Tuesday, June 6, 2017

MDH on when America became the United States of America

Friend of the blog Mark David Hall of George Fox University weighs in. What annoys me most When Historians Attack is when they exceed the limits of their expertise. In this case, Harvard's Dr. Joyce Chaplin, a history instructor, presumed to lecture Harvard Law grad Sen. Ted Cruz--who as Texas Solicitor General argued [and won] in front of the Supreme Court--on the law.

Dr. Hall's credentials are in Political Science, and as such, straddles the two fields and clarifies:


Lex Lata said...
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Lex Lata said...

Hall's statement aligns with the discussion on statehood and sovereignty in sections 21 and 20 of Henry Wheaton's Elements of International Law (3d ed., 1866).

For a working definition of "State," we get "a body political, or society of men, united together for the purpose of promoting their mutual safety and advantage by their combined strength." International recognition is not a requirement there.

Elements goes on to describe the role of recognition in an exploration of the distinction between internal and external sovereignty. Helpfully, the creation of the United States serves as the example.

* * *

Sovereignty is acquired by a State, either at the origin of the civil society of which it is composed, or when it separates itself from the community of which it previously formed a part, and on which it was dependent.

This principle applies as well to internal as to external sovereignty. But an important distinction is to be noticed, in this respect, between these two species of sovereignty. The internal sovereignty of a State does not, in any degree, depend upon its recognition by other States. A new State, springing into existence, does not require the recognition of other States to confirm its internal sovereignty. The existence of the State de facto is sufficient, in this respect, to establish its sovereignty de jure. It is a State because it exists.

Thus the internal sovereignty of the United States of America was complete from the time they declared themselves "free, sovereign, and independent States," on the 4th of July, 1776. It was upon this principle that the Supreme Court determined, in 1808, that the several States composing the Union, so far as regards their municipal regulations, became entitled, from the time when they declared themselves independent, to all the rights and powers of sovereign States, and that they did not derive them from concessions made by the British king. The treaty of peace of 1782 [sic] contained a recognition of their independence, not a grant of it. From hence it resulted, that the laws of the several State governments were, from the date of the declaration of independence, the laws of sovereign States, and as such were obligatory upon the people of such State from the time they were enacted. It was added, however, that the court did not mean to intimate the opinion, that even the law of any State of the Union, whose constitution of government had been recognized prior to the 4th of July, 1776, and which law had been enacted prior to that period, would not have been equally obligatory.

The external sovereignty of any State, on the other hand, may require recognition by other States in order to render it perfect and complete. So long, indeed, as the new State confines its action to its own citizens, and to the limits of its own territory, it may well dispense with such recognition. But if it desires to enter into that great society of nations, all the members of which recognize rights to which they are mutually entitled, and duties which they may be called upon reciprocally to fulfil, such recognition becomes essentially necessary to the complete participation of the new State in all the advantages of this society. Every other State is at liberty to grant, or refuse, this recognition, subject to the consequences of its own conduct in this respect; and until such recognition becomes universal on the part of the other States, the new State becomes entitled to the exercise of its external sovereignty as to those States only by whom that sovereignty has been recognized.

[Internal citations omitted.]

* * *

A bit longer than a tweet, I'm afraid. :)

Art Deco said...

I think Chaplin's problem is that she's trading in fictions to attempt to score a political point. Her answer to Cruz was a rhetorical parry. She likely doesn't believe it herself.

Neither American society nor American institutions were an artifact of 'the international community' or any specific collection of states. A deficit of 'international recognition' complicates the execution of your diplomatic initiatives and can complicate the conduct of foreign trade. It does not expunge actually existing social forms or formal institutions. (And British North America in 1781 could likely get on a good deal better without 'international recognition' than could Rhodesia in 1965).

The closest thing to countries 'created by the international community' would be those derived from the old League of Nations Mandates (along with the UN Trusts). The institutional forms were imposed not by 'the international community but (with a few exceptions) by Britain, France, the United States, and Australia, respectively. One of the exceptions is Israel. Trouble is, Israel is quite clearly the work of the World Zionist Organization, the Jewish Agency, and the Haganah. 'Recognition' did not create the state. It was crucial to preventing the Arab states from strangling it.