3.2. American Revolutionary Popular Will in Context
3.2.1. From ‘American Exceptionalism’ to ‘Settler Empire’
While the global impact of the American assertion of popular will via its July 4th, 1776 Declaration of Independence, is well documented,1 its influence has yet to be comprehensively addressed within international legal scholarship despite the field’s
‘turn to history.’ A possible reason for this relative absence is the contested status of declarations of independences within contemporary international law.2 Yet, when accounting for the international legal impact of the American Revolution, beyond the ease of entanglement with intractable doctrinal questions of statehood, recognition, and self-determination attached to ‘declarations of independence’, a larger historiographic barrier is present. This barrier is constructed through the way a mythic narrative of the Peace of Westphalia is compounded by another myth, American Exceptionalism.
While subject to numerous interpretations, the core of ‘American Exceptionalism’, at least in relation to international law, is that the US’s unique character, destiny,
1 For the leading study of the global impact of the Declaration of Independence, see Armitage 2007.
2 Here the strong presumption in favor of upholding territorial integrity renders attempts to declare independence far from sufficient for attaining international legal standing. For confrontations of this issue, see e.g. Vidmar 2012b; Anderson 2015; Kassoti 2016.
and mission of exporting ‘freedom’ globally translates into a differentiated relation-ship with the rules of the Westphalian international order.3 From this basis, argu-ments emerge that there is a distinctly ‘American approach to international law’
whereby the US Constitution, i.e. the ‘supreme law of the land’, triumphs over any conflicting international legal interpretation.4 Such a view has been invoked as jus-tifications for American international legal breaches whereby Constitutional su-premacy is coupled with assertions of US power as an indispensable enforcer of global order and any legal constraint perceived to empower America’s enemies is illegitimate.5 However, these breaches, particularly as they relate to the use of force and the law of armed conflict, have also be contested within the same confines of American Exceptionalism by those invoking longstanding traditions of US interna-tional legal commitments that portray recent departures (especially during the Cold War and later the post-9/11 ‘War on Terror’) as tragic betrayals.6 There is a great deal of history such a challenger can draw upon given that, in the words of Mark Janis, ‘[p]robably the most exceptional aspect of American international law is the belief long held by many Americans that the discipline embraces a utopian mission to substitute law and the courtroom for war and the battlefield.’7 Moreover, this legalist antiwar tradition is accompanied by numerous, and frequently overlapping, assertions of anti-imperialism as a deeply American value.8
Through its many variations, American Exceptionalism acts as a quintessential case study in ‘juridical thinking’ in that it lodges its central argument through a highly
3 On the self-perception of the US as being a ‘civilisational’ tier above the Westphalian ‘family of nations’, see Cha 2015, 759.
4 For such an account of ‘American international law’, see Cohen 2003.
5 See e.g. Rabkin 2004.
6 Witt 2012, 897-898.
7 Janis 2012, 533.
8 On the manifestations of ‘anti-imperial’ discourse within the history of American foreign policy, see Cha 2017.
discretionary assemblage of historical events in the name of constructing a compel-ling narrative. While ‘juridical thinking’ is an indispensable connector of otherwise disparate strands of meaning, as this thesis argues, it is limited in that it abstracts historical events from their material contexts while nonetheless generating material effects that it cannot explain outside the confines of its narrow projects of political justification. This is especially problematic when American Exceptionalist narra-tives make sweeping historical claims about international law while failing to acknowledge how their political myopias expose them to critique through a contex-tual expansion of the histories they purport to ‘neutrally’ describe.9 Thus, in line with this thesis’s methodology, the limits of this approach are tempered with the insights of historical sociology as means of materially situating the origins, appeals, receptions, and adaptations of the narratives constructed through the distinct tech-nique of ‘juridical thinking.’
Against this presumption, when facing the distorting rubric of ‘American Excep-tionalism’ (regardless of the political purpose it serves), a first step is to confront its naturalization of the anti-materialist Westphalia myth. This naturalization is ac-complished by positioning the US as the virtuous other to the European state-system that was allegedly formed according to this myth, leaving the myth intact as a base presumption. Thus, claiming that the US is either unbound by external norms or
9 This is rife in both Neoconservative and liberal American Exceptionalist histories of international law. An example from the former is the claim that the United Nations’ ‘terrorism-enabling’ com-mitments to sovereign equality and non-intervention necessitates a return to the early nineteenth-century Concert of Europe model of great power interventionism, see Yoo 2014. (For an application of international legal structuralism to expose the fallacious, and, nature of this narrative, see De-sautels-Stein 2016b.) Another Neoconservative example is the critique of condemnations of US breaches of the law of armed conflict, monolithically understood, by pointing to histories of differing Anglo-American vs. continental interpretations to show there is no singular ‘law of war,’ see Rabkin 2014. (However, this fails to account for the ways in which the law of armed conflict in its current manifestation was, in great part, shaped to directly serve American interests, see Barsalou 2018.) On the liberal end, a prominent example is Oona Hathaway and Scott Shapiro’s claim that the suc-cessful ban on aggression and conquest emerged through the distinctly American creation of the 1928 Paris Peace Pact (aka the Kellogg-Briand Pact) that lead to series of legal innovations resulting in a ‘New World Order,’ Hathaway and Shaprio, 2017. However, this narrative both ignores alter-native agencies that contributed to this result, namely the Third World (see Barkawi 2018) and is premised on the morality of American hegemony over the rest of the world (see Wertheim 2018).
represents an unparalleled perfection of those same norms, presumes it was spawned from a Westphalian world order where sovereign equality, non-interven-tion, and the toleration of ideological pluralism were well-established principles. In other words, ‘American Exceptionalism’ in international legal discourse only re-ceives its animating impetus by reference to an ahistorical presumption regarding the origins of the international states-system.
