The Louisiana Purchase and American Expansion, 1803-1898 1461644682, 9781461644682

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ROWMAN & LITTLEFIELD PUBLISHERS, INC. Published in the United States of America by Rowman & Littlefield Publishers, Inc. A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.rowmanlittlefield.com PO Box 317, Oxford OX2 9RU, UK Copyright © 2005 by Rowman & Littlefield Publishers, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the publisher. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data The Louisiana Purchase and American expansion / edited by Sanford Levinson and Bartholomew Sparrow. p. cm. Includes bibliographical references and index. 9781461644682 1. Louisiana Purchase. 2. United States—Territorial expansion—History—19th century. I. Levinson, Sanford, 1941- II. Sparrow, Bartholomew H., 1959E333.L925 2005 973.4’6—dc22 2005009050 Printed in the United States of America ™ The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library

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Table of Contents

Title Page Copyright Page Acknowledgments Introduction 1 - The First “Incorporation” Debate 2 - “The Strongest Government on Earth”: Jefferson’s Republicanism, the Expansion of the Union, and the New Nation’s Destiny 3 - The Louisiana Purchase and the Coming of the Civil War 4 - Settling the West: The Annexation of Texas, The Louisiana Purchase, and Bush v. Gore 5 - Texas 6 - The Golden Death of Jefferson’s Dream: California and the Sectional Crisis 7 - A Promise of Expansionism 8 - Puerto Rico’s Political Status: The Long-Term Effects of American Expansionist Discourse 9 - The Constitution and Deconstitution of the United States 10 - Modes of Rule in America’s Overseas Empire: The Philippines, Puerto Rico, Guam, and Samoa 11 - Empires External and Internal: Territories, Government Lands, and Federalism in the United States Index About the Contributors

Acknowledgments We would like to thank the persons who made the Symposium on the Louisiana Purchase and American Expansion—and thus this volume—possible: Betty Sue Flowers, Director of the Lyndon Baines Johnson Presidential Library, William Powers, Dean of the University of Texas School of Law, John Higley, Chair of the Department of Government, and Richard Lariviere, Dean of the College of Liberal Arts. We are grateful for their generous support. We are also appreciative of the comments by the discussants and other speakers at the Symposium on the Bicentennial of the Louisiana Purchase: Alex Aleinikoff, Stuart Benjamin, Sarah Cleveland, Rodolfo de la Garza, George Forgie, William Goetzmann, Jack Rakove, Sean Theriault, Gerald Torres, and Eliot West. Their comments enriched discussion and resulted in better contributions to the volume. We are further grateful to Philip Bobbitt, William Forbath, Scot Powe, Gretchen Ritter, and Jeff Tulis for their participation. Suzanne Hassler, Symposium Coordinator, provided invaluable assistance with planning, scheduling and other conference logistics. Seth Miller and Jonathan Chausovsky ably assisted her. Finally, we thank the contributors for their essays and their cooperation in bringing this volume to completion.

Introduction Sanford Levinson and Bartholomew H. Sparrow What does it mean for a nation-state to incorporate new regions? What did Jefferson think about the possibility of a gigantic continental republic? To what extent was the slavery issue inextricably linked with western expansion? Was the independent republic of Texas constitutionally admitted into the United States? What exactly makes some constitutional issues —such as the propriety of Texas’s admission—settled and others open-ended? What impact did the gold rush have on American political culture? Did expansionism and the promise of an agriculture-based society blunt the impetus of capitalism and a concentration of wealth? And how did the United States constitutionally and ideologically justify the acquisition of and then continued rule over its island possessions—none of which were envisioned as potential states —in the Caribbean and the Pacific? Does the U.S. Constitution speak at all to how the United States might relinquish its control over these territories? Finally, what happens if we analyze the territorial possessions in tandem with the vast lands held by the United States that nominally lie within state boundaries? All of these questions are addressed in the following essays, all of which, save Professor Currie’s examination of Texas’s annexation by the United States in 1844, were presented at a 2003 symposium at the University of Texas, “The Louisiana Purchase and American Expansionism.” Two chief purposes underlay the symposium. One is obvious: As suggested by the questions above, the Louisiana Purchase was a seminal event in American political, social, economic, and constitutional development, amply worth taking account of and placing in an overall context of American expansionism. The second is less obvious, especially to those readers who do not live their lives within the American legal academy. The year 2003 was the bicentennial year not only of the purchase, but also of John Marshall’s opinion in Marbury v. Madison, the subject of at least half a dozen symposia at American law schools. Most legal scholars—and all too many historians and political scientists—appear to believe that Marbury was the most important constitutional event of 1803, inasmuch as the chief justice, writing on behalf of the Supreme Court, invalidated an obscure provision of the Judiciary Act of 1789 by way of explaining why the Court could not exercise the jurisdiction in the case ostensibly provided by that provision. Although earlier cases had presupposed the power of judicial review (and, therefore, the possible invalidation)

of federal statutes, Marbury was the first example of the actual exercise of this power to negate a legislative enactment. The second purpose, then, is to put Marbury in its place, as it were. One does not have to dismiss Marbury in order to believe, as we do, that the Louisiana Purchase—and not Marbury—was by far the more important constitutional action of 1803. The priority given Marbury by legal academics is, we believe, not only mistaken, but also, and perhaps more important, reflective of what might be called the “professional deformation” among many such academics to overemphasize the role of courts, especially the Supreme Court, and, concomitantly, to underestimate the importance of other institutional actors with regard to American constitutional development. We are not, of course, voices in the general wilderness with regard to the importance of the purchase. Almost every scholar of early American history, diplomatic history, and presidential politics recognizes the importance of the purchase; after all, it added 829,000 square miles to the land area of the United States and thereby doubled its size and set a striking precedent of the exercise of presidential power. Moreover, it removed France, with the world’s then-most powerful army, from the mainland of North America. An unfortunate aspect of the division of labor among scholars, though, is that most historians (and those fewer political scientists) who have written about the purchase have tended to shy away from discussing the profound legal and constitutional questions that it generated. Generally, this reflects a lack of professional training in the law; unfortunately, it also reflects an undue confidence that trained lawyers would in fact recognize the importance of the purchase and “fill in the legal blanks,” as it were. Because of the infatuation with courts, however, exemplified by the overemphasis on Marbury’s importance, most constitutional historians themselves have failed to pay due heed to the relevance of the purchase—and its aftermath of continued American expansion—for their own work. We hope that this volume will help lead to a recognition that no future discussion of American constitutional development can possibly ignore the purchase and subsequent expansion, just as we hope, of course, that these essays will make it easier for those scholars who have been interested in the purchase and its implications to grasp the legal issues that were involved and to integrate them in the often excellent accounts that they offer of 1803 and its aftermath. From one perspective of the Constitution, the expansion of the United States by treaty was unexceptional. (This was the view adopted, for example, by Jefferson’s secretary of the treasury, Albert Gallatin.) After all, the Constitution allowed the United States to enter into treaties, subject only to ratification by two-thirds of the Senate after their submission by the president. The Constitution listed no limits as to the proper subject matter of treaties, while the exchange of territory, often as a result of war, had been a traditional feature of the international system of states that the newly independent United States was just now joining. Furthermore, Article IV, Section 3 of the Constitution explicitly provided that “[t]he Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory ... belonging to the United States,” and that Congress had the power to admit “[n]ew States” into the Union. So why did Thomas Jefferson, whose negotiation of the purchase would be viewed by

historians as one of the triumphs of his checkered presidency, express doubts over his constitutional powers to acquire the vast new lands of Louisiana? Jefferson himself suggests the answer in a letter he wrote to John Dickinson, a political colleague and friend dating back to Philadelphia’s Independence Hall, where Dickinson had signed the Declaration of Independence. “Our Confederation is certainly confined,” Jefferson wrote Dickinson, “to the limits established by the revolution. The general government has no powers but such as the constitution has given it; and it has not given it a power of holding foreign territory, and still less of incorporating it into the Union. An amendment of the constitution seems necessary for this.”1 Part of Jefferson’s argument is formal, of course, since it concerns the nature of the provisions of the U.S. Constitution (see below). But another part rested on an intensely practical point: the fact that the Treaty with France promised to incorporate the region of Louisiana as states into the Union, thus making its (white) residents full citizens of the United States. The realization of this promise, with Louisiana leading the way in 1812, would utterly transform the character of the American Union. As William Freehling suggests in his essay, we are, perhaps, led to underestimate the impact of adding the territory of “Louisiana” to the Union because we tend to identify that “Louisiana” with the present state called “Louisiana.” If we adopt Freehling’s thought experiment and start referring to it as, say, the “Mid-America Purchase,” however, we are encouraged to realize the immensity of the enterprise, in many different senses. Most obvious, of course, is the sheer size of the purchase. The fledgling government of the United States only recently had established its new capital in Washington, D.C., not least because it was, relatively speaking, at the center of the American republic that in 1800 extended northward to Maine (then part of Massachusetts), southward to Georgia and westward to the Mississippi (though something like two-thirds of the American population of the time, not counting American Indians, lived within fifty miles of the Atlantic ocean). The Louisiana territory, which would ultimately become the home of no fewer than ten separate states, in addition to parts of Montana and Wyoming, immediately extended our borders to the Rocky Mountain West. No other single territorial acquisition would be as large or lead to as many new states. Indeed, it was the purchase that vitalized the famous expedition led by Lewis and Clark to gain knowledge of these vast, basically unknown, lands. Jefferson’s interest in natural history made him curious about those then-unknown territories even before the purchase; afterward, their exploration became what contemporary lawyers might term a “compelling national interest.” Size matters. After all, a basic controversy of the ratification debates was whether the American goal of “republican” government could be successfully achieved in what political theorists of the time called an “extended republic.” Montesquieu, the French political philosopher, had suggested that republican government required a relatively small polity, in which people (and their leaders) shared an essentially homogeneous culture and set of political understandings. And while Madison famously criticized this argument in the tenth and fourteenth Federalist Papers, it is not clear that Jefferson actually agreed fully with Madison. In any event, the Union of 1788, as had been defended by Madison, Hamilton, and other

Framers, was significantly smaller than the Union created by the Louisiana Purchase. Even if one believed that one could have an “extended republic” that went beyond the specific confines of New York, Virginia, or Massachusetts to include all three (and the other original states and territories besides), this did not entail the possibility of what might be termed “indefinite extension.” The authors of The Federalist, that is, did not envision themselves as writing a brief in behalf of world government. Consider also the aspect of homogeneity of the United States. When Jefferson became president in 1800 the Union was larger—Vermont had been added in 1791, Kentucky in 1792, and Tennessee in 1794)—but scarcely less (relatively) homogeneous than had been the case in 1787. The overwhelming majority of the three million people of the thirteen original states— or, more to the point, the overwhelming majority of those permitted to participate in the polity —were white, Protestant, and English-speaking (in addition, of course, to being male). John Jay, the oft-ignored third author of The Federalist , emphasized this element of homogeneity in one of his few contributions to the enterprise. Thus, wrote Jay in the second Federalist: Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence. This could no longer be said of America in 1804, when a reelected Thomas Jefferson presided over a United States that had been so dramatically expanded. It required a significant leap of faith to expand as well The Federalist’s argument (especially if we include Jay within the toga worn by the mysterious “Publius”) and to embrace not only a far larger and more populous country, but also one that would be far less homogeneous. With the addition of Louisiana came the addition of the polyglot (mostly French) mixture of persons in and around New Orleans and spread out over the western half of the Mississippi River valley. Most of these persons practiced Catholicism and did not speak English. Even those white Protestants in the existing states who were tolerant of bilingualism were very likely to be German-speaking Pennsylvanians; they were unlikely in the extreme to identify with Franco-Catholics. If this were not enough, New Orleans and its environs were ruled not by the mysterious (and arcane) premises of the common law, but, rather, by the distinctly rationalist premises of the Napoleonic Code. Blackstone was undoubtedly an unknown figure in New Orleans; he played no role in constituting the legal culture of New Orleans. Thomas Jefferson, who like many other Virginians had studied Blackstone with George Wyeth at Williamsburg, would have no basis for a legal conversation with well-trained French lawyers. It would be like an American football fan meeting a European who knew only soccer! What common culture could unite such people? To this day, Louisiana is unique among the states both for its culture and for the fact that much of its legal system is based on the Napoleonic

