Magna Carta for the World? The Constitutional Protection of Foreign Subjects in the Age of Revolutions

Friday, January 2, 2015: 3:50 PM
Gramercy Suite B (New York Hilton)
Daniel Hulsebosch, New York University
In his Commentaries on the Laws of England (1765), Blackstone remarked that the guarantee of safe conduct for “merchant strangers,” or aliens, in chapter 30 of Magna Carta was “extraordinary” because it appeared not in an international treaty but instead in “a mere interior treaty between the king and his natural-born subjects.” After centuries of uncertain application, that chapter received new attention in the Enlightenment, especially (as Blackstone proudly noted) after Montesquieu celebrated the English and their constitution for making “the protection of foreign merchants one of the articles of their national liberty.” The sociability of the English constitution was yet additional proof of its uniqueness. Part of a larger project on the international dimensions of the constitution-making in the Age of Revolution, this paper will explore the protection that American and other post-revolutionary constitution-makers gave foreign subjects, citizens, and commerce. The argument will connect the American interest in foreign commerce to both Enlightenment ideas and political experience: on the one hand, to notions of sociability and commerce as the means of civilization; and on the other to the search for international trade and investment that would replace the lost infrastructure of empire. It will then analyze the innovative structures in the federal Constitution that were designed to promote foreign subjects and build what might be called a commercial-fiscal, rather than a military-fiscal, state. Finally it will compare and contrast similar features in post-revolutionary constitutions in France, Haiti and Latin America. The larger aim is to gain insight on the historical tension in constitution-making between the quest for sovereign independence and the need, or desire, for international relations.