges in the South as well. Planters had used the easy credit in the lead-up to war to mortgage unplanted crops to pay for luxury imports from Europe. In 1762, British merchants suddenly tightened credit when the value of local money fell against the British pound.57 By the time Parliament imposed the Stamp Act on the colonies, it was received as a calculated attempt, John Dickenson would write, to “draw[] off, as it were, the last drops of their blood.”58 Americans began to think of their indebtedness, and all the tricks and policies that created and maintained it, as another manifestation of imperial oppression. Looking back on this period, Thomas Jefferson accused British merchants of intentionally undermining their American trading partners. Having given “good prices and credit to the planter, till they got him more immersed in debt than he could pay without selling his lands or slaves” he explained, “[t]hey then reduced the prices given for his tobacco so that let his shipments be ever so great, and his demand of necessaries ever so economical, they never permitted him to clear off his debt.”59 The result was that heavy debts became “hereditary from father to son for many generations, so that the planters were a species of property annexed to certain mercantile houses in London.”60 And whereas in 1720, in an earlier credit crisis, the Virginian land baron Robert Carter felt he would rather “relye on the mercy of our Prince than... be subjected to the tyranny of the merchants who are daily encreasing their Oppressions 54 Id. at 10. 55 See Gary B. Nash, The Urban Crucible: Social Change, Political Consciousness, and the Origins of the American Revolution 250 (1979) (describing an unprecedented number of actions for debt in New York). 56 See Fred Anderson, Crucible of War: The Seven Years’ War and the Fate of Empire in British North America, 1754–1766, at 589 (2000). 57 See, e.g., id. at 592. 58 John Dickinson, The Late Regulations, in 1 The Writings of John Dickinson: Political Writings 1764–1774, at 207, 228 (Paul Leicester Ford ed., Philadelphia 1895). 59 Thomas Jefferson, The Article on the United States in the Encyclopédie Méthodique, in 10 The Papers of Thomas Jefferson 3, 27 (Julian P. Boyd ed., 1954). 60 Id. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 576 Virginia Law Review [Vol. 106:559 upon us,” by the 1760s, his son, Landon Carter, would see “prince” and merchant as an allied interest.61 The Currency Act and other measures placed the British government in cahoots with the merchant, whose very profession, the younger Carter said, “kick[ed] Conscience out of doors like a fawning Puppy,”62 and with the broker, “a villain in the very engagements he enters into.”63 Resistance to these venal creditors became a central rationale for rebellion.64 The growing belief that economic coercion was antithetical to constitutional liberty fueled the non-importation and non-consumption movements. These movements were hugely important. It was becoming clear, warned a Bostonian, that Americans’ “fondness” for imports was “the engine intended to be used to destroy the free constitution of [their] country.”65 T.H. Breen has argued that these organized efforts laid critical groundwork for the coming Revolution by knitting Americans of different social classes and in far-flung settlements together in a community of interest.66 Non-consumption taught Americans that they shared grievances and a common resolve to make open sacrifices in service of a cause. In the critical decade leading up to 1776, Breen explained, American society “defined political resistance” through the “consumer 61 Letter from Robert Carter to Micajah Perry (July 10, 1732), quoted in Claire Priest, Creating an American Property Law: Alienability and its Limits in American History, 120 Harv. L. Rev. 385, 427 (2006). 62 2 Landon Carter, The Diary of Colonel Landon Carter of Sabine Hall, 1752–1778, at 813 (Jack P. Greene ed., 2d ed. 1987). 63 1 Id. at 373. 64 Jefferson was so convinced that indebtedness reduced freedom that he was ready to turn it as a weapon to use on others. As President, Jefferson wrote to the Governor of the Indiana Territory to explain that debt was part of his plan to undermine the independence of the Native nations with title to the land. First, they would persuade the Indians to try farming, and “they will perceive how useless to them are their extensive forests, and will be willing to pare them off from time to time in exchange for necessaries for their farms & families.” Letter from Thomas Jefferson to William Henry Harrison (Feb. 27, 1803), in 39 The Papers of Thomas Jefferson 589, 590–92 (Barbara B. Oberg ed., 2012). Then, “[t]o promote this disposition to exchange lands which they have to spare & we want, for necessaries, which we have to spare & they want, we shall push our trading houses, and be glad to see the good & influential individuals among them run in debt, because we observe that when these debts get beyond what the individuals can pay, they become willing to lop th[em off] by a cession of lands.” Id. at 590. 