Code. Indeed, the Territory of Orleans continued to attract non-Anglo immigrants from the Caribbean and elsewhere. From 1804 to 1806 alone, it attracted ten thousand new immigrants, while it added another four thousand persons in 1807-1808, many of them refugees from Saint Domingue (Santo Domingo). Given the questionable fitness of the inhabitants of the Territory of Orleans for self-rule (as the Americans of the states saw it), Jefferson took the precaution of installing a military governor. With the Louisiana Purchase, then, the United States for the first time explicitly incorporated aliens—persons of different nationality and ethnicity—as Americans. Unlike the voluntary immigration of virtually all other inhabitants of the United States up to that point (with the exceptions of the importation of African slaves and the conquest and very partial assimilation of Native Americans), the non-slave, non-Indian population of New Orleans and the Louisiana Territory became part of the American nation involuntarily, as a result of the high level actions of the French, American, and Spanish governments, rather than as a result of their own actions. Involuntary incorporation would be the later fate of Mexicans in Texas, those Hispanics of the 1848 Mexican Cession, and the native inhabitants of Caribbean and Pacific islands annexed as parts of the United States in 1898 and 1899. The huge addition of the Louisiana Purchase also drastically changed the Union by setting into motion a process of further geographic expansion, a process of continental and, later, extracontinental expansion captured by John O’ Sullivan’s phrase, “Manifest Destiny” (as Paul Kens points out in his essay). The soaring population, flows of internal migration, economic growth, and hunger for land occasioned by the Louisiana Purchase led to a United States that extended yet further north into the upper Midwest, south to the Gulf Coast and Texas, east into Florida, and west to the Pacific coast and beyond. The most notable era of expansion after the Louisiana Purchase came in the 1840s with the annexation of Texas in 1845, the settlement of the Oregon border in 1846, and the cession by Mexico, following the conclusion of the controversial Mexican-American War, of its most northern and western lands under the 1848 Treaty of Guadalupe Hidalgo. The events of the 1840s (with the exception of the Gadsden Purchase of 1853) established U.S. sovereignty over the entire area of the contemporary “lower” forty-eight states, a term that itself gains meaning only from its reference to the “higher” state of Alaska, purchased from Russia in 1867, though not granted statehood for another eighty-five years. The other remarkable period of expansion came in the late 1890s, when the United States acquired Guam, Puerto Rico, and the Philippines in the aftermath of the Spanish-American War, annexed Hawaii, and got Eastern Samoa as a result of a three-part deal with Britain and Germany. (The United States would also later purchase the Virgin Islands from Denmark.) Questions of the size, homogeneity, and geographic trajectory of the United States may have been a few of the fundamental issues raised by the Louisiana Purchase, but lurking in back of them was the matter of slavery. After all, the Framers of 1787-1788 had agreed to a compromise whereby the states to be carved out of the Northwest Territory would be free of slavery, while southern states, beginning with Kentucky and Tennessee but later including

Alabama and Mississippi, would enter the Union as slave states. Each region would thus have a veto over any untoward ambitions of the other, thereby safeguarding the Union. The Louisiana Purchase, though, was a gigantic wild card in this game of political poker. Each region reasonably feared that the entrance of new states, each with the right to elect two senators and to provide new members of the House of Representatives (as well as to elect presidents through the Electoral College and affect the politics of constitutional amendment), might tip the balance carefully achieved in 1787. (One might, of course, lament that the initial compromise was entered into at all; there were, after all, those who advocated rejection of the Constitution precisely because it did collaborate with slaveholders. But the dominant opinion at the founding was that achieving the Union justified the means of compromising on the matter of slavery.) The addition of Louisiana and subsequent expansion of the United States eventually forced political questions over slavery out into the open, however, and brought them to a head. The United States’ purchase of Louisiana and the expansion it engendered made slavery the issue of American politics—trumping partisanship, nationalism and nativism, and the tariff. On the one hand, the Louisiana Purchase and, later, the Missouri Compromise did facilitate the coexistence of free and slave states, and thereby allow for the further expansion of the United States and continuation of the balancing accepted at the founding. Congress paired the annexations of slave states with free states; Congress and the courts supported the rights of slave owners over slaves in the territories and free states; and the Compromise of 1850 (which admitted California as a free state, established Texas’s current smaller boundaries, and kept New Mexico as a territory) was adopted. All these served to delay the day of reckoning. On the other hand, as the histories of the 1846 Wilmot Proviso, the 1850 Fugitive Slave Act, the 1854 Kansas-Nebraska Act, and the 1857 Dred Scott decision (which declared the Missouri Compromise unconstitutional) show, the geographic expansion of the United States also raised to the surface political issues that related directly to the slavery issue. The political parties thus became increasingly split according to section rather than by party, with northern Democrats pitted against southern Democrats and northern Whigs opposed to southern Whigs —in fact, the Free Soil and the Republican Parties would never even have emerged were it not for the controversies raised over the extension of slavery. And when compromise was no longer possible after the election of Lincoln and the ascent of the Republic Party in 1860— election through the allied votes of the western and northern states—South Carolina and the rest of the southern states saw secession as their only option if they wished to preserve their particular and “peculiar” culture. The expansion of the American republic, a consequence of the Louisiana Purchase, allowed for a postponement of that fatal conflagration. But since that same expansion also led to a more populous and more prosperous society, when the fire did burn it would be that much bigger, that much hotter. Despite the latent issues of the Louisiana Purchase—the extension of slavery, the homogeneity of the Union, and the governability of a vast American republic—almost all Americans wanted New Orleans so as to guarantee the United States the effective control of trade down the Mississippi River, even if a desire for New Orleans did not necessarily mean

support for the whole of the landmass offered by Napoleon to stunned Americans (who believed that their task was simply to persuade the French emperor to part with his crown jewel of New Orleans). But Napoleon, for his own political reasons, offered the Americans a deal that was too good to refuse, and Robert Livingston and James Monroe, the Jefferson administration’s representatives in Paris, accepted. Thomas Jefferson never seemed to express any doubts about the wisdom of the purchase; he did, however, allow himself the expression of many such doubts about its constitutional validity. As someone committed to the principle that the Constitution established only a “limited government of assigned powers”—a view, for example, that had earlier led him to oppose the constitutionality of Congress’s chartering the Bank of the United States in 1791 and to defend the “nullification” by states of the Alien and Sedition Acts of 1798 passed during the “undeclared war” with France—Jefferson could scarcely be happy with the argument that the president and two-thirds of the Senate had for all practical purposes effectively limitless power to transform the nature of the Union. To interpret the Treaty Clause in such a sweeping fashion was the same kind of bad faith for someone who believed in the limited powers articulated in the Constitution, and not in an elastic, politically pragmatic interpretation such as that offered by his despised enemies in the Federalist Party regarding the use of the Necessary and Proper Clause to justify the Bank of the United States or, even more offensively for Jefferson, the suppression of civil liberties by the national government in the late 1790s. (Jefferson had no principled objection to a state’s suppression of civil liberties, since he felt that citizens had less to fear from their own state governments, composed of their friends, neighbors, and acquaintances, than from a distant national government dominated by strangers.) What, then, of the Territories Clause, which, by definition, has the United States in possession of territories? Jefferson’s insistence to Dickinson that “[o]ur Confederation is certainly confined to the limits established by the revolution” in fact accords with the views of several Federalists in Congress at the time, as well as the argument that would be made a half century later by Chief Justice Roger Brooke Taney in Dred Scott—a case that turned, in substantial aspect, on the reach of Congress’s power to regulate the territories. Taney argued that the Territories Clause only referred to the territories in existence at the time of the ratification. The territories of the United States were thus confined to the old Northwest, the area that now contains the present states of Ohio, Michigan, Illinois, Indiana, and Wisconsin and that was to be administered under the 1787 Northwest Ordinance, as well as the transAppalachian west and Southwest Territory of Tennessee, Alabama, and Mississippi. Similarly, Jefferson’s rejection of the “power of holding foreign territory, and still less of incorporating it into the Union” is best understood as a distinctly limited view of the reach of the Territories Clause. This presumably also meant that the Treaty Clause was unavailing to turn “foreign territory” into “domestic territory”—and, more important, to transform the entire country by any such addition—simply by the Senate’s ratification of a treaty by which the prior foreign owner would consent to its purchase by the new owner, the United States of America, hence Jefferson’s suggestion that a constitutional amendment would be necessary to validate

the purchase. But there was a crucial problem with going the route of a formal constitutional amendment through Article V: the U.S. Constitution is extremely difficult to amend. A constitutional amendment requires, of course, the approval of two-thirds of each house of Congress and the ratification by the legislatures of three-quarters of the states. Given that each of the seventeen states in 1803 (Vermont, Kentucky, Tennessee, and Ohio were now states in the Union) were themselves bicameral—only Nebraska, admitted as the 37th state to the Union in 1867 has a unicameral legislature—this meant that as a practical matter the proposed amendment would have needed the approval of at least thirteen pairs of state legislatures or that of thirteen state conventions, as well as two-thirds of both houses of Congress. Because a number of Federalists were skeptical about the purchase, accurately perceiving it to be freighted with many dangerous implications with respect to slavery and political balance, there was certainly good reason to doubt whether the desired amendment could have been ratified. And that is assuming that Napoleon would have been kind enough to leave the offer open long enough to bear the inevitable delays attendant on finding the requisite support from the states. As a practical matter, then, it was impossible for Jefferson’s wish for a legitimating amendment to be realized. Instead, Albert Gallatin, Jefferson’s friend and political ally who saw no problem with using the Treaty Clause to expand the United States, prevailed. Thus did the Senate ratify the treaty with France, and France formally delivered the territory to the United States in December 1803. America was never the same. The fact that Gallatin prevailed did not mean that Jefferson’s doubts were truly stilled. As Jefferson wrote one correspondent, “whatever congress shall think it necessary to do, should be done with as little debate as possible, & particularly so far as respects the constitutional difficulty.” In case this was too subtle, Jefferson forthrightly told another correspondent “the less that is said about the constitutional difficulties, the better.”2 The Louisiana Purchase, surprising Jefferson’s delegation in Paris and the rest of the country in its scope and audacity, could not be passed over. And since there was some reason to believe that Napoleon might withdraw his offer should the United States tarry at all, let alone insist on taking the time necessary for formal amendment, any constitutional doubts had to be suppressed. The president’s most famous defense of the purchase is contained in an 1810 letter to John Colvin: “A strict observance of the written law is doubtless one of the high duties of a good citizen, but is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.”3 The end does indeed justify the means, then: Jefferson obviously believed that expansion of the Union’s territory was sufficiently important to the flourishing of the Union—perhaps, even, to “self-preservation” if one feared that the territory in hostile hands might serve as the base for future attacks on a truncated United States —to justify shelving his own professed commitment to “strict observance of the written law.” If the history of the Louisiana Purchase reveals the flexibility and adaptability of the Constitution at the hands of a shrewd president and party-controlled Senate and House (which

had to pass the spending bill to pay for the purchase), it also reveals the Constitution’s blind spots. In fact, the Constitution is silent on the issues implicit with the acquisition of the Louisiana Purchase and the United States’ subsequent territorial additions—issues of citizenship, territorial governance, and the admission of new states into the Union.4 As a matter of fact, the Constitution mentions “territory” only once, in the Territories Clause, despite the fact that a reading of the record of the constitutional convention shows that concerns about the so-called western lands—that is, those territories west of the Atlantic-Ocean-abutting states that comprised the original states of the Union and that were ceded to the United States by such states as New York and Virginia (to become, in time, such states as Kentucky or Illinois)— were rarely far from delegates’ minds. Moreover, the Constitution is remarkably terse about the process by which states may be annexed into the Union. “New States may be admitted by the Congress into this Union” as long as states are not formed through the fragmentation or merger of existing states in the absence of the consent of all the state legislatures involved and the U.S. Congress (Article IV, Section 3, Clause 1). Perhaps they were thinking only of the territories already part of the United States; perhaps this suggested that Congress could by majority vote add foreign territory like Canada to the Union without any further ado. One just doesn’t know from reading the text how broad is its application. Citizenship was assumed to be a matter for the states. American territorial inhabitants were U.S. citizens, Chief Justice John Marshall ruled, just like the citizens of the District of Columbia. But they were “not state Citizens.”5 As Marshall later asked: Does [the ‘United States’] designate the whole, or any particular portion of the American empire? Certainly this question can admit of but one answer. It is the name given to our great republic, which is composed of the states and the territories. The district of Columbia, or the territory west of the Missouri, is not less within the United States, than Maryland or Pennsylvania; and it is not less necessary, on the principles of our constitution, that uniformity in the imposition of imposts, duties, and excises, should be observed in one, than in the other. 6 The territories were left alone for the most part, to be more or less self-governed, 7 though Jefferson was notoriously unsure that the Louisianans, with their strange ways, were truly ready for the “republican government” guaranteed by Article IV to all states (but, presumably, not necessarily to territories). At that time, though, it was assumed that territories would become states under the “equal footing” doctrine of the Northwest Ordinance. “It must be remembered that a Territory, which may be called an inchoate or rudimentary State,” James Bryce commented in the late nineteenth century, “looks forward to becoming a complete State.”8 The inhabitants of the continental American territories thus served under a kind of pupilage or guardianship. Congress and the federal government exercised plenary authority, as in a

