The Constitution of Empire

The Constitution of Empire: Territorial Expansion and American Legal History

GARY LAWSON
GUY SEIDMAN
Copyright Date: 2004
Published by: Yale University Press
Pages: 288
https://www.jstor.org/stable/j.ctt1nq6bp
  • Cite this Item
  • Book Info
    The Constitution of Empire
    Book Description:

    The Constitution of Empireoffers a constitutional and historical survey of American territorial expansion from the founding era to the present day. The authors describe the Constitution's design for territorial acquisition and governance and examine the ways in which practice over the past two hundred years has diverged from that original vision.Noting that most of America's territorial acquisitions-including the Louisiana Purchase, the Alaska Purchase, and the territory acquired after the Mexican-American and Spanish-American Wars-resulted from treaties, the authors elaborate a Jeffersonian-based theory of the federal treaty power and assess American territorial acquisitions from this perspective. They find that at least one American acquisition of territory and many of the basic institutions of territorial governance have no constitutional foundation, and they explore the often-strange paths that constitutional law has traveled to permit such deviations from the Constitution's original meaning.

    eISBN: 978-0-300-12896-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xii)
  4. Introduction: From Sea to Shining Sea . . . and Beyond
    (pp. 1-14)

    In 1809, Thomas Jefferson wrote to James Madison that “no constitution was ever before so well calculated as ours for extensive empire.”¹ Our goal is to evaluate Jefferson’s statement by undertaking a constitutional and historical survey of American territorial acquisition and governance. History has largely validated Jefferson’s imperial enthusiasm. It is less clear that the Constitution does so.

    When the last of the original colonies ratified the Constitution in 1790, the United States consisted of thirteen geographically contiguous states clustered on or near the Atlantic Ocean plus a large federal territory, destined for statehood, which extended westward to the Mississippi...

  5. PART I Acquiring Territory
    • 1 Fundamentals: Lessons from Louisiana
      (pp. 17-85)

      The story of the Louisiana Purchase has been often told.¹ In large measure, it is a story of simple expansionism: “because it’s there” is a tempting (even if ultimately inadequate) explanation for most any American territorial acquisition. In the case of the Louisiana Purchase, however, the key plot elements were trade and navigation.

      The eastern portion of the United States in the late eighteenth century had ready access to the Atlantic Ocean. The territory west of the Allegheny Mountains did not. As late as 1817, a trip from Cincinnati to New York took at least fifty days, while a trip...

    • 2 Forms: Trouble with Texas?
      (pp. 86-102)

      The Louisiana Purchase initiated a century of American expansion that brought all of the present continental United States into American possession and created an empire that ranged from the Arctic to East Asia. The forms of acquisition ranged from naked conquest (California, the Southwest, and the insular possessions) to thinly disguised conquest (Florida) to diplomacy (Alaska, and perhaps Oregon) to discovery (the guano islands, and perhaps Oregon) to annexation (Texas and Hawaii). All of these episodes raise important questions of history, morality, and political theory, but only a few, and perhaps an unexpected few, raise serious questions of constitutional law....

    • 3 Limits: Conquest and Colonialism
      (pp. 103-118)

      By 1854, the United States had completed its acquisition of the American mainland by conquering California and the American Southwest from Mexico. Half a century later, America had expanded south into the Caribbean, north to Alaska, and west all the way to the Philippines. The forms of these acquisitions were all familiar: treaty and annexation. Two things, however, were different from the previous acquisitions. First, much of this territory was acquired as spoils of war. Second, all of the territories acquired after 1854 were ethnically, culturally, and geographically distant enough from the mainland to raise doubts about their suitability as...

  6. PART II Governing Territory
    • 4 Constitutional Architecture I: Territorial Legislatures and Executives
      (pp. 121-138)

      Once territory is acquired by the federal government, it must be governed until it becomes part of an American state or an independent nation. Constitutional questions about territorial governance have been at the heart of some of the most famous and contentious episodes in American constitutional history. It is easy to forget thatMarbury v Madisoninvolved the appointment of a territorial official. Marbury’s commission was as a justice of the peace for the District of Columbia, and the constitutional status of territorial judges was prominently in the case’s background. Half a century later,Dred Scott v Sandfordcaused problems...

    • 5 Constitutional Architecture II: Territorial Courts
      (pp. 139-150)

      The territorial institution best known to legal scholars—and whose demise would probably cause the least distress—is the territorial court. Territorial judges neither “hold their Offices during good Behaviour” nor “receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office,” as Article III of the Constitution requires for “Judges, both of the supreme and inferior Courts.”¹ For example, Congress has created a District Court of Guam with “the jurisdiction of a district court of the United States . . . and that of a bankruptcy court of the United States.”² Unlike regular, tenured...

    • 6 War and Peace: Military Occupation and Governance
      (pp. 151-187)

      During wartime, it is possible for the United States to occupy and govern territory that it does not own in any relevant constitutional or international sense. Suppose that during a war with Mexico, American military forces penetrate into Mexican territory. The occupied territory is not “Territory . . . belonging to the United States” within the meaning of the Territories Clause. Congress could not sell or cede the occupied territory to a third country or vest its land in American citizens, at least not until the territory was formally transferred to American sovereignty, usually by a peace treaty after the...

    • 7 Bulwark or Façade? The Rights of Territorial Inhabitants
      (pp. 188-201)

      It is easy to overdraw a distinction between constitutional provisions that protect rights and provisions that pertain to governmental structure. Structures often protect rights, and rights are often meaningful only in the context of particular structures. For example, the constitutional requirement that only tenured judges with salary protections can exercise the federal judicial power is a structural provision that carries a corresponding “right” to certain adjudications—certainly at least adjudications of criminal guilt—by government officials possessing certain structural characteristics. And many of the provisions of the Bill of Rights that are often considered paradigms of “rights-bearing provisions” actually have...

  7. Conclusion: Imperial Reflections
    (pp. 202-206)

    Was Thomas Jefferson right in 1809 about the Constitution’s suitability for empire? It depends.

    First, it depends on what one means byempire. The Constitution readily accommodates an increase in the number of states in the union. As long as territorial acquisitions are designed to serve the purposes of statehood, territory can be acquired through the Treaty Clause, the Sweeping Clause, or some combination of the two. Governing that territory in a fashion that prepares the population for statehood does present some formal problems in light of the structural imperatives of the Appointments Clause and Article III. Because territorial executives...

  8. Notes
    (pp. 207-256)
  9. Index
    (pp. 257-272)