65 Miles Standish, To Every Freeholder in the Province of the Massachusetts-Bay, and All Other Persons Who Possess Any Kind of Property, Bos. Gazette & Country J., Feb. 19, 1770, at 2. 66 T.H. Breen, The Marketplace of Revolution: How Consumer Politics Shaped American Independence, at xv–xvi (2004). This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 577 market.”67 The boycott was “the distinguishing mark of colonial protest,” its “signature.”68 Americans formed hundreds of organizations to ensure that local merchants complied with non-importation resolutions and signed thousands of petitions agreeing with their neighbors to forego imported goods, urging each other that these agreements would “prove a means of restoring our liberty.”69 Costume was these movements’ dominant mode of expression. Proponents of non-importation used the press to publicly shame neighbors who might “value liberty at so small a price as a ribbon... or a silk neckcloth.”70 “[C]an he be a true lover of his country,” asked another writer, “who would sooner be seen strutting about the streets, clad in foreign fripperies, than to be nobly independent in the russet grey[?]”71 By 1774, one Virginian observed, “People... will go naked rather than have any commerce or connection with Great Brittain.... I never expected to see such a spirit of opposition and resistance.”72 Before long, Indian dress became a signal of the patriot cause. Newspapers carrying the story of the Boston Tea Party made the initial inter-colony connection between the imagery of Indian dress and constitutional protest. The non-consumption movement built on that theme. “Who that has the spirit of a man but would rather forego the... luxuries of life,” one pamphleteer asked, when those luxuries risked “enervating our constitutions and shrinking the human race into pigmies,” when the cost of those luxuries “entail[s] slavery on his unborn posterity to the end of time?”73 He continued, “Nothing but custom makes the curl-pated beau a more agreeable sight with his powder and pomatum, than the tawney savage with his paint and bear’s grease.”74 Another popular pamphleteer declared: “We engage to deprive ourselves of the 67 Id. at 20. 68 Id. 69 Id. at 24, (quoting To the Inhabitants of the Province of South-Carolina, About to Assemble on the 6th of July (July 4, 1774), in 1 American Archives No. 4, at 508, 511 (M. St. Clair Clarke & Peter Force eds., Washington, D.C. 1837)); see also id. at 254. 70 Farmer, To the Printers, Mass. Spy, Nov. 13, 1770. 71 To the Printers of the Providence Gazette, Providence Gazette, Nov. 14, 1767. 72 Letter from William Carr to James Russell (Oct. 23, 1774), Russell Papers, #2, quoted in Emory G. Evans, Planter Indebtedness and the Coming of the Revolution in Virginia, 19 Wm. & Mary Q. 511, 529 (1962). 73 To the Inhabitants of the Province of South-Carolina, supra note 69, at 511. 74 Id. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 578 Virginia Law Review [Vol. 106:559 comforts of life... and to live like savages, if the Parliament will not consent to give up its authority.”75 Figure 1: The Able Doctor, or America Swallowing the Bitter Draught76 In Virginia, frontiersmen’s clothes, incorporating elements of Indian costume, became the uniform of the moment. When Lord Dunmore dissolved the Virginia assembly in 1774, an observer reported that a group of 1,000 men assembled in protest, “among which was 600 good Rifle men.... [E]vry Man Rich and poor with their hunting shirts Belts and 75 Samuel Galloway, What Think Ye of the Congress Now? 36 (New York, J. Rivington 1775). 76 The Able Doctor, or, America Swallowing the Bitter Draught, 43 London Mag. 184 (1774). America, depicted as a partly-draped Indian woman, is restrained by Lord Mansfield while Lord North pours the contents of a teapot into her mouth. America vomits the tea into Lord North’s face. Lord Sandwich, holding American by the ankle, and Lord Bute, holding a sword inscribed with “military law,” both assist in America’s subjugation. Another female figure representing Britannia averts her face and covers her eyes with her hand. Two men representing France and Spain look on with interest. The foreground features a torn document that reads, “Boston petition.” In the background, the miniature spires of a town surrounded by ships is labeled, “Boston cannonaded.” This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 579 Tomahawke fixed of[f] in the best manner.”77 Lord Dunmore would not return to Williamsburg, complained a loyalist, until “these Shirt men” in “Virginia uniform,” that is, men “dressed with an Oznab[urg] Shirt over their Cloaths, a belt round them with a Tommyhawk or Scalping knife,” “are sent away.”78 An article announcing a 1775 patriotic assembly recommended that Virginia burgesses attend in “shirtsmen’s” attire, “which best suits the times, as the cheapest, and the most martial.”79 Many burgesses complied with this instruction, attending the assembly wearing “Coarse linnen or Canvass over their Cloaths and a Tomahawk by their Sides.”80 By wearing these tomahawks to their first councils contemplating independence, Virginia’s elite could signal a range of virtues with one