parent-child relationship, but once Congress admitted a territory as a state the benevolence ended: Congress lost its plenary authority; the financial subsidy stopped; and the former territory became a peer, on equal footing with the existing states and possessed of its own senators and representatives. In some instances, though, Congress acted like a bad parent and went to extraordinary measures to delay a state’s admission. Utah and its Mormon population became a territory in 1850, but it was not admitted as a state until 1896. And New Mexico and its majority Hispanic population, which also became an organized territory in 1850, would not be annexed as the states of Arizona and New Mexico until 1912. Oklahoma, with its Indian population, and Hawaii, with its Asian population, were also territories where Congress long delayed their admission as states. Still, all these territories did eventually become states. But the acquisition by the United States of its possessions in the Pacific (Guam, Hawaii, the Philippines, Eastern Samoa, later the Commonwealth of the Northern Mariana Islands) and the Caribbean (Puerto Rico, later the Virgin Islands) changed the course of U.S. territorial history —now, not all territories were to become states. And with these new territories already inhabited by non-Anglo and non-English speaking persons, no longer did American politicians, governmental leaders, and the public necessarily want these territories as states. It was the ruling in the most famous of the Insular Cases, the five-to-four decision in Downes v. Bidwell,9 that created the constitutionally unprecedented category of “unincorporated territories.” The implication was not only that the U.S. Constitution did not necessarily apply fully to the U.S. territories (which had also been true of the contiguous territories), but also that the Constitution may never fully apply to some areas under U.S. sovereignty. The Insular Cases cast a long shadow (and the Supreme Court has cited the Insular Cases as recently as 1978, 1980, and 1999). They legitimated the secondary status accorded to the inhabitants of Puerto Rico, the Philippines (from 1898 until 1946), Guam, American Samoa, U.S. Virgin Islands (after 1917), and the Northern Marianas (after 1975), and they have served as the legal justification for the United States’ continued possession of overseas territories, persons and areas under U.S. sovereignty but without effective representation in the federal government. Given the fundamental constitutional questions prompted by the Louisiana Purchase and its impact on the political development of the United States, one might well ask why it languishes in the shadow of Marbury. The answer, as already suggested, is depressingly simple: most American legal scholars who write on American constitutional development are infatuated with the U.S. Supreme Court and tend to agree, as a practical matter, with the famous comment of then-New York Governor, and later Chief Justice, Charles Evans Hughes that “the Constitution is what the judges say it is.” Among other things, this leads too many scholars— and their students and readers—to ignore the extent to which fundamental constitutional decisions are made by persons other than judges: U.S. presidents and members of Congress have been every bit as important as judges in defining the meaning of the Constitution. There is no better proof of this point than the Louisiana Purchase. As is evident, political actors of the time recognized that it presented a variety of complex constitutional difficulties. It

is equally evident that the Supreme Court played absolutely no role in resolving these difficulties. They were handled entirely by members of the executive and legislative branches who argued with one another and then concluded, for various reasons, that addition of the Louisiana territory through treaty was not barred by the Constitution. It is true that a full quarter century later John Marshall agreed, in a notably obscure case, that the United States could acquire new territory either by treaty or by war, but no one could seriously believe that it was Marshall’s opinion—as opposed to the decisions made in 1803—that effectively settled the matter.10 (As Mark Graber suggests in his contribution, what would it mean for the legitimacy of the acquisition of Louisiana to be “unsettled” once the handover had taken place?) The Court was in effect recognizing the new constitutional reality achieved in 1803. And, as a matter of fact, the 1828 Canter decision proved inapt with regard to justifying the annexation of Texas in 1845, which occurred neither through treaty—a treaty with the Lone Star Republic failed to receive even a majority in the Senate in 1844—nor conquest in war. David Currie elaborates some of the constitutional arguments that were made against the legitimacy of adding Texas to the Union; as Graber notes, proponents of such a view included some of the leading constitutional lawyers of their time.11 In sum, the Louisiana Purchase stands as a remarkable event in the constitutional history and political development of the United States. The Louisiana Purchase fostered the faster growth of the young United States and led to the creation of an “American Empire” as John Marshall termed it. Where the United States of today is a political, economic, and military leviathan, incorporating both states and non-state areas under its domain, as Bartholomew Sparrow points out in his contribution, the Louisiana Purchase led the way. There had to be a Louisiana Purchase before there could be a Missouri Compromise, the extension of slavery westward, the overruling of the Missouri Compromise in Dred Scott, and the ultimate conflagration in 1861. And where the United States stands today as a heterogeneous and multicultural society, the Louisiana Purchase also led the way. Most of the persons inhabiting Louisiana were not Native Americans, not white northern Europeans, and not black slaves (though there were many free blacks)—the three categories associated with the early American republic and famously remarked upon by Alexis de Tocqueville. The Louisiana Purchase made apparent the silence of the Constitution on the geographic growth of the United States, and thereby revealed several of the contradictions and flaws inherent in the American political system: the continued existence of U.S. territories in a nation of states; the discrepant definitions of and rights accruing to “citizens” of the territories and those of the states; and the problematic constitutional status of the territories in a United States to be governed of, by, and for the people. But of course the founders did not envision the United States as including the transMississippi west and, later, a transcontinental empire. Consider another unforeseen consequence of the purchase: the impact of the Louisiana Purchase on the provision that each state has two senators (Article 1, Section 3)—a clause that many observers believe has had an egregiously distorting effect on the American political system as Robert Dahl and Francis Lee and Bruce Oppenheimer remark.12 Yet this provision would have posed little problem had it

been applied only to the original thirteen states or even the new states added from the existing “territories” of the United States: Vermont, Kentucky, Tennessee, Maine, the five states of the Northwest Territory (Ohio, Michigan, Indiana, Illinois, and Wisconsin), Alabama, and Mississippi. For better and for, perhaps, worse, one can imagine a Union of twenty-four states, together with their forty-eight senators, continuing in a stable existence of eleven slave and thirteen free states (some of which were controlled by Democrats more than happy to appease the slave states in behalf of other national goals). Such stability was chimerical, though, once expansion assured the introduction of many new states whose status—as “slave” or “free”—became the most controversial issue of the era. The addition of new free states carved out from the purchase threatened the diminution of slave power in the Senate. And, to the extent that population growth in the United States would increasingly take place outside the South, even power in the House, with its principle of proportional representation, might start shifting against Southern interests, even if one takes into account the “bonus” provided by the three-fifths clause that allowed their slave population —entirely unrepresented as a practical matter—to count as part of the basis for allotting seats in the House. The chapters that follow elaborate on the constitutional and political issues raised by the Louisiana Purchase. Gary Lawson and Guy Seidman, David Currie, Mark Graber, and Christina Burnett explore the constitutional issues at stake in the Louisiana Purchase, western expansion, and the United States’ possession of overseas territories. It is worth noting that Lawson and Seidman predicate their argument on a very controversial theory of “original intent” that relies far less on specific historical evidence as to what members of the founding generation in fact said about the issues presented, than on what might be termed a “rational reconstruction” of what they probably would have said, at least according to Lawson and Seidman, had they been aware of all of the complexities. One need not accept Lawson’s and Seidman’s “meta-theory” of constitutional interpretation in order to find their chapter extremely illuminating about what we have termed above the “silences” of the Constitution with regard to the issues surrounding American expansion. As it happens, even Stanford Professor Jack Rakove, who severely criticized their interpretive methodology as a discussant at the symposium, agreed in large measure with where they came out on some of the specific questions involving what might be termed a “Jeffersonian approach” to the Constitution. That is, every historian agrees the Louisiana Purchase was viewed by some of its participants as generating constitutional questions of the highest magnitude, and we believe that Lawson and Seidman are illuminating as to what these questions (and possible answers) are—whether or not one agrees with their particular method of analysis. In any event, one purpose of symposia is to introduce new and sometimes quite jarring ways of looking at things. Indeed, as we have suggested throughout this introduction, it was a general purpose of the symposium to raise some quite jarring questions, beginning with our asking if Marbury merited the attention it was receiving in its bicentennial year. It no doubt jarred some of the audience at the University of Texas to hear Mark Graber note that constitutional arguments against the 1844 annexation of Texas, today regarded as almost lunatic when articulated by fringe political groups, were presented at the time by such luminaries as John Quincy Adams and Daniel

Webster. He uses this insight to make a valuable point of how it is that some constitutional controversies become treated as “settled” even as others continue unabated over the course of many decades (as is the case, say, with abortion or the role of race in public decision making). Professor Currie carefully analyzes the constitutional arguments made at the time about Texas’s annexation; his chapter is part of his path-breaking multivolume study of The Constitution in Congress, and both of us are extremely grateful that he was willing to adapt the chapter for inclusion in this volume, even though his original “assignment,” as it were (which he fulfilled brilliantly), was to comment on Graber’s presentation. Christina Duffy Burnett presents what for some will also be a jarring argument insofar as she suggests that the deepest ramification of the Insular Cases is that inhabitants of such “unincorporated” territories as Puerto Rico, even if they are U.S. citizens, may have no constitutional right as such to remain part of the United States if the United States chooses to engage in “deannexation,” that is, giving or selling a territory to another country (just as we got Puerto Rico from Spain or the Virgin Islands from Denmark) or even unilaterally thrusting “independence” upon a territory that would much prefer to remain affiliated with the United States. One might well believe that such events are unlikely as a matter of practical politics, but Burnett’s strikingly new way of looking at the Insular Cases raises extremely deep questions about the meaning of citizenship and affiliation with the United States. All of the essays mentioned above focus more on the law and the evolution of constitutional doctrine. Peter Onuf, William Freehling, Paul Kens, H. W. Brands, Julian Go, and Bartholomew Sparrow, on the other hand, attend more to the political history of the United States at the time of the Louisiana Purchase and in the decades following. Peter Onuf, a historian, investigates Jefferson’s thinking with respect to an expansive (and expanding) American nation-state (an innovation to Montesquieu’s political philosophy, as noted above), by examining Jefferson’s extensive correspondence with the French intellectual Antoine Claude Destutt de Tracy. The historian William Freehling explores the implications of the Louisiana Purchase on the diffusion of slavery and demographic changes in the early republic. We have already noted that the Louisiana Purchase indirectly led to the annexation of Texas. However, it also extended the United States to very near the Pacific coast, which, of course, was reached both by treaty with the British concerning Washington and Oregon and, perhaps more significantly, as part of the aftermath of the Mexican War that brought California into what John Marshall referred to, in McCulloch v. Maryland, as “this vast republic.” H. W. Brands, also a historian, and Paul Kens, a political scientist and legal historian, address the cultural and social implications of the United States’ expansion and force us to reappraise the supposed democratizing effects that the ready availability of land had on American political culture (per Frederick Jackson Turner). Brands reviews the history of U.S. expansion westward to suggest that the discovery of gold in 1848 upended the presumed culture of Jeffersonian egalitarianism. Kens, for his part, reviews the history of land reform after the acquisition of Texas and the 1848 Mexican Cession to persuade us that the large majority of American settlers and pioneers hardly received the promised benefits of

expansionism. Land, the form of wealth for most of nineteenth-century America, was not nearly as widely available as we would be led to believe. Julian Go, a political sociologist, considers Puerto Rico, Philippines, Guam, and American Samoa as instances of “America’s Overseas Empire.” Go addresses the distinct histories and distinct subordinate relations that the island territories have under U.S. sovereignty. And Efrén Rivera Ramos, a professor of law, looks at Puerto Ricans’ striking and bizarre status as dependents with respect to power, citizenship, and rights. Rivera Ramos traces the anomalous constitutional and political development of Puerto Rico back to the Insular Cases. Finally, Bartholomew Sparrow, a political scientist, explores the two “empires” authorized by the Territories Clause. Given that the Territories Clause alsoe known as the “Property Clause”— for a very different legal audience—Sparrow explores how Article IV, Section 3, Clause 2 of the Constitution has been used to exercise U.S. governmental authority over both the United States’ island territories and its “internal empire” of the 29 percent of the land that lies within the fifty states but controlled by U.S. government agencies. Sparrow traces the common origins of these two phenomena back to the Louisiana Purchase and the creation of the public domain. We believe that the contributions to this volume provide what amounts to an exciting and surprising overview of the Constitution and the U.S. political system, given that the evolution of the Constitution and American politics and government are so tied to the Louisiana Purchase and the territorial expansion of the United States. At the very least this overview suggests that knowledge of American constitutional development requires far more than reading the text of the Constitution or even the decisions of the U.S. Supreme Court, that the United States is not the aggregate of its several states, and that we must always be attentive to the (ideo)logic of national expediency when trying to understand the premises (and realities) of American political development. We hardly think the following chapters below will settle those matters that they discuss. For one, we were unsuccessful in soliciting a contribution on U.S. expansion and the American Indians—an obvious gap in our account of the political and constitutional repercussions on the Louisiana Purchase.13 Nor, indeed, would we want this book to be the “last word.” The issues raised by the Louisiana Purchase are far too important and rich in historical depth, far too numerous, and far too open-ended for us to have such ambition, and we are keenly aware of just how exploratory these essays are. But we want this volume to provoke, to provide a set of crucial “first words,” as it were, that will both provide answers to important questions and, as importantly, inspire further scholarship and reading on these and related issues that are at the core of what it ultimately means to “be American” and to govern with due regard to what we like to believe is our foundational Constitution.