My alternative approach is to view the US’s emergence not as an exceptional sov-ereign state within a world of ordinary sovsov-ereign states, but to highlight the contin-gent nature of the ‘sovereign state.’ This allows me to depict the US as a novel political form generated through the contradictory interactions of variegated hier-archical empires on a global scale. Against this backdrop, the foundational Ameri-can assertion of popular will as a basis for sovereign authority challenged some forms of colonial domination, while simultaneously venerated others. This realiza-tion provides grounding for a materialist account that can explain why both West-phalia and American Exceptionalism ultimately gained their purchase as standard abstractions despite the greater explanatory potential of a more materialist account.
Thus, while popular will exists at the heart of American Exceptionalist discourse, uncovering the true impact of how American popular will transformed the interna-tional legal order means abandoning (or at minimum deeply provincializing) Amer-ican Exceptionalism as a useful analytical category.
As an entry point into a more materially grounded explanation of the American Revolution and its international legal impact, we must confront the ways in which this event challenges our definition of ‘revolution’ conventionally understood. This is especially pronounced when considering how a colony seeking independence from a metropole via a war of liberation differs from a revolution against an internal social order. Comparing the American Revolution and the French Revolution starkly highlights this comparison in that, according to Thomas Barrow:
A French Revolution is the product of unbearable tension within a so-ciety. The purpose of such a revolution is to destroy society as it exists,
or at least destroy its most objectionable aspects, and to replace some-thing old with somesome-thing new. In contrast, a colonial “revolution” or war of liberation has as its purpose the achievement of self-determina-tion, the “completion” or fulfilment of an existing society, rather than its destruction.10
However, this distinction raises the question of what social ends American settlers were aiming to fulfil through their recourse to armed struggle against the colonial metropole. Confronting this question presents an opportunity to take seriously the reality that American revolutionary ‘anti-colonialism’ was inseparable from its un-impeded pursuit of another form of colonialism.
A dynamic of overwhelming relevance towards this end is the distinction between
‘colonialism’ and ‘settler colonialism.’ While the former is concerned with estab-lishing relations of domination and exploitation over a discrete population to further external interests, the latter functions according to a logic of replacement whereby an external population/social order systematically extinguishes the previous one.11 In other words, the creation of a new settler society is premised on the elimination of the native society.12 Although settler colonialism is often part of larger colonial schemes, it is entirely possible that a settler society breaks away from the metropole and persists as an independent entity while retaining its animating structural logic.13 On this basis, while attaining formal independence is often depicted as the advent of ‘decolonization’, this narrative hardly accounts for remaining indigenous popu-lations within a settler colony whose experience of conquest persists as long as the
10 Barrow 1968, 463.
11 ‘…settler colonialism has both negative and positive dimensions. Negatively, it strives for the dissolution of native societies. Positively, it erects a new colonial society on the expropriated land base.’ Wolfe 2006, 388.
12 Ibid.
13 On the differentiation between colonialism as a general phenomenon and settler colonialism as often connected, but nonetheless distinct, set of relations, see Vercini 2014.
settler society does.14 In Patrick Wolfe’s iconic depiction, ‘invasion is a structure not an event.’15
In grounding my analysis in the chapter, much insight draws from Aziz Rana’s Two Faces of American Freedom where the settler colonialism paradigm provides a striking revision of American legal and political development. When expounding upon this notion of ‘two faces’, Rana argues that the liberty of a foundational egal-itarian American political community of white male Protestant property-owners was premised on the suppression of those falling outside of this ideal.16 By viewing these two features, not as an aberration, but as a mutually-reinforcing structure, a link is forged between ‘…the emancipatory and oppressive features of the Ameri-can experience.’17 Here ‘[s]ettler society’s ethnic basis flattens internal inequalities while justifying the construction of dependent external communities.’18 This focus on the US as a ‘settler empire’ delivers a serious blow to ‘American Exceptionalism’
narratives for ‘American commentators and citizens often view aspects of national history to be uniquely homegrown, when in fact they are present to a degree in numerous settler societies.’19 From this premise, Rana historicizes ‘American Ex-ceptionalism’ as a discursive ethos that arose in the late-nineteenth/early-twentieth
14 The need for this particular explanatory frame stems from the fact that many formative theories of anti-colonialism, particularly those of Franz Fanon and Amilicar Cabral, appealed to the injustice of a vast colonial majority being ruled by a small minority of colonisers. Such a rallying call scarcely applied to the plights of indigenous peoples who were rendered minorities in their ancestral home-lands, Wolf 1999, 1-3.
15 Wolfe 2006, 388.
16 This is especially true of the indigenous societies whose disappearance was a precondition to this ideal community. As such, their treatment became the template for dealings with a wide array of excluded populations including Catholics, African Americans, Mexican Americans, and ‘non-white’
immigrants. Rana 2010.
17 Ibid. 10.
18 Ibid.
19 Ibid. 11.
centuries and was anachronistically conflated with the eighteenth century American founding.20