stroke, including a superior grasp of the natural law that, they believed, underpinned the English constitution and any fair government. There was an irony to all of this, the historian Woody Holton has pointed out, as Indians east of the Mississippi “had become highly dependent on European manufactured goods,” and even their “famous hunting shirts and tomahawks were generally made in Europe.”81 One wonders how many of the shirts the “shirt men” wore actually complied with the boycott of European articles. It hardly mattered. What was important about the costume was the signal it sent to other Americans about solidarity in a cause and commitment to a set of shared values. And, of course, British North Americans were not dressing up as actual Indians but idealized ones. Rhetorically, the non-importation and non-consumption movements were as much about moral purification as economics—the belief that popular virtue would prove critical if Americans hoped to restore their constitution to its first principles.82 Revolutionaries explained that it was 77 Rhys Isaac, Dramatizing the Ideology of Revolution: Popular Mobilization in Virginia, 1774 to 1776, 33 Wm. & Mary Q. 357, 380 (1976) (quoting Letter from Michael Brown Wallace to Gustavus Brown Wallace (May 14, 1775), in Wallace Family Papers, 1750–1781 (on file with the Alderman Library, University of Virginia)). 78 Id. at 381 (quoting Letter from James Parker to Charles Steuart (Jun. 12, 1775), in Letters from Virginia, 3 Mag. Hist. 151, 159 (1906)). 79 Id. at 381–82 (quoting An American, Va. Gazette, May 19, 1775). 80 Id. at 382 (quoting Letter from Lord Dunmore to Earl of Dartmouth (June 25, 1775) (on file with Dunmore Correspondence, Special Collections, John D. Rockefeller Jr. Library, Williamsburg, Va.)). 81 Woody Holton, Forced Founders: Indians, Debtors, Slaves, and the Making of the American Revolution in Virginia 104 n.58 (1999). 82 Wood, supra note 28, at 34. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 580 Virginia Law Review [Vol. 106:559 the “vigour of natural Principles” that “drew them to resist the unnatural violence of Provincial Government.”83 Enlightenment thinkers like John Locke gave these words meaning, and native life (or their idea of it) had long provided their standard for the ideal “natural” society.84 In indigenous society, St. John Crèvecœur opined, “[t]here must be something more congenial to our native dispositions, than the fictitious society in which we live.”85 Rousseau spoke of the “savages of America” as “those happy nations who did not even know the name of many vices which we find it difficult to suppress.”86 The enlightenment caricature of the noble savage was a fitting avatar for Americans’ grievances against economic subjugation. Whereas credit and debt are time-bound, receiving now and remitting later, the imagined Indian lived a life free from time. The Indian’s “soul, which nothing disturbs, is wholly wrapped up in the feeling of its present existence, without any idea of the future, however near at hand; while his projects, as limited as his views, hardly extend to the close of day.”87 The fantasy also provided a foil for European materialism.88 To keep himself supplied with luxuries, a man would “danc[e] the vilest pantomime,” Diderot said, echoing the sentiments of the non-importation movement.89 “Whom does the savage beg from? The earth, the animals and fishes, the trees and plants and roots and streams.”90 Rousseau added that the desire for unnecessary “things” created political dependence. By contrast, “[t]he American savages, who go naked, and live entirely on the products of the 83 T. Pownall, A Memorial Addressed to the Sovereigns of America 23 (London, J. Debrett 1783). 84 John Locke, Second Treatise of Government (1689) 3–10 (Richard H. Cox ed., 1982). See Bernard Bailyn, The Ideological Origins of the American Revolution 27 (1967) (noting that the influence of “the European Enlightenment on eighteenth-century Americans... remains, and is profusely illustrated in the political literature” and that “[t]he ideas and writings of the leading secular thinkers of the European Enlightenment... were quoted everywhere in the colonies, by everyone who claimed a broad awareness”). 85 J. Hector St. John Crèvecœur, Letters from an American Farmer 306 (1904). 86 Jean Jacques Rousseau, The Social Contract and Discourses 153 n.1 (G.D.H. Cole trans., 1950). 87 Id. at 211. 88 Denis Diderot, Rameau’s Nephew and Other Works xii, 186 (Jacques Barzun & Ralph H. Bowen trans., 2001). Diderot wrote this book during the 1770s, but it was only published after his death, in 1805. See Jack Undack, Diderot at the Crossroads of Speech, in A New History of French Literature 517, 519 (Denis Hollier ed., 1989). 89 Diderot, supra note 88, at 84–85. 90 Id. at 84. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 581 chase, have been always impossible to subdue. What yoke, indeed, can be imposed on men who stand in need of nothing?”91 Indian costume also amounted to an assertion that colonial Americans were native here, and that they held a superior claim to the soil than their governors in London. But of course, many of the men dressing up in Indian costume had encountered actual native Americans and had grown to adulthood during a generation of violent war with Indian nations along the frontier. Some of them would participate, during the “closing years of the Revolution,” in “extraordinary anti-Indian violence.”92 Americans were dressing up as Indians even as, historian Peter Silver has demonstrated, a “horror and fear” of Indian attacks “became a vital means of forming public coalitions,” knitting the various European groups of colonial society into a “new group” of interest: “the white people.”93 Silver argues that this new way of thinking of whites as a cohesive, aggrieved community contributed to “a democratic revolution,” because part of the patriot’s case against the British was that they “car[ed] too much for Indians” and that they were “indifferent to or even complicit in ordinary country people’s sufferings at Indian hands.”94 A central aspect of their complaint was, in the language of the Declaration of Independence, that the King had “endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.”95 But the anti-Indian aspect of the Revolutionary cause was not in tension with the choice of Indian dress as the patriot’s costume. Rather, it added to the costume’s power. There was what the French theorist René Girard would call a “mimetic rivalry” inherent in the performance of Indian dress, amounting to a violent rejection of the claims of true natives.96 The message of the costume to actual Native Americans who saw it would 91 Rousseau, supra note 86, at 14 n.1. 92 Peter Silver, Our Savage Neighbors: How Indian War Transformed Early America, at xxiii (2008). 93 Id. at xviii–xx. 94 Id. at xviii, xxiii. 95 The Declaration of Independence para. 29 (U.S. 1776). 96 René Girard, Mimesis and Violence: Perspectives in Cultural Criticism, 14 Berkshire R. 9, 9 (1979) (“If the appropriative gesture of an individual named A is rooted in the imitation of an individual named B, it means that A and B must reach together for one and the same object.... Violence is generated by this process....”). Here, the “objects” are sovereignty over American soil, along with the claim to belonging or native status here, and authenticity as “Americans,” rather than Britons. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 582 Virginia Law Review [Vol. 106:559 have been something like, “we will kill you and then dance around in your skin.” More menace, in other words, than praise. Michael Cresap, a frontiersman once reviled as barbaric for his role in a massacre of Indian women and children, would become a celebrated hero in the lead-up to Independence while wearing Indian clothing.97 In 1775, Cresap paraded through the Northern colonies with “a formidable Company,” all “painted like Indians, armed with Tomahawk’s and Rifles, dressed in hunting Shirts and Mackasons.”98 His men could surely overawe Lord North’s formal army, urged one newspaper account, because of their Indian-like qualities. “What would a regular army... in the Forest of America do with 1,000 of these Men,”99 it asked, [W]ho want nothing to preserve their Health and Courage, but Water from the Spring, with a little parched Corn, and what they can easily procure in Hunting; and who, wrapped in their Blankets in the Damp of Night, would choose the shade of a Tree for their Covering, and the Earth for their Bed?100 The former pariah became a champion of the cause as newspapers marked his progress through Pennsylvania and New York on his way to the front lines. There is more to say about the white Indian as an expression of race and of racism, and to do those issues justice is beyond the scope of this Article. But I’ll note just one point here: patriots’ performance of Indian dress, which often including darkening their skin, likely contributed to the cultural transformations that preceded and help to explain the political Revolution. Again, Peter Silver has shown how, during the lead-up to the American Revolution, a very culturally diverse set of European peoples began to think of themselves as one aggrieved “white” people.101 The invention of this new identity was hard work and it required imagination. Indians were no monolith, but there was a simplistic caricature of the Indian that denied their real differences, with which European-Americans were familiar. With Indian dress, patriots borrowed a monolithic racial identity from this caricature. Likewise, enslaved African Americans were 97 See Robert G. Parkinson, From Indian Killer to Worthy Citizen: The Revolutionary Transformation of Michael Cresap, 63 Wm. & Mary Q. 97, 97 (2006). 98 Extract of a Letter from Frederick-Town, August 1, N.Y. Gazette & Wkly. Mercury, Aug. 21, 1775, at 2. 99 Id. 100 Id. 101 Silver, supra note 92, at xxii–xxiii. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 583 no cultural monolith, but European-Americans also had a singular caricature in mind when speaking of them. American patriots constantly warned each other that submission to Britain would make them “in no respect different from the sooty Africans, whose persons and properties are subject to the disposal of their tyrannical masters,” as Joseph Galloway put it.102 Or, in George Washington’s words, submission would “make us as tame, & abject Slaves, as the Blacks we Rule over with such arbitrary Sway.”103 In defining themselves both as comparators to an imagined monolith (the Indians) and against an imagined monolith (black slaves), the Revolutionaries achieved a new monolithic self-identity as “whites.” 102 F. Nwabueze Okoye, Chattel Slavery as the Nightmare of the American Revolutionaries, 37 Wm. & Mary Q. 3, 12 (1980) (quoting Joseph Galloway, A Letter to the People of Pennsylvania 38–39 (1760)). 103 François Furstenberg, Beyond Freedom and Slavery: Autonomy, Virtue, and Resistance in Early American Political Discourse, 89 J. Am. Hist. 1295, 1301 (2003) (quoting Letter from George Washington to Bryan Fairfax (Aug. 24, 1774), in 10 The Papers of George Washington: Colonial Series (W.W. Abbot & Dorothy Twohig eds., 1995)). This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 584 Virginia Law Review [Vol. 106:559 Figure 2: Tea Destroyed by Indians104 Indeed, the power of Indian dress lay in its ability to express, all at once, high ideals about natural rights, a superior colonial claim to the soil, 104 Author unknown, Song, Tea Destroyed by Indians (1773) (on file with the Library of Congress Prints and Photographs Division, Broadside collection), https://perma.cc/ULT3- 9ZE9. The title and first stanza of this song commemorating the Boston Tea Party illustrates the type of racial positioning that preceded the Revolution and helped to construct a new American identity. The heroes destroying tea are like “Indians,” and not “Moors.” This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 585 the violent fantasies of the white subaltern, ritual purification from European luxuries, and the colonies’ pressing economic grievances, including their rejection of unfair debt. It is no wonder Americans recurred to this symbol so often during their movement for independence. And it is no surprise that such a useful symbol endured. Seventy years after Independence, Indian costume would remain a powerful element of American “countertheatre.” III. THREE GENERATIONS OF DEBTOR CONSTITUTIONALISM The Whig legal philosophy that acknowledged the constitutional role of the people out-of-doors was at its height during the revolt that founded the nation.105 A mob assembling to protest a constitutional injury had the same claim to legitimacy, after all, as that of patriots of all social classes who dared take up arms against their King. After peace with Britain, many Americans continued to believe that they had created a society in which the people out-of-doors had a legitimate place in constitutional governance. They may not have had their own article in the Federal Constitution—they may, in fact, have been relegated to mentions in the subsequent Bill of Rights—but that did not spell the end of what Alexander Hamilton would call “tumultuary assemblies of the collective body of the people.”106 That is because not everyone understood or agreed that the advent of written constitutions meant the death of the unwritten one. To repeat John Adams’ formulation, the unwritten constitution was “a frame, a scheme, a system, a combination of powers,” with “the preservation of Liberty” as its “End.”107 But if this was so, Americans faced a dilemma: after all the Revolutionary rhetoric portraying their cause as anti-materialistic, pro-debtor, and connected to a fairness-based “natural law,” they no longer agreed on what “liberty” entailed. The economic justifications for the war had always posed obvious risks to those who had enjoyed privileged positions in colonial society. In 1776, a loyalist responding to Paine’s Common Sense had warned that separation from Britain would cause such market turmoil that “[a] war 105 See Reid, supra note 30, at 1044. 106 Alexander Hamilton, The Continentalist No. 1, N.Y. Packet & Am. Advertiser, July 12, 1781, reprinted in 2 The Papers of Alexander Hamilton 649, 651 (Harold C. Syrett ed., 1961). 107 1 Diary and Autobiography of John Adams 297–98 (L.H. Butterfield ed., 1961). This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 586 Virginia Law Review [Vol. 106:559 will ensue between the creditors and their debtors.”108 Although this warning may have been overblown, the patriots’ emphasis on economic justice did affect some Americans’ subsequent views on the content of the unwritten constitution they had bled to defend. For those who took the pro-debtor aspect seriously, economic conditions after the Revolution left a lot to be desired, and amply justified continued armed protest. Legislatures discarded the economic fairness agenda just as Americans were hit with a post-war economic slump. Unprecedented taxes and a scarcity of currency had figured high among the colonial complaints against Britain. But by one historian’s calculation, when Pennsylvanians complained about money scarcity on the eve of Revolution, there had been about $5.30 per person of government paper in circulation. This figure declined to $1.90 in 1786 and