NOTES 1 Thomas Jefferson to John Dickinson, quoted in David N. Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville: University Press of Virginia, 1994), 247. 2 Both quoted in Mayer, The Constitutional Thought of Thomas Jefferson, 230.

3 Quoted in Paul Brest et al., Processes of Constitutional Decisionmaking, 4th ed. (Gaithersburg: Aspen Law & Business, 2000), 75. 4 Although the Constitution mentions “citizen” or “citizens” eleven times, it is only in conjunction with descriptions of the qualifications for candidates to the House, Senate, and the U.S. presidency, and for delimiting the powers of the judiciary (U.S. Const. art. III, § 2, cl. 1). Nowhere does it describe “citizenship”—the conditions under which someone is or is not an American or U.S. citizen. 5 Hepburn and Dundas v. Ellzey, 2 Cranch 445, 452-53 [1805]; John W. Smurr, “Territorial Constitutions” (PhD thesis, University of Indiana, 1960), 253-57. 6 Loughborough v. Blake, 5 Wheat. 317 [1820]. On this matter Roger Taney agreed with Marshall: “Territorial residents and District of Columbia inhabitants could be U.S. citizens only,” whereas state citizenship required “a fixed residence or domicile” (Prentiss v. Brennan, 19 F. Cas. 1278—80 [1851]). 7 Jack Erickson Eblen, The First and Second United States Empires: Governors and Territorial Government, 1784—1912 (Pittsburgh: University of Pittsburgh Press, 1968); Smurr, “Territorial Constitutions.” 8 James Bryce, The American Commonwealth (London: Macmillan, 1891), 1:556; Earl S. Pomeroy, The Territories and the United States 1861—1890 (Seattle: University of Washington Press, 1969), 2; Eblen, The First and Second United States Empires. 9 182 U.S. 144 [1901]. 10 An earlier case, Sere v. Pitot (1810), had presupposed the legitimate status of Louisiana as a territory of the United States subject to Congress’s powers under the Territory Clause of Article IV, but John Marshall said nothing at all about the specific provenance of the purchase. 11 American Insurance Co. v. Canter, 26 U.S. 511 (1828). 12 Robert A. Dahl, How Democratic Is the American Constitution? 2nd ed. (New Haven, Conn.: Yale University Press, 2001); Frances E. Lee and Bruce I. Oppenheimer, Sizing up the Senate: The Unequal Consequences of Equal Representation (Chicago: University of Chicago Press, 1999). 13 See, for instance, Reginald Horsman, Expansion and American Indian Policy, 1783—1812 (East Lansing: Michigan State Press, 1967); Roger G. Kennedy, Mr. Jefferson’s Lost Cause: Land, Farmers, Slavery, and the Louisiana Purchase (New York: Oxford University Press, 2003); Patricia Nelson Limerick, The Legacy of Conquest: The Unbroken Past of American West (New York: Norton, 1987); Gregory H. Nobles, American Frontiers: Cultural Encounters and Continental Conquest (New York: Hill and Wang, 1997).

1 The First “Incorporation” Debate Gary Lawson and Guy Seidman When an early twenty-first-century American constitutional lawyer thinks of “incorporation,” he or she probably thinks about the process by which the Supreme Court selectively applies provisions of the Bill of Rights to the states.1 When an early-twentieth-century constitutional lawyer thought of “incorporation,” he or she probably thought about the doctrine of the Insular Tariff Cases, under which the “incorporation” of territories into the United States determines the extent to which the Constitution applies of its own force to those territories.2 When an early-nineteenth-century constitutional lawyer thought of “incorporation,” he probably thought about Article III of the Louisiana Purchase treaty and the process by which inhabitants of foreign territory could be “incorporated” into the Union. The Louisiana Purchase treaty was signed in early May 1803, with signatures backdated to April 30, 1803 and ratifications formally exchanged on October 20, 1803. The treaty transferred to the United States enough territory to double the country’s land mass. Article III of the treaty provided: The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of the rights, advantages and immunities of citizens of the United States; and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.3 Apart from the broad question of the United States’ constitutional power to acquire the Louisiana Territory at all,4 this provision raised profound questions of treaty interpretation and constitutional law. It is not obvious, and it was not obvious to observers in 1803, what it

means to declare that Louisiana’s inhabitants “shall be incorporated” into the United States. And whatever the term “incorporated” meant in that context, it was unclear whether the president and the Senate, the federal treaty-making authorities,5 had the constitutional power to make any of the declarations or promises in Article III of the treaty. Congress, not the president and the Senate, is specifically granted constitutional authority to naturalize inhabitants,6 govern federal territory,7 and admit new states.8 Article III of the treaty potentially encroached on all of these congressional powers. Nineteenth-century lawyers found these questions of constitutional power more troubling than would a twenty-first-century lawyer. Modern law recognizes few, if any, limits on the federal treaty power. In 1803, however, the contours of the federal treaty power were still much in dispute, and Article III of the treaty appeared to be a good test of their limits. As advocates of a species—albeit an unconventional one—of constitutional originalism, we take the concerns of 1803 very seriously. We maintain that Article III was, upon careful analysis, wholly constitutional, but for reasons that would raise the eyebrows of many lawyers both in 1803 and in 2003. We interpret the language of Article III regarding the incorporation of Louisiana’s inhabitants to promise that the Louisiana Territory would be taken seriously as a candidate for statehood, though not actually to promise statehood at any time. Given that interpretation, all of Article III’s promises and declarations were constitutional because they simply wrote into the Louisiana Purchase treaty, and therefore made enforceable as a matter of international law, principles that, under our interpretation, already existed as a matter of domestic constitutional law. In order to reach this conclusion, or any conclusion, about the constitutionality of Article III, one needs a theory of the federal Treaty Clause. If, for instance, one thinks that the federal treaty power has few or no discernible limits, it is difficult to imagine how Article III could pose any interesting problems of constitutional power. We interpret the Treaty Clause of the U.S. Constitution, however, to authorize only treaty provisions that implement or effectuate the enumerated powers of other federal institutions, much as the Sweeping Clause of Article I of the Constitution authorizes only statutes that implement or effectuate other enumerated powers.9 That is a much narrower conception of the treaty power than modern law or scholarship recognizes, and if it is correct, the constitutionality of Article III is not so obvious. In Part I of this chapter, we sketch our “implementational” theory of the Treaty Clause, which was first advanced by Thomas Jefferson. This discussion is unavoidably truncated; a full version of the argument appears in a separate book and article.10 In brief: under our construction, the federal treaty power may only be used to carry into effect other granted federal powers, such as the power to admit new states. It does not constitute a free-standing grant of authority to the president and the Senate. In Part II, we present our interpretation of Article III of the Louisiana Purchase treaty and apply our understanding of the Constitution’s treaty power to its terms. We explain how Article III, by promising that Louisiana would be a candidate for statehood and by specifying that the rights of territorial inhabitants would be protected prior to statehood, provided no more and no less to the inhabitants of the Louisiana Territory than the Constitution itself demanded.

A brief note on methodology is necessary: our constitutional analysis is driven by a theory of originalism, in which the Constitution’s meaning reflects understandings at the time of its origin. Unlike many originalists, however, we do not ground meaning in historically concrete mental states, whether of some group of Framers, ratifiers, or the general public. Instead, meaning is the hypothetical understanding that the general public would have had after consideration of all relevant arguments and materials. Accordingly, we are less interested than are many other scholars in the constitutional views actually expressed or held by historical figures. The key interpretative materials for us are text, structure, and background principles. We certainly do not consider historical materials inadmissible, but their relevance for us is generally dwarfed by other evidence. Put as simply as possible, original meanings are not always coterminous with original understandings.

I. UNDERSTANDING THE TREATY POWER Article III of the Louisiana Purchase treaty only raises constitutional problems if there are meaningful limits on what federal treaties may accomplish. If there are any such limits recognized by modern law, they have yet to be clearly identified. The Supreme Court has never invalidated a treaty provision as unconstitutional. It has specifically held that treaties may regulate subjects that are beyond the enumerated powers of Congress,11 and it is routine for treaties to establish rules on subjects that are within Congress’s powers, such as tariffs, trade practices, and naturalization. Whatever Article III may have provided would easily pass muster under current law. We do not believe that current law concerning the treaty power accurately represents the Constitution’s original meaning. Accordingly, before we set out the meaning of Article III and the constitutional questions that it raises, we first establish that there can, in principle, be such questions to raise by elaborating the original meaning of the Treaty Clause.

The Jeffersonian Treaty Clause The Constitution states that the President of the United States shall have “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”12 The Treaty Clause has always been widely understood as a distinct grant of power to the president and the Senate that supplements and extends the Constitution’s other power grants, such as the grants of various legislative powers to Congress in Article I, Section 8. This view is clearly reflected in the Supreme Court’s landmark 1920 decision in Missouri v. Holland,13 which held that the president and the Senate could by treaty enact regulations of migratory birds that were beyond the legislative jurisdiction of Congress. Professor Gerald Neuman represents the current and historical consensus regarding the federal treaty power when he describes it as “an independent grant of power to the federal government to enter into treaties that enact rules that Congress might not otherwise have been able to enact.”14 Thomas Jefferson was an early dissenter from this interpretation of the Treaty Clause. Jefferson—alone, as far as we can tell, among prominent founding-era figures—viewed the federal treaty power as an implementational power that could only be used to effectuate other

granted powers rather than as an independent grant of lawmaking authority to the president and the Senate. Jefferson explained this position most clearly in notes from a 1793 cabinet conference in which members of the Washington administration discussed the forthcoming Neutrality Proclamation. Jefferson insisted “that in givg to the Prest & Senate a power to make treaties, the constn meant only to authorize them to carry into effect by way of treaty any powrs they might constitutionally exercise.”15 Jefferson explained further in an 1803 letter: [T]he Constitution] specifies & delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. Whatever of these enumerated objects is proper for a law, Congress may make the law; whatever is proper to be executed by way of a treaty, the President & Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence.16 Jefferson thus saw the Treaty Clause as an Article II counterpart to the Sweeping Clause of Article I, which gives Congress power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”17 Both clauses, for Jefferson, grant power to carry into effect other exercises of constitutional power but do not constitute free-standing grants of jurisdiction. On a Jeffersonian understanding, any treaty provision approved by the president and the Senate must implement or execute some other power granted by the Constitution. Jefferson was right about the Constitution’s original meaning. The federal Treaty Clause, properly construed, is a vehicle for carrying into effect otherwise granted federal powers. The president and the Senate may only enter into treaty provisions that, in the language of the Sweeping Clause, are “necessary and proper for carrying into Execution” other federal powers. This understanding of the Treaty Clause runs headlong into major roadblocks along every dimension of constitutional interpretation: textual, structural, intratextual, and historical. Textually, the language of the Treaty Clause is very stark and gives no hint of any such (or other) limitations. Structurally, the requirement of two-thirds approval by the Senate for treaties suggests that the Constitution has chosen a procedural rather than substantive mechanism for controlling the federal treaty power. Intratextually, the Article I Sweeping Clause, unlike the Article II Treaty Clause, expressly states that it only authorizes laws that are “necessary and proper for carrying into Execution” other federal powers, which demonstrates that the founding generation knew very well how to describe an implementational power if it wanted to create one. And historically, as we have noted, the Jeffersonian position has always been a minority viewpoint, including during Jefferson’s own time. In our book, entitled The Constitution of Empire, we address all of these concerns in a lengthy defense of a Jeffersonian, implementational interpretation of the Treaty Clause. In this chapter, we can only

sketch the broad outlines of that argument as it applies to the Louisiana Purchase.

