Perfecting the Union: National and State Authority in the U.S. Constitution by Max M. Edling

Abstract

Reviewed by: Perfecting the Union: National and State Authority in the U.S. Constitution by Max M. Edling Craig Green Perfecting the Union: National and State Authority in the U.S. Constitution. By Max M. Edling. New York: Oxford University Press, 2021. 206 pages. Cloth, ebook. Having already written two outstanding books about the early American republic, Max M. Edling revisits this period in Perfecting the Union: National and State Authority in the U.S. Constitution, which examines American states and federalism.1 The book promotes what Edling calls a "Unionist interpretation" (15) of the Constitution, claiming that sharp limits on interstate government meant the Constitution was more important for creating union and statehood than for producing democracy, individual liberty, or market economics. Edling's thesis challenges widespread assumptions that the American Revolution and the Constitution directly transformed social, economic, and civic life, demanding instead that scholars should focus on state-law authorities "that actually regulated civic rights" (15).2 Perfecting the Union uses three categories of evidence—international law, American history, and European philosophy—to define the federal government's constraints and the American states' autonomy. Mirroring the book's organizational structure, this review considers those categories in sequence. Edling's first category of evidence to identify original limits on the federal government (chapter 1) comes from international law, but the full scope of his argument is not clear. For example, Edling's Unionist theory claims that national solidarity was an enduring problem for the United States, comparing America to loose-knit confederacies under the European law of nations. But how prescriptive were international analogies for the creation of American statehood and union? Edling cites David C. Hendrickson, who described the Constitution as a peace pact among independent sovereigns, and other scholars have likewise suggested that the Articles of Confederation were a treaty among American states as autonomous international entities.3 Some of those authors have argued not only that the United [End Page 403] States was influenced by international law but also that the United States and the American states were formal creatures of international law. The assumption that American states such as Georgia and Pennsylvania were comparable to international sovereigns such as Spain or France is hard to defend, but perhaps Edling can avoid such exaggerations insofar as he combines international law with other legal sources.4 For example, Edling cites British colonialism as an example of his Unionist thesis, yet prerevolutionary colonists disputed the power of Parliament and the crown exclusively based on British law, not the law of nations.5 When Edling labels prerevolutionary British history as "Unionist," that implicitly suggests at least a possibility that postrevolutionary relationships among states and the United States also were not derived solely from international law. Edling demonstrates that international law was one reference point for the early American republic—alongside British colonial law, Native governance, and colonists' own innovations—but it was not uniquely authoritative for the development of constitutional federalism and American states. Edling's reliance on international law seems more troublesome in his argument that "the federal government was never created to regulate domestic affairs" (14) as opposed to "international affairs" (12). Edling's words "international" and "domestic" are not how most people distinguish the constitutional authority of the federal government and the American states. The conventional adjectives are interstate and intrastate. Congress has always had constitutional power over policies that are "domestic" rather than "international," including interstate commerce, bankruptcy, taxing and spending, intellectual property, counterfeiting, the post office, and more. Each of those powers has had broad practical effects over time, including the production of "a stronger federal union … to stand up to European powers and to conquer the North American continent" (8), but such geopolitical implications do not mean that the federal powers were themselves international.6 The law of nations' distinction between "international" and [End Page 404] "domestic" affairs did not solve the constitutional problems of defining federal power and constitutional statehood.7 In chapter 2, Edling's second effort to specify the federal government's limitations highlights continuities between the Articles of Confederation and the Constitution. For example, under both regimes, the United States tried to limit threats from European...