was down to 30¢ by 1790.109 Furthermore, continental soldiers had accepted pay in the form of government bonds—essentially, promissory notes. When they returned home, soldiers who needed currency to pay their debts and buy food for their families began selling their bonds for whatever money they could get, always at prices far below their face value. Wealthier Americans bought up the bonds at discounted prices and then influenced the legislatures to levy taxes sufficient to redeem them at their full printed value.110 Many Americans faced taxes averaging three or four times those of the colonial era.111 To make matters worse, the courts reopened after the war, exposing debtors to the claims of foreign and domestic private creditors. Some saw this redistribution of wealth from the taxed and indebted masses to the wealthy few as a good outcome. As one commentator put it, it was important to enforce judgements against delinquent debtors in order to “put the property into the hands of those who would manage it better.”112 Robert Morris urged that the high taxes necessary to redeem the war bonds from speculators would benefit the country, by 108 James Chalmers, Plain Truth: Addressed to the Inhabitants of America 36 (Philadelphia, 1776). 109 Terry Bouton, Taming Democracy: “The People,” the Founders, and the Troubled Ending of the American Revolution 91 (2007). 110 Woody Holton, “From the Labours of Others”: The War Bonds Controversy and the Origins of the Constitution in New England, 61 Wm. & Mary Q. 271, 277 (2004). 111 Woody Holton, Did Democracy Cause the Recession That Led to the Constitution?, 92 J. Am. Hist. 442, 445–47 (2005). 112 Amicus, Richmond Va. Indep. Chron., July 4, 1787, quoted in Holton, supra note 111, at 455. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 587 “distributing property into those hands which could render it most productive.”113 Others questioned this logic. According to George Mason, it was not uncommon to hear Virginians complaining: “If we are now to pay the Debts due to British Merchants, what have we been fighting for all this while?”114 The scarcity of money meant freeholders had to give up their land, the most salient and tangible sign of true independence, to satisfy their debts. One contemporary reported having seen debtors “give up £50” worth of property “to pay £10.... Who will call this Justice?”115 A Pennsylvania pamphleteer argued that these choices made little sense as a practical matter. To “lay the Burden on, and distress the Labourer,” would only “lessen our Stock of Property, and destroy that Fountain out of which it rises, and make good the Proverb, of killing the Hen that laid a golden Egg every Day.”116 He urged that a policy enforcing creditors’ claims against this “labouring Part,” to the extent of auctioning off “their Implements of Labour, their Horses, Oxen, &c.,” amounted to a decision “to stab ourselves to the very Heart.”117 Legislatures exacerbated the economic hardships ordinary Americans faced, leaving many feeling betrayed. For many, the pro-debtor rhetoric of the Revolution had been about more than strategic pressure on a trading partner. Instead, it heralded a leveling of class distinctions and the radical promise of economic equality. It had meant, at the very least, that compassion for one’s fellow man must take precedence over timely remission of debts. After all, credit was an inescapable part of the economic cycle, and an inability to satisfy one’s obligations was often the result of a bad storm or a harvest-eating pest rather than profligacy. Everyone borrowed, and, in hard times, everyone defaulted. It was not naïve to have expected a legal reorientation in favor of debtors after the Revolution. In other areas of the law, the historian Holly Brewer has argued, this period saw a meaningful shift in how Americans thought about culpability and assigned punishment. Before the Revolution, she shows, “[t]he question was less whether one meant to do 113 Letter of Robert Morris (July 29, 1782), in 22 Journals of the Continental Congress 1774– 1789, at 429, 436 (Gaillard Hunt ed., 1914). 114 Letter from George Mason to Patrick Henry (May 6, 1783), in 2 The Papers of George Mason 1725–1792, at 769, 771 (Robert A. Rutland ed., 1970). 115 Holton, supra note 111, at 446 (quoting Americanus, Letters to Messrs. Bowen and Markland, Columbian Herald, Sept. 28, 1785, at 2). 116 Proposals to Amend and Perfect the Policy of the Government of the United States of America 21 (Philadelphia, 1782). 117 Id. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 588 Virginia Law Review [Vol. 106:559 something than whether one actually had done it,” reflecting a sixteenth- century framework in which “guilt depended only partly on intention but more on direct causation and on status.”118 In the decades after the Revolution, “[p]roof of criminal intent... was the general requirement,” including in “crimes against property or involving business dealings.”119 But as other areas of law changed, imprisonment of the honest debtor, often to the utter ruination of his health and the destruction of his family, remained the norm. The failure of the economically radical promises of the Revolutionary movement inspired many mob actions over the following decades. Shay’s Rebellion, the 1786 armed insurrection in Massachusetts, is only the most well-known of many conflagrations. In June of the same year, debtors also protested violently in Maryland, where “a tumultuary assemblage of the people” organized an assault and succeeded in closing the Charles County courthouse.120 In September 1786, in Litchfield, Connecticut, “about 1500[] assembled in battle array, with an avowed design of preventing the sitting of the court of common pleas.”121 The Litchfield “rioters broke the gaols, and released such prisoners as were confined for debt.”122 Likewise, in May 1785, in Camden County, South Carolina, “[t]he sheriff & his officers were threatened in the execution of their duty; and at length the people... grew outrageous.”123 A witness reported that when the sheriff dared to serve a writ on “one Col. Mayham,” the veteran “obliged [the sheriff] to eat it on the spot.”124 Similar protests occurred in New Jersey, where debtors nailed up the doors of the courthouse, “impaled an effigy of [the] Governor,” forcibly stopped foreclosure sales, and refused to pay taxes.125 These conflicts represented a clash between those who expected continuity with the radical constitutional values of the Revolutionary era, along with that era’s mode of discerning and defending the Constitution, 118 Holly Brewer, By Birth or Consent: Children, Law, & the Anglo-American Revolution in Authority 226 (2005). 119 James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States 18 (1956). 120 David P. Szatmary, Shays’ Rebellion: The Making of an Agrarian Insurrection 124 (1980). 121 Litchfield, September 19, Md. J. & Balt. Advertiser, Oct. 10, 1786, at 2. 122 Id. 123 Diary of Timothy Ford, 1785–1786 (Joseph W. Barnwell ed.), in 13 S.C. Hist. & Genealogical Mag. 181, 193 (1912). 124 Id. 125 Szatmary, supra note 120, at 125. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 589 and those who believed that the time for all that had passed. Some, even more conservative local leaders such as future Treasury Secretary Albert Gallatin, agreed that armed resistance might at some point become necessary. He counseled caution and compliance with the law simply because he did not think that the imposition of taxes alone was a sufficient threat to liberty to justify armed resistance yet.126 To men like George Washington, on the other hand, the rebels were a “treason[ous] opposition... propogating principles of anarchy... [and] acts of insurrection.”127 In the proclamation Washington issued as he marched out at the head of a 13,000-man army to subdue the Pennsylvania whiskey rebels, he explained that the Revolution had eliminated any moral justification for armed insurrection.128 If the rallying cry had once been “no taxation without representation,” then the right to elect representatives had succeeded the right to take up arms. Even Samuel Adams, a great supporter of the mob in pre-Revolutionary Massachusetts, called for the leaders of Shay’s Rebellion to be hanged, explaining that “[i]n monarchies the crime of treason and rebellion may admit of being pardoned or lightly punished, but the man who dares rebel against the laws of a republic ought to suffer death.”129 It is tempting to see Washington and Adams’ as the winning argument simply because it is familiar. But as a practical matter, it is not clear that the vote resolved any of the issues rebels throughout the new states were complaining about. Many justly complained that voting was not worth much. The western Pennsylvanians could vote, but they found themselves effectively shut out of Pennsylvania politics since “eastern speculators in western lands... packed more clout in the assembly than frontiersmen.”130 Pennsylvania was not the only state in which indifference to the unique grievances of frontiersmen led to interregional battles between the well-settled capitol and shoreline regions and more sparsely-settled frontiers.131 And in other states, rebels may not have met 126 See Declaration of the Committees of Fayette County, September 1794, in 1 The Writings of Albert Gallatin 4, 6–7 (Henry Adams ed., Philadelphia, J.B. Lippincott & Co. 1879). 127 Proclamation of Sept. 25, 1794, 3 Annals of Cong. 1413, 1414 (1849). 128 Id. at 1415. 129 William Pencak, Introduction: A Historical Perspective, in Riot and Revelry in Early America, supra note 41, at 4. 130 Thomas P. Slaughter, The Whiskey Rebellion: Frontier Epilogue to the American Rev- olution 37 (1986). 131 Id. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 590 Virginia Law Review [Vol. 106:559 the property qualifications to vote. Indeed, in North Carolina, the angry frontiersmen were not represented in their state legislature at all.132 In the convention that would ultimately found the short-lived independent state of Franklin on North Carolina’s western border, “[o]ne man rose, took from his pocket a copy of the Declaration of Independence, and angrily recounted the unfulfilled promises of the drafters. He then described parallels between the principles and grievances of the Declaration and those of frontiersmen.”133 In the context of this argument over the Revolution’s legacy, Indian costume took on new significance. Imbued with the rich associations it had gathered during the war, Indian dress now announced the wearers as the true defenders of the “Spirit of ’76.” It stood for the idea that, so long as economic abuses continued, so long as a distant government continued to exact oppressive taxes, the work of the Revolution was not finished. And it recurred again and again. In October 1791, a mob scared off an Albany sheriff’s lieutenant when he tried to auction a local debtor’s possessions. The sheriff and his brother rode to the site of the auction the next day to support the lieutenant, but the lieutenant never appeared with the writ of execution and the auction could not take place. An ambush prevented them from leaving town. As they rode away, the insolvent debtor “fired a pistol, at which signal seventeen men, painted and in Indian dress, sallied forth from the barn, fired and marched after them.”134 The unlucky sheriff did not survive the encounter.135 During the Whisky Rebellion of 1794, an eyewitness described “[l]iberty poles... raised every where,” bearing messages like “an equal tax, and no excise,” and “devices, such as a snake divided, with this motto, ‘united we stand, divided we fall.’”136 “[T]he people acted and spoke” said the witness, “as if we were in a state of revolution.”137 Of course, the whiskey rebels also took their Indian costumes out of chests and shook out the creases. An eyewitness described how protestors “were dressed in what we call hunting shirts,” and that some of them “painted themselves black, as the warriors amongst the Indians do, when they go to war.”138 132 Id. 133 Id. 134 American Intelligence: Albany, October 31, 1791, Western Star, Nov. 8, 1791, at 3. 135 Id. 136 Hugh H. Brackenridge, Incidents of the Insurrection in the Western Parts of Pennsylvania, in the Year 1794, at 76 (Philadelphia, John McCulloch 1795). 137 Id. 138 Id. at 52, 54. This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Constitutionalism in Unexpected Places 591 With familiar bombast, the rebels bragged to the Pennsylvanian authorities that “[i]t is a common thing for Indians to fight your best armies at the proportion of one to five; therefore we would not hesitate a moment to attack this army at the rate of one to ten &c.”139 These men urged the cause of the hounded debtor, the squatter asserting a superior claim to the soil than the titular owner, and the beleaguered victims of what they saw as an exorbitant tax. Like the western patriots of the Revolution, “[t]o them, the link between Indian depredations and federal taxes seemed obvious.”140 As “whites” who “lived in fear” because of their direct conflict with Indian nations along the frontier, they believed they were owed “an exemption from additional burdens.”141 The connection between these claims and the constitutional grievances that had justified the American Revolution could not be clearer. If elites rejected these claims, they could not deny their force. After a series of violent protests in the 1800s, the Massachusetts legislature, home of the Boston Tea Party, passed a statute “making it a high crime for any person to disguise himself in the likeness of an Indian, or otherwise, with intent to molest a sheriff or surveyor in the discharge of his duties.”142 In a stark recognition of the symbol’s power, the law included harsh penalties for militiamen who refused to help officials enforce it.143 A larger pattern of official clemency and diplomatic engagement with protestors also suggests that elites understood that written law was not hegemonic, but instead competed and interacted with this unwritten understanding of fundamental law. In the 1790s, some of the Indian- costumed rebels were tried and sentenced to death for treason. But President Washington issued a pardon for the convicted traitors of the Whiskey Rebellion and Adams issued a general amnesty for anyone who might have been involved in the subsequent Fries Rebellion.144 Likewise, the leader of the Indian-costumed Anti-Rent rioters of the 139 William Findley, History of the Insurrection, in the Four Western Counties of Pennsylvania 163 (Philadelphia, Samuel Harrison Smith 1796). 140 Slaughter, supra note 130, at 93. 141 Id. 142 George J. Varney, The Malta War in Court, 7 Green Bag 476, 478 (1895). 143 See An Act for the More Speedy and Effectual Suppression of Tumults and Insurrections in the Commonwealth, ch. 122, § 4, 1810 Mass. Acts 218, 220–21. 144 See John Adams, Proclamation, Granting Pardon to the Pennsylvania Insurgents (May 21, 1800), in 9 The Works of John Adams, Second President of the United States 178 (Charles Francis Adams ed., Boston, Little, Brown & Co. 1854). This content downloaded from 132.174.249.34 on Tue, 04 Feb 2025 16:51:52 UTC All use subject to https://about.jstor.org/terms COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 592 Virginia Law Review [Vol. 106:559

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