Location, Location, Location A straightforward, cursory look at the text of the Treaty Clause is likely to yield two seemingly obvious propositions: that the Treaty Clause is a positive grant of power to the president and the Senate and that it contains no internal limitations on the scope of its granted authority. An informed eighteenth-century audience, after weighing all relevant considerations, would have rejected both of these seemingly obvious propositions as flatly wrong. Consider first the intuition that the Treaty Clause, which is phrased as a grant of power, must in fact be a grant of power. If the Treaty Clause appeared in Article I of the Constitution, there is little doubt that it would constitute an affirmative grant of power to both the president and the Senate. The Treaty Clause, however, appears in Article II. Enumerations of power in Article II do not serve the same constitutional function as do enumerations of power in Article I. This basic principle is the key to the meaning of the Treaty Clause. The first sentence of Article I states: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”18 This sentence does not grant any powers to Congress. Instead, it describes the institution—Congress—that must exercise whatever legislative powers are “herein granted” elsewhere in the Constitution. The Article I Vesting Clause designates the holder of certain powers conferred by the Constitution but it does not grant those powers. The Vesting Clauses that begin Article II and Article III are different.19 Article II begins by stating that “[t]he executive Power shall be vested in a President of the United States,”20 and Article III opens by declaring that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” 21 These clauses do not merely designate the holders of certain offices or powers; they affirmatively grant to the president and the federal courts, respectively, the “executive Power” and the “judicial Power.” That basic point has been demonstrated at length elsewhere,22 and we are content to rest our argument upon those demonstrations. In a portion of the Constitution, such as Article I, in which the Vesting Clause confers no power, the specific enumerations that follow the Vesting Clause clearly represent grants of power that define the powers “herein granted” that belong to Congress. Article I enumerations are grants of power. In portions of the Constitution such as Articles II and III in which the first sentence confers a general power, however, subsequent enumerations serve very different functions. The enumerations in Article III, for instance, are limitations on the scope of the general judicial power granted by the Article III Vesting Clause; that power “shall extend”23 only to designated categories of disputes. The federal courts do not draw power from the enumeration of heads of jurisdiction in Article III, Section 2. Their power stems from the Vesting Clause; Article III enumerations are limits on that power. The enumerations of presidential power in Sections 2 and 3 of Article II similarly do not

constitute sources of presidential power. The president’s basic power is the “executive Power” granted by the Vesting Clause. The subsequent enumerations in Article II clarify, qualify, and limit that basic grant of power, but they are not themselves grants of power. Some of those provisions, such as the Commander-in-Chief Clause,24 prohibit inferences that might otherwise be drawn. In the absence of the Commander-in-Chief Clause, Congress might try to argue, however implausibly, that its specific military powers (which do not include a power of troop direction), in conjunction with the Sweeping Clause, give it authority to direct troop movements. Similarly, the Opinions Clause25 forecloses any inference that Congress’s power to create executive offices under the Sweeping Clause also includes the power to require officers to answer directly to Congress rather than to the president. The Commander-in-Chief and Opinions Clauses clarify and confirm powers that the president possesses by virtue of the Vesting Clause; they do not grant powers that otherwise would not exist. Other provisions of Article II qualify or limit executive power, most notably with respect to the power to appoint officers of the United States26 and to convene or adjourn the legislature.27 Still others impose duties, such as the obligation to make reports on the state of the union28 and to “take Care that the Laws be faithfully executed.”29 The Treaty Clause appears in the middle of Article II. If it follows the general pattern of Article II enumerations, and there is no evident reason for an observer to suppose that it does not, then the Treaty Clause is not a grant of power to the president. It is a limitation, by way of requiring Senate consent, on a presidential power that is otherwise granted by the Article II Vesting Clause. In that respect, it grants power to the Senate that that body would not otherwise have, but it does not create a federal treaty power. Without the Treaty Clause, the president would have the sole power of making treaties as an aspect of the “executive Power.” This conclusion is not as straightforward as we have made it out to be, especially if one gives significant weight (as we do not) to actual historical understandings. The drafting history of the Treaty Clause does not reveal a conscious consensus to place the clause in the middle of Article II in order to cement its executive pedigree; the drafting process was considerably messier than that.30 Although the treaty power in the late eighteenth century “would historically have been understood as part of the executive power,”31 a number of prominent founding-era figures, including some prominent Framers, expressed the view that the treaty-making power was legislative, or at least was not clearly executive.32 More fundamentally, David Golove has forcefully argued that the eighteenth-century historical conception of treaty making as an executive function may have rested on a view of executive sovereignty that does not necessarily fit the American Constitution very well.33 Accordingly, a hypothetical, fully informed eighteenth-century audience may have been open to the possibility that the treatymaking power under the American system of government is better viewed as legislative rather than executive. But while these considerations might be enough to establish that a treaty clause located among legislative powers in Article I should not be regarded as executive, it is very hard to see how they permit a treaty clause located in the middle of Article II to be viewed by an

informed public as anything other than executive. As Professor John Norton Moore has elegantly put it, It is possible to debate theoretically whether the power to make treaties is primarily executive or legislative, as did Hamilton and Madison in the famous “Pacificus-Helvidius” exchange. Under the Constitution of the United States, however, there can be but one answer. For the treaty power is placed in Article II, under the Executive, with a check in the Senate. It was not placed in Article I, under the Legislative branch, with a check in the Executive. The starting point for analysis under the United States Constitution, then, is that the treaty power is primarily executive in its nature.34 Accordingly, one of the “obvious” insights that emerges from a cursory examination of the constitutional text—that the Treaty Clause is a grant of power to the president and the Senate— is false, at least as applied to the president. 35 The treaty power, as befitting its location in the middle of Article II of the Constitution, is an aspect of the “executive Power.”

Implementational Treaties The identification of the Treaty Clause as a clarification of and limitation on the executive power has important implications for the clause’s scope. It means, most fundamentally, that treaty provisions must execute, or carry into effect, other federal powers. Treaty provisions cannot function as free-standing exercises of lawmaking power. The essence of the executive power is the power to execute, or to carry into effect, the laws. This power is implementational; it requires for its operation laws that stem from sources of power other than the executive power. There is, of course, nothing in the text of the Article II Vesting Clause, or indeed in the text of the Constitution as a whole, that expressly states that the executive power is implementational, but no such provision was necessary. The very nature of the executive power, as it would have been understood by a fully informed, founding-era audience, marks it as implementational. It would have been redundant, and exceedingly odd, for Article II to say, “The executive Power to take all Actions which shall be necessary and proper for carrying into Execution the Laws of the United States shall be vested in a President of the United States.” That is what the “executive Power” means.36 It was, however, quite necessary to place the “necessary and proper for carrying into Execution” language in the Sweeping Clause in Article I, Section 8 if the goal was to limit that grant of power to the authorization of implementational laws. Legislative power, unlike executive power, is not implementational by nature. Express language is needed to make a legislative power merely implementational rather than jurisdiction-granting. No such language is needed to make an executive power implementational. But although the core of the executive power is implementational, there are elements of the

executive power that can affect private rights without implementing other sources of law. The war-making component of the executive power does not always require statutory authorization (though it does require statutes to appropriate the necessary funds), and the exercise of that power can clearly have an impact on private rights. The president’s ability to terminate treaties without congressional action can affect private rights implicated by those treaties. And the president’s power to govern occupied foreign territory during wartime is a legislative-like power that does not depend upon congressional statutes.37 The executive power thus has both implementational and jurisdiction-extending components. From which component does the Treaty Clause draw its guiding principles? The location of the Treaty Clause in Article II creates a strong presumption that the treaty power is implementational. The vast majority of executive powers are implementational; those that are not are strictly limited in scope and character. Intratextually, the absence of any express implementational language in the Treaty Clause analogous to that found in the Sweeping Clause is neither surprising nor significant; one should not expect to find executive powers accompanied by implementational language. Given the normal assumption that executive power is implementational, the Jeffersonian theory of the Treaty Clause has a plausible constitutional foundation. But there are forces at work in the other direction as well. Not all executive powers are implementational, so it is possible that the treaty power is best seen as jurisdiction-expanding in some sense. Indeed, the Supremacy Clause declares that treaties, along with the Constitution and statutes, are “the supreme Law of the Land.”38 Because treaties are law under the Constitution, the power to make treaties is indisputably a power to make law in some respect. Furthermore, all of the historical antecedents of the treaty power, in both English and preconstitutional American law, were jurisdiction-extending rather than implementational; a fully informed, founding-era audience would surely approach the inquiry with that knowledge in mind. The conventional interpretation of the Treaty Clause as an independent grant of lawmaking power to the president and the Senate has a plausible constitutional foundation. Nonetheless, there are sound structural reasons for favoring the Jeffersonian, implementational view of the treaty power. If one construes the Treaty Clause as a legislativelike grant of jurisdiction, the Constitution’s delicate allocation of powers starts unraveling very quickly. The nondelegation doctrine, for example, does not result from an express “nondelegation clause” but from the fact that the president and federal courts are only granted powers to interpret laws, not to make them, and Congress is not granted any general power to authorize other entities to make law.39 But if the Treaty Clause is a legislative-like provision with no “necessary and proper for carrying into Execution” proviso, then the president and two-thirds of the Senate could delegate legislative power. Similarly, under the original Constitution, Congress could not establish a religion in the states because it had no enumerated power to do so. But what about a treaty with Spain that established Catholicism as the national religion? If the Treaty Clause is a general grant of power with no “necessary and proper for carrying into Execution” proviso, there is nothing in the original Constitution that forbids this. Nor, for that matter, is there anything in the current Constitution that expressly forbids it. The

First Amendment says that “Congress shall make no law respecting an establishment of religion,” but the president and the Senate are not Congress. Furthermore, nothing in the Constitution expressly says that the federal government may not regulate marriage or tell a state where to locate its capital. It simply fails to grant any power to any federal actor that can encompass those subjects. But if the Treaty Clause is a general grant of legislative-like power, then presumably a treaty could accomplish such ends. None of these conclusions, of course, is impossible or unthinkable. But they are odd enough to give an eighteenth-century audience pause when deciding whether an implementational or jurisdiction-extending construction of the Treaty Clause makes the most sense given the language, context, and location of the Treaty Clause. The most telling argument against reading the Treaty Clause as a power grant, however, stems from a clause of the Constitution that is now legally irrelevant (and morally discomfiting) but which was critical to an eighteenth-century audience: the Slave Trade Clause. The first clause of Article I, Section 9 reads: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.40 By virtue of this clause, the slave trade was protected against congressional action for twenty years. That clause, in turn, was protected against constitutional amendment by a proviso in Article V that “no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article.” 41 By virtue of the Slave Trade Clause and the Article V proviso, the slave trade was shielded for the nation’s first twenty years against unanimous majorities in both houses of Congress plus the president and any combination of unanimous majorities in the House, the Senate, state legislatures, and state constitutional conventions. That is an impressive constitutional firewall. The provision in Article I, Section 9, however, only limits the power of “Congress.” The president and the Senate are not Congress. If the Treaty Clause is a jurisdictional power grant with no “necessary and proper for carrying into Execution” proviso, then the president and two-thirds of a quorum of the Senate in 1789 could have abolished the slave trade by treaty if only the thought had occurred to them. Again, none of these consequences is impossible (and not all of them are normatively undesirable). But collectively, they should be enough to raise questions in the mind of an eighteenth-century audience about whether the Treaty Clause is most plausibly read as a grant of power that stands outside the normal rules of Article II executive powers. A reading of the Treaty Clause as an implementational power not only makes more sense in light of the text and structure of Article II; it makes much more sense in light of the text and structure of the

Constitution as a whole. That an interpretation makes sense is not enough to justify it if the text, structure, and background assumptions of the document won’t sustain it, but it is a respectable tiebreaker if text, structure, and background assumptions are not conclusive. Of course, two sides can play at the same game. An implementational theory of the Treaty Clause generates its own set of problems that would have troubled a late eighteenth-century audience. For instance, some of the most important early treaty provisions dealt with the reciprocal rights of American and foreign citizens to own and dispose of real property in each other’s countries. 42 In order to be constitutionally valid under a Jeffersonian approach, such provisions would have to implement some federal power other than the treaty power. It is far from obvious what that power would be. An implementational view would also unsettle some likely expectations regarding treaties of commerce. A treaty, on Jefferson’s understanding, could implement congressional legislation regarding tariffs and trade practices by making domestic alteration of those statutes a violation of international law, but it could not of its own force impose tariffs or trade rules in the absence of statute. No doubt one could find other examples of widely accepted treaty provisions that Jefferson’s view would render problematic. But if one places those consequences alongside the potential for treaty-makers to establish religions, dictate the location of state capitals, or abolish the slave trade before 1808, the implementational view does far less damage to the constitutional structure than does the jurisdiction-extending view. In the end, we endorse the implementational view of the treaty power with about the same degree of confidence as did Jefferson himself. In his notes on the cabinet discussions of the Neutrality Proclamation, Jefferson compared his view of the treaty power to the more expansive positions taken by, inter alia, Alexander Hamilton and Edmund Randolph, thusly: “I was sensible of the weak points in this position, but there were still weaker in the other hypothesis.” 43

Reasonable Treaties One seemingly obvious textual proposition about the Treaty Clause—that it is an affirmative grant of power to the president and the Senate—is actually false; the Treaty Clause grants power to the Senate but limits the president’s executive power. The other proposition that emerges from a casual look at the clause’s text—that the treaty power has no internally imposed limitations—is also false. Just as the Treaty Clause’s Article II executive status pegs it as an implementational power, that status also subjects it to the principle of reasonableness. The principle of reasonableness is a bedrock principle of English law concerning delegated power to executive agents.44 The principle goes back at least to the sixteenth century45 and was made available to the founding generation through an acknowledgment of the principle by William Blackstone in his Commentaries on the Laws of England.46 The principle of reasonableness construes all delegations of implementational power to contain an implicit requirement that the means chosen by the agents for executing designated ends should be reasonably proportionate to the end sought, reasonably efficacious for achieving the desired end, and reasonably considerate of other background principles. In the language of the

American Constitution, it construes all delegations of discretionary implementing authority to contain a requirement that chosen means be “necessary and proper for carrying into Execution” the ends in question. As applied to the implementational treaty power, any treaty provisions must be “necessary and proper for carrying into Execution” an enumerated federal power. The absence of express “necessary and proper” language in the Treaty Clause does not count against this conclusion, just as the absence of such language in the Vesting Clauses of Articles II and III does not relieve the president or the federal courts from the strictures of the principle of reasonableness. The whole point of the principle of reasonableness is that a requirement of proportionality, efficacy, and substantive reasonableness is by nature part of a delegation of discretionary implementational power. It was far less clear in the eighteenth century, however, whether the principle of reasonableness applied to legislative power, even if that legislative power was delegated pursuant to a Constitution. Accordingly, if one wanted to subject implementational legislative power to the principle of reasonableness, express “necessary and proper” language was required. If the Treaty Clause was a legislative power located in Article I, it would not necessarily come with a principle of reasonableness attached to it. As an executive power in Article II, however, exercises of the Treaty Clause power must conform to the baseline rules of reason simply by virtue of their nature as implementational executive power. Thus, exercises of the treaty power must be “necessary and proper,” that is, must conform to the principle of reasonableness, and must be “for carrying into Execution” other federal powers, that is, must be implementational. The requirements imposed on implementational congressional legislation by the language of the Sweeping Clause are imposed on treaty provisions by the very nature of the Treaty Clause.

Implementing the Louisiana Purchase Treaty If the federal treaty power is purely an implementational power, then any provision to which the treaty-making authorities agree must reasonably carry into effect some enumerated federal power. In the case of the acquisition of the Louisiana Territory, the only plausible candidate for such a power is the admissions power, which provides that “[n]ew States may be admitted by the Congress into this Union.”47 The admissions power itself is essentially limitless. Notwithstanding early doubts, and a recent attempt to resuscitate those doubts,48 there is nothing in the Admissions Clause that limits its scope to territory possessed by the United States in 1789. Nor does the Admissions Clause mandate the admission of any particular territory as a state; it is worded as a discretionary grant of power to Congress.49 Any acquisition of territory therefore seems to carry the admissions power into effect by providing raw material on which Congress can exercise its discretion to admit or not. If that is the end of the story, there is nothing to talk about with respect to the Louisiana Purchase. But matters get more complicated once one adds the Treaty Clause to the mix. The Treaty

Clause does not appear to contain any internal limitations on its scope, but one must remember that the Treaty Clause is part of Article II and is therefore subject to the principle of reasonableness. In the context of territorial acquisitions, this means that acquisitions of territory by treaty must be proportionately, efficaciously, and, for want of a better term, reasonably linked to the admissions power (or whatever other powers the acquisition carries into effect). Operationally, acquired territory must therefore be at least a plausible candidate for statehood. If there is no reasonable likelihood that the acquired territory will ever become a state, then it would not be proportionate, efficacious, or substantively reasonable to acquire the territory for that purpose—especially territory that doubles the land mass of the United States. Ultimate statehood need not be a certainty; that is an impossible requirement given the discretionary character of the admissions power. But statehood must be a reasonable prospect to provide a constitutional foundation for the exercise of the treaty power to acquire territory. Some of the territory acquired in 1803 did not attain statehood for more than a century: Montana, North Dakota, and South Dakota became states in 1889, Wyoming was admitted in 1890, and Oklahoma joined the Union in 1907. Nonetheless, the Louisiana Purchase, as an exercise of the treaty power, satisfied the principle of reasonableness. No one doubted in 1803 that all of the acquired territory would eventually achieve statehood. The long delay was the result of low population densities; it is not surprising that populous states would not want to create two senators in territories with few inhabitants. But if the reasonableness of the acquisition must be judged by the perceived prospects for statehood at the time of the acquisition, there is no question that all of the land in the Louisiana Territory was a plausible candidate for ultimate statehood. Not all subsequent territorial acquisitions were such easy cases. When Alaska was acquired in 1868, it was far from obvious that it was a suitable candidate for statehood. More tellingly, when the Philippine Islands were acquired in 1898, the consensus was probably that they were not plausible candidates for statehood. Accordingly, we have grave doubts whether the acquisition of the Philippines was a constitutionally reasonable means for executing federal power. Thus, the constitutionality of the Louisiana Purchase was, in the end, a relatively easy case, but it was easy for reasons that render problematic some of the later actions of the U.S. government. If Article III merely promised that the Louisiana Territory would be a serious candidate for statehood, it passed constitutional muster. It was, however, far from obvious exactly what Article III promised. It declared that Louisiana’s inhabitants “shall be incorporated” into the United States without defining that term. And it promised far more than incorporation into the United States; it purported to guarantee that the inhabitants would be “maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.” Thus, an assessment of Article III’s constitutionality does not merely require a theory of the Treaty Clause. It also requires a theory of Article III.

II. UNDERSTANDING ARTICLE III Article III of the Louisiana Purchase treaty stated that “[t]he inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible,

according to the principles of the Federal Constitution, to the enjoyment of the rights, advantages and immunities of citizens of the United States.” If one reads this language as a promise of serious consideration for statehood, the provision is an excellent fit with the contours of the federal treaty power, which requires all acquisitions to be reasonably related to the execution of some federal power other than the treaty power. Article III, understood in these terms, made no promises that were not already constitutionally required simply by the fact of acquisition. Of course, that was not the universally understood meaning of Article III in 1803. Indeed, as far as we can tell, this specific understanding of Article III as a promise of serious candidacy for statehood was not advanced by anyone during the debates over implementing the treaty. We do not want to engage the question whether treaties should be interpreted differently from constitutions. Even if concrete understandings count for more in the interpretation of treaties than in the interpretation of constitutions, the best reading of Article III is still as a promise of consideration for statehood, though the path to that conclusion is quite bumpy. Some contemporary observers interpreted Article III’s language of incorporation actually to promise statehood. Senator Uriah Tracy of Connecticut, for instance, observed that “[t]he obvious meaning of this article is, that the inhabitants of Louisiana are incorporated, by it, into the Union, upon the same footing that the Territorial Governments [of the Northwest Territory] are, and, like them, the Territory, when the population is sufficiently numerous, must be admitted as a State.”50 This construction would, of course, raise grave constitutional questions about the ability of a treaty to promise something upon which only Congress could deliver; Congress, not the president and the Senate, is specifically given power to admit new states. It is not a plausible construction of Article III. Article III says nothing about admission as a state. It speaks of admission “to the enjoyment of the rights, advantages and immunities of citizens of the United States,” but promises only that such admission will take place “as soon as possible, according to the principles of the Federal Constitution.”51 If those principles require congressional action, then “as soon as possible” means “as soon as Congress acts, if it ever does.” The treaty thus promises, at most, only that the territory is an appropriate subject for congressional consideration for admission—which is precisely what the treaty power requires of an acquisition in the first instance. Other observers suggested, at least implicitly, that Article III merely added Louisiana to the United States as a territory. Senator Taylor, for instance, responded to Senator Tracy by stating that “the words [of Article III] are literally satisfied by incorporating them into the Union as a territory, and not as a State.”52 That is true, as we have just seen, but one still must give some meaning to the language in Article III concerning incorporation. If Article III meant only that the territory was made part of the United States, the language added nothing to the acquisition itself. It is, of course, possible that the reference to incorporation of Louisiana’s inhabitants was meaningless surplusage, but that is not a conclusion that one should reach lightly. Representative John Randolph of Virginia suggested that the promise of incorporation to the inhabitants of Louisiana was a “covenant to . . . extend to them, according to the principles of the Constitution, the rights and immunities of citizens, being those rights and immunities of jury

trial, liberty of conscience, &c.”53 The difficulty with this construction, of course, is that the phrase in Article III concerning rights and immunities is joined conjunctively to the phrase concerning incorporation: “The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of the rights, advantages and immunities of citizens of the United States.” The most natural reading of the Article is that incorporating inhabitants into the Union is something distinct from admitting them to the rights, advantages, and immunities of American citizens. The fact is that most contemporary observers had no clue what Article III meant by the phrase “incorporated in the Union of the United States.” The vast majority of participants in the congressional debates concerning the implementation of the treaty simply proceeded without ever defining the term “incorporated.” As Representative James Elliot of Vermont put it, the language in Article III concerning incorporation was “of a novel, singular, and curious nature.”54 Even if one believes that contemporary understandings determine the meaning of Article III, there was no such understanding that commanded a consensus of reasonable observers. The more important question is whether there is an understanding that could have commanded a consensus of hypothetical, fully informed observers. Our construction of Article III as codifying a promise of consideration for statehood best accounts for the language of the Article. It gives each piece of the Article an independent meaning. It conforms to the underlying constitutional principles concerning the acquisition of territory. It does not trench on any congressional powers. The biggest strike against this interpretation of Article III is that it is redundant, because the Constitution already required consideration for statehood as a condition of the acquisition. But that is not compelling for two reasons. First, there was, as we have noted, little or no consciousness in the early nineteenth century about the understanding of the treaty power that we set forth, so it is not surprising that such an understanding might not be reflected in actual language. Second, there is nothing startling about treaties expressing legal redundancies, because treaties have a different sphere of application than do other sources of law. The requirement of candidacy for statehood was, we argue, necessary in order to render the acquisition of Louisiana constitutional as a matter of domestic law, but a treaty provision was necessary to convert that domestic requirement into a norm binding as a matter of international law. The extension of domestic legal requirements into international law is one of the central functions of treaties. Accordingly, the best reading of Article III promises that Louisiana is a serious candidate for American statehood, which poses no constitutional difficulties. Indeed, the more difficult constitutional question concerns the clause that follows the provision concerning incorporation and admission to citizenship. Article III guaranteed to the inhabitants of Louisiana that, until they were admitted to citizenship in accordance with the Constitution (meaning in accordance with congressional action pursuant to the Citizenship Clause), “they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.” Did the treaty makers have the power to make this guarantee? After all, the Constitution gives Congress the power to govern federal territory

through the Territories Clause, which states that “[t]he Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”55 A guarantee of rights and liberties does not look like a means of executing federal power; it looks like a direct exercise of federal power that is constitutionally vested in Congress. Once again, however, Article III merely promised as a matter of intema-tional law what the Constitution already required as a matter of domestic law. Constitutional provisions, including the provisions of the Bill of Rights protecting liberty, property, and religion, apply to territorial inhabitants of their own force. Article III simply made those already-existing domestic constitutional protections part of the treaty. The Article did not infringe on the power of Congress to govern territories because Congress had no power in 1803 to deny territorial inhabitants background rights of liberty, property, and religion. That conclusion, of course, does not flow as readily from modern constitutional doctrine as it does from our analysis. Modern doctrine stems from a series of cases, known collectively as the Insular Cases, decided during the first quarter of the twentieth century concerning the status of territories that were not part of the continental United States.56 Those cases held that all provisions of the Constitution apply of their own force to territory that is “incorporated” into the United States but that only “fundamental” provisions apply of their own force to unincorporated territories.57 Those cases do not necessarily use the word “incorporated” in the same sense—whatever that may have been—in which it was used in Article III of the Louisiana Purchase. And they do not use the word “fundamental” in the sense in which it is normally used in the modern “incorporation” doctrine concerning application of Bill of Rights provisions to the states: the paradigm example of a right that is not “fundamental” for territorial purposes is the right to jury trial,58 which is certainly “fundamental” for purposes of Fourteenth Amendment doctrine. Under this doctrine, it is likely that the Constitution applied of its own force to Louisiana. The essence of “incorporation” under the doctrine of the Insular Cases is probably something fairly close to our interpretation of Article III of the Louisiana Treaty: we interpret Article III (and the Treaty Clause) as requiring that the acquired territory be a plausible candidate for statehood, while the doctrine of the Insular Cases may require a more certain prospect of statehood before it considers a territory incorporated.59 If the whole Louisiana Territory was generally seen as destined for statehood, Louisiana would have been “incorporated” for purposes of the Insular Cases, and the language in Article III concerning liberty, property, and religion made enforceable by treaty what was already enforceable by the Constitution. We are disinclined to pursue this line of reasoning, however, because the doctrine of the Insular Cases simply makes no sense. The idea that some parts of the Constitution do not apply to some federal territories is not something that emerges from a careful inspection of the document or a consideration of how the document would have appeared to a fully informed, eighteenth-century audience. It was transparently a policy-driven doctrine designed to facilitate the governance of noncontiguous island territories populated by, in the language of the leading decision from 1901, “alien races, differing from us in religion, customs, laws, methods of

taxation and modes of thought.”60 Whether or not the Constitution “follows the flag,” as the saying goes, the Constitution definitely follows the government that it creates and empowers. Article III therefore merely acknowledged the rights that the territorial inhabitants possessed by virtue of their status as territorial subjects of the United States. Article III of the treaty therefore makes perfect constitutional sense. It memorializes, as part of the agreement between nations, the domestic constitutional rules that, of their own force, applied to the acquisition of the territory and the subsequent governance of the acquired population. That may not be how the audience of 200 years ago actually thought about their Constitution and treaty. But it is how they would have thought about them if they had read our chapter and book.

NOTES 1 Nonconstitutional lawyers, of course, may well think instead about capital structures and limited liability. 2 See note 56. 3 Treaty Between the United States of America and the French Republic, Apr. 30, 1803, art. III, 8 Stat. 200, 202 [hereinafter “Louisiana Treaty” or “Louisiana Purchase Treaty”]. 4 Thomas Jefferson’s (equivocal) doubts about the United States’ power to acquire foreign territory without a constitutional amendment are well known. See Everett S. Brown, The Constitutional History of the Louisiana Purchase (Berkeley: University of California Press, 1920), 17—29 (detailing Jefferson’s shifting positions). Other people in 1803 doubted whether territory could be acquired without the unanimous consent of the states. See, for example, 8 Annals of Cong. 56, 462 (1803) (statements of Sen. Uriah Tracy of Connecticut and Rep. Roger Griswold of Connecticut). A recent article seeks to resuscitate some of those federalism-based doubts. See Robert Knowles, “The Balance of Forces and the Empire of Liberty: States’ Rights and the Louisiana Purchase,” 88 Iowa Law Review 343 (2003). We do not find those doubts persuasive, for reasons that we have detailed elsewhere. See Gary Lawson and Guy Seidman, The Constitution of Empire: Territorial Expansion and American Legal History (New Haven: Yale University Press, 2004). We are less confident, however, that all subsequent American acquisitions can be as easily justified. In particular, we have grave doubts about the United States’ constitutional power to acquire the Philippine Islands in 1898 after the Spanish-American War. See ibid. 5 U.S. Const. art. II, § 2, cl. 2 (the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur”). 6 Ibid., art. I, § 8, cl. 4 (“The Congress shall have Power. . . [t]o establish an uniform Rule of Naturalization”). 7 Ibid., art. IV, § 3, cl. 2 (“The Congress shall have Power to dispose of and make all needful

Rules and Regulations respecting the Territory or other Property belonging to the United States”). 8 Ibid., art. IV, § 3, cl. 1 (“New States may be admitted by the Congress into this Union”). Of course, there has been substantial debate over the course of the nation’s history concerning whether the Admissions Clause and the Territories Clause apply to territory that was not part of the original United States. Levi Lincoln and Gouverneur Morris, for instance, both doubted whether territory that was not part of the original United States could ever be admitted as a state. See Letter from Levi Lincoln to Thomas Jefferson, January 10, 1803, reprinted in Brown, The Constitutional History of the Louisiana Purchase, 19; Letter from Gouverneur Morris to Henry W. Livingston, December 4, 1803, reprinted in 5 vols., The Founders’ Constitution, Philip B. Kurland and Ralph Lerner eds., 4:548 (Chicago: University of Chicago Press, 1987). The view that the Territories Clause does not apply to after-acquired property is most famously identified with Chief Justice Taney in Scott v. Sandford, 60 U.S. (19 How.) 393, 432 —42 (1857), though ambivalence about the reach of the Territories Clause goes back at least to Chief Justice Marshall in Seré v. Pitot, 10 U.S. (6 Cranch) 332, 336-37 (1810) (refusing to ground the constitutional power to govern the Louisiana Territory squarely in the Territories Clause). The interpretative debate concerning the reach of these clauses, however, is considerably more one-sided than is the historical debate. The Territories Clause cannot plausibly be limited to original territory because that clause also contains the power to regulate personal property held by the United States, which surely includes guns, wagons, and paper clips acquired after 1787. See Letter from Albert Gallatin to Thomas Jefferson, January 1803, reprinted in Brown, The Constitutional History of the Louisiana Purchase, 21. And if there is no such limitation in the Territories Clause, it is very hard to read one into the Admissions Clause. 9 U.S. Const. art. I, § 8, cl. 18 (“The Congress shall have Power . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”). Although moderns tend to call this clause the “Necessary and Proper Clause,” the founding generation—Federalists and Antifederalists alike—uniformly called it the “Sweeping Clause.” See Gary Lawson and Patricia B. Granger, “The ‘Proper’ Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause,” 43 Duke Law Journal 267, 270 and n.10 (1993). If it was good enough for them, it’s good enough for us. Substantively, the Sweeping Clause only authorizes statutes “for carrying into Execution” other federal powers; we maintain that the same requirement is implicit in the Treaty Clause. 10 See Lawson and Seidman, The Constitution of Empire, at 32—72; Gary Lawson and Guy Seidman, “The Jeffersonian Treaty Clause,” 2006 University of Illinois Law Review (forthcoming). 11 See Missouri v. Holland, 252 U.S. 416 (1920) (holding that a treaty may regulate, and thereby authorize Congress to regulate, migratory birds that are beyond the jurisdiction of Congress’s Article I powers in the absence of a treaty).

12 U.S. Const. art. II, § 2, cl. 2. 13 252 U.S. 416 (1920). 14 Gerald L. Neuman, “The Nationalization of Civil Liberties,” 99 Columbia Law Review 1630, 1646—47 (1999). For a comprehensive and sophisticated elaboration of this conception of the treaty power, see David M. Golove, “Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power,” 98 Michigan Law Review 1075 (2000). 15 Andrew A. Lipscomb and Albert Ellery Bergh, eds. The Writings of Thomas Jefferson 20 vols. (Washington, D.C.: Issued under the auspices of the Thomas Jefferson Memorial Association of the United States, 1903—1904), 1:329. 16 Letter from Thomas Jefferson to Wilson Cary Nicholas, September 7, 1803, in 8 The Writings of Thomas Jefferson 247n1 (Paul Leicester Ford ed. 1904). Certain governmental functions can only be “executed by way of a treaty.” Suppose that the United States and France want to create a regime of reciprocal free trade in wines. Each country can impose that regime by ordinary legislation. But that legislation can be repealed at any time. Such repeal might have serious diplomatic consequences, and might even lead to war, but it would not violate any rule of international law. A treaty can “lock in” international agreements by making their alteration a violation of international law. Thus, a treaty adds an element to a statutory regime that ordinary legislation, which has no power to bind foreign sovereigns or future congresses, cannot provide. A treaty does not literally prevent Congress from enacting or repealing legislation in violation of the treaty—the subsequent congressional enactment will be entirely valid as a matter of domestic law—but it raises the cost of such action by whatever degree a violation of international law is considered or expected to entail. 17 U.S. Const. art. I, § 8, cl. 18. 18 Ibid., art. I, § 1. 19 See Steven G. Calabresi and Kevin H. Rhodes, “The Structural Constitution: Unitary Executive, Plural Judiciary,” 105 Harvard Law Review 1153 (1992). 20 U.S. Const. art. II, § 1, cl. 1. 21 Ibid., art. III, § 1. 22 See Steven G. Calabresi, “The Vesting Clauses as Power Grants,” 88 Northwestern University Law Review 1377 (1994); Steven G. Calabresi and Saikrishna B. Prakash, “The President’s Power to Execute the Laws,” 104 Yale Law Journal 541, 570-79 (1994); Lawson and Seidman, “The Jeffersonian Treaty Clause.”

23 U.S. Const. art. III, § 2, cl. 1. 24 Ibid., art. II, § 2, cl. 1 (“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”). 25 Ibid., art. II, § 2, cl. 1 (“he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices”). 26 Ibid., art. II, § 2, cl. 2. 27 Ibid., art. II, § 3. 28 Ibid. 29 Ibid. 30 The classic study of the drafting of the Treaty Clause, which emphasizes that the participants in the Constitutional Convention probably did not intend for the clause’s placement in Article II to settle this issue, is Jack N. Rakove, “Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study,” 1 Perspectives in American History 233 (1984). Such evidence of drafting intentions is relevant to an inquiry into original understanding, but is considerably less relevant to an inquiry into original meaning that focuses on the perceptions (whether actual or hypothetical) of the public to whom the Constitution is addressed. 31 See Saikrishna B. Prakash and Michael D. Ramsey, “The Executive Power over Foreign Affairs,” 111 Yale Law Journal 231, 292 (2000) 32 See David M. Golove, “Against Free-Form Formalism,” 73 New York University Law Review 1791, 1873—75 (1998) (noting that James Madison, George Mason, and James Wilson at the Constitutional Convention viewed the treaty power as legislative in character and that Alexander Hamilton took conflicting positions at different times). 33 See ibid., at 1873—74. 34 John Norton Moore, “Treaty Interpretation, the Constitution, and the Rule of Law,” 42 Vanderbilt Journal of International Law 163, 192 (2001). 35 The Senate does gain power from the Treaty Clause via the requirement of its “Advice and Consent” and two-thirds approval for the making of treaties. Whether this power is purely a negative power of disapproval or a stronger power to participate in the shaping of treaties is an interesting question that we do not address. For an illuminating exploration, see Rakove, “Solving a Constitutional Puzzle.” For whatever this may be worth to the debate: it seems very difficult to read a provision calling for “Advice and Consent” as requiring only consent

without advice. 36 See Saikrishna B. Prakash, “The Essential Meaning of Executive Power,” 2003. University of Illinois Law Review 701 (Summer 2003). 37 For a discussion of the nature of, and oft-ignored limits on, that power, see Gary Lawson and Guy Seidman, “The Hobbesian Constitution: Governing without Authority,” 95 Northwestern University Law Review 581 (2001). 38 U.S. Const. art. VI, cl. 2. 39 See Gary Lawson, “Delegation and Original Meaning,” 88 Virginia Law Review 327, 345 —55 (2002). 40 U.S. Const. art. I, § 9, cl. 1. 41 Ibid., art. V. The “fourth Clause” in Article I, section 9 was a limitation on direct taxes. See ibid., art. I, § 9, cl. 4 (“No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken”). 42 For an extended discussion of this issue in the context of the Jay Treaty, see Golove, “Treaty-Making and the Nation,” 1157—93. 43 Lipscomb and Bergh, eds. The Writings of Thomas Jefferson, 1:329. 44 See H. W. R. Wade and C. F. Forsyth, Administrative Law, 8th ed. (Oxford: Oxford University Press, 2000), 353. 45 5 Co. Rep. 99b (1598). 46 3 William Blackstone, Commentaries on the Laws of England, 74. 47 U.S. Const. art. IV, § 2, cl. 1. Other clauses, such as the Navy Clause, may have justified smaller acquisitions (such as the Port of New Orleans), but nothing other than the admissions power could justify an acquisition of territory running from the Gulf of Mexico to Canada. See Lawson and Seidman, The Constitution of Empire. 48 Knowles, “The Balance of Forces and the Empire of Liberty.” 49 Congress was obliged to convert the Northwest Territory into states because the provision in the Northwest Ordinance requiring admission, Northwest Ordinance of 1797, art. V, 1 Stat. 51, 53, was made enforceable by the Engagements Clause. U.S. Const. art. VI, cl. 1 (“All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation”).

50 8 Annals of Cong. 54 (1803) (statement of Sen. Tracy). Cf. ibid., 450 (statement of Rep. Elliot) (implying that Congress must admit the acquired territory as states at some indeterminate future time). 51 Some defenders of the treaty noted this construction. See ibid., 457 (statement of Rep. Smilie). 52 Ibid., 51 (statement of Sen. Taylor). 53 Ibid., 487 (statement of Rep. Randolph). 54 Ibid., 450 (statement of Rep. Elliot). 55 U.S. Const. art. IV, § 3, cl. 2. 56 For a brief discussion of the Insular Cases, see Lawson and Seidman, The Constitution of Empire, 194—97. For a perceptive assessment of their significance, see Sanford Levinson, “Why the Canon Should Be Expanded to Include the Insular Cases and the Saga of American Expansionism,” 17 Constitutional Commentary 241 (2000). 57 See Balzac v. Porto Rico, 258 U.S. 312—13 (1922). 58 Ibid., 310. 59 See United States v. Verdugo-Urquidez, 494 U.S. 259, 268 (1990) (describing unincorporated territories as possessions “not clearly destined for statehood”); GranvilleSmith v. Granville-Smith, 349 U.S. 1, 5 (1955) (referring to unincorporated territories as “possessions of the United States not thought of as future States”). 60 Downes v. Bidwell, 182 U.S. 244, 287 (1901).

2 “The Strongest Government on Earth”: Jefferson’s Republicanism, the Expansion of the Union, and the New Nation’s Destiny Peter S. Onuf Thomas Jefferson envisioned the expansion of the United States across the continent long before the Franco-American diplomatic crisis over the navigation of the Mississippi in 1802— 1803 led to the Louisiana Purchase. Napoleon’s sudden decision to offer American negotiators the vast trans-Mississippi domain that Spain recently had retroceded to France came as a surprise to Jefferson: James Monroe and Robert R. Livingston were supposed to purchase New Orleans and, if possible, territory along the coastline of the Gulf of Mexico, in Spanish West Florida, that the administration thought (or, at least, claimed) constituted part of the Louisiana Territory. Frustrated to the east, where the Territory’s boundaries would remain controversial for many years, Jefferson and his countrymen now looked westward to an immense wilderness empire, lightly settled beyond the Mississippi shore and barely known to European traders beyond the lower stretches of the Missouri River. The dimensions of this new empire were mind-boggling, even to Jefferson, the visionary expansionist: he expected the expansion of the Union to be gradual, following—not anticipating—the progressive extension of the frontier of settlement to the west. But Jefferson was better prepared than any other leading statesman of his day to adjust his sights to the republic’s radically new circumstances and to incorporate Louisiana into his vision of America’s future. Revisionists may be right to discount Jefferson’s role in the purchase— Napoleon’s decision to sell was of course most crucial—and to emphasize Jefferson’s supposed hypocrisy in suppressing his constitutional scruples about adding new territory to the Union. They fail, however, to appreciate the significance of Jeffersonian geopolitics in shaping the subsequent history of the Union and making the new nation’s expansionist destiny seem natural and inevitable.1 The peaceful resolution of the Louisiana crisis was enthusiastically celebrated across the country. Americans had avoided war with the greatest military power on earth, a war they were ill-prepared to fight and might very well have lost. Yet the fruits of this unexpected

diplomatic triumph raised a new set of troubling questions for the new nation’s future.2 Clearly the United States already had an extraordinary land surplus: would it be possible to curb settlement from spreading too rapidly, thus unleashing centrifugal forces that would weaken, even destroy, the Union? Would the rapid dispersal of an already widely dispersed population lead to the depopulation and impoverishment of the old states, subverting prospects for the development of domestic manufacturers and a balanced, interdependent national economy that many Federalists believed critical to securing American independence? A history of separatist activity, challenges to federal authority, and disunionist plots suggested to many observers that the republic was already overextended. Would elimination of the French menace—the greatest external threat to the Union since ratification of the Constitution—only exacerbate internal challenges to the Union’s survival? For Jefferson and his followers there was another, more fundamental ideological obstacle to expansionism: the conventional wisdom, most influentially articulated by Charles de Secondat, Baron de Montesquieu, that the progressive extension of a regime across space inexorably led to the consolidation of power.3 If the best political science of the day taught that republics must be small and empires despotic, how could the republican form of government be made compatible with a union of imperial dimensions? Was the notion of a “republican empire”—or what Jefferson called “an empire for liberty”—a logical absurdity? The conventional response to these questions is that Jefferson’s friend and ally James Madison had already demolished Montesquieu’s authority on the size question in his tenth Federalist paper. Emphasizing the volatility and vulnerability to factiousness of the small republics or “democracies” of the ancient world, Madison argued that “extending the sphere”—enlarging the republic—would mitigate and contain the effects of faction and was the only possible alternative to the republican spirit, the virtuous dedication to the common good that Montesquieu prescribed.4 Obsessed with the balance of conflicting forces, Madison’s political architecture sought to escape history through mechanical contrivances. His extended republic would be neither too small nor too large, but rather would be limited to the “practicable sphere” within which the representative principle could effectively operate.5 Of course, the size of the original union proposed by the Constitution was “practicable”; and, given the expectation that new states would be carved out of the original national domain, Madison probably thought representation would also be practicable in a still larger union (presumably distances from west to east could match those from the union’s southern and northern extremities). But if Madison’s “practicable sphere” meant anything, it could not possibly encompass the vast Louisiana Territory. Jefferson’s answer to the problem of size proceeded from radically different premises. Where Madison, following Montesquieu, constructed complex machinery to sustain a modicum of virtue against the ravages of time, Jefferson’s vision was dynamic, progressive, and expansive. For Jefferson, unlike Madison, the extended republic did not achieve static equipoise through the interplay of conflicting, necessarily partial or “factious,” interests; instead, an expanding union offered the domain within which an enterprising people would fulfill its national destiny.6

My goal in this chapter is to explain how Jefferson’s expansive conception of American nationhood enabled him to resolve Montesquieu’s size problem. The key themes in Jefferson’s thinking were most eloquently set forth in his First Inaugural Address of March 4, 1801, but its underlying logic was most fully elaborated in an exchange with the distinguished French “ideologist” Antoine Claude Destutt de Tracy shortly after Jefferson’s retirement in 1809. In the Louisiana Crisis, the expansive American nation that Jefferson projected into a benign future had been threatened by the presence of France, another expansive revolutionary nation. Destutt, a leading theoretician of the postrevolutionary French regime, helped Jefferson understand what the two “sister republics” had in common and therefore why France was such a threat; Jefferson returned the favor, explaining to Destutt how the centralization of power in France compromised republican liberty. The crucial difference between these two great nations was geopolitical: France faced an array of powerful enemies in Europe, determined to reverse the outcome of its revolution; by contrast, the United States would face no serious obstacle to its peaceful expansion across the continent—now that the French threat had disappeared. Destutt and Jefferson agreed that Montesquieu did not anticipate the new order of things in the world that the American and French revolutions created. Modern nations would fulfill their destinies as “representative democracies” or republics, expanding to their natural limits—or to the limits that a competitive international system permitted. The nation grew as market relations were extended and a progressively elaborate division of labor promoted its prosperity and power. Bigger was better: Montesquieu was simply wrong.

JEFFERSON, DESTUTT, AND MONTESQUIEU Jefferson’s First Inaugural Address was a bold refutation of Montesquieu’s influential axiom that “it is in the nature of a republic to have only a small territory; otherwise it can scarcely continue to subsist.”7 To the contrary, the third president insisted, the new nation’s republican regime would flourish precisely because of its continental dimensions. “Possessing a chosen country, with room enough for our descendants to the thousandth and thousandth generation,” Americans would enjoy the fruits of independence as long we “pursue our own federal and republican principles, our attachment to union and representative government.” Expansion was crucial both to the new nation’s progress and, ultimately, to the “happiness” of mankind generally. In the Declaration of Independence, Jefferson had proclaimed that the “pursuit of happiness” was one of man’s “inalienable rights”; in his Inaugural, he exulted in the “dispensations” of an “overruling Providence” that so manifestly favored the American people, delighting “in the happiness of man here and his greater happiness hereafter.”8 Jefferson’s apotheosis of the large—and expanding—republic is remarkable in many ways. His stunning claim that “this . . . is the strongest Government on earth” was belied by the circumstances of his own election, a vicious partisan contest with ominous sectional overtones that had resulted in electoral impasse and constitutional crisis.9 Tottering on the precipice of disunion with a weak, overstretched federal establishment, the United States was certainly not “strong” in any conventional sense. As the author of the Kentucky Resolutions of 1798 that (in his original draft) had broached state “nullification” of federal law and threatened that “these

States” might ultimately be driven to “revolution and blood” by the administration’s violations of the Constitution, Jefferson well understood that the distribution of authority in the union could hardly guarantee the new nation’s survival, much less its future greatness and power.10 Certainly Jefferson knew that his claims in the Inaugural stood in stark counterpoint to—if they were not utterly negated by—recent history. How could he be so confident then that America’s future development would refute Montesquieu’s powerful logic? Though he shared the antipartisan prejudices of his age, Jefferson welcomed the ascendancy of his own Republican Party in 1801 as the harbinger of a new epoch when the American people would “unite with one heart and one mind,” flying “to the standard of law” whenever the nation was threatened.11 In other words, Jefferson envisioned the triumph of virtue, not the Madisonian balance or reconciliation of interests. Yet this was not the self-denying virtue of the ancients that Montesquieu invoked.12 It was instead the patriotism of an enlightened people, looking to the future, not the past, and understanding that “this Government” is “the world’s best hope.” The new nation would achieve stability, peace, and prosperity as it fulfilled its destiny—the design of “an overruling Providence”—through history, providing space “for our descendants” to the end of time. Jefferson’s rhetoric now seems so exaggerated and hyperbolic, so much a template for the patriotic effusions of succeeding generations, that it is hard to take seriously as political thought. These were not the sentiments of a single extraordinary moment, however, but rather the result of continuing reflection on the problem Montesquieu had posed. Montesquieu had raised two, related questions: the first concerning the character of a people in relation to its political regime; the second about the appropriate extent of territory for each kind of government. As incoming president in 1801, Jefferson asserted that the success of the republican experiment launched by the American Revolution constituted a practical refutation of Montesquieu’s small republic thesis. When Destutt sent a copy of his Commentary and Review of Montesquieu’s Spirit of the Laws to Jefferson in 1809, the recently retired president seized the opportunity to engage with Montesquieu’s argument—and with Destutt’s rejoinder— in a systematic way.13 Jefferson told Destutt that his Commentary was “the most precious gift the present age has received,” and hoped that it would become “the political rediment of the young, and manual of our older citizens.”14 Jefferson had long been troubled by Montesquieu’s “paradoxes” and “heresies”; as early as 1795 he had predicted that Montesquieu’s “doctrine, that small States alone are fitted to be republics” would “be exploded by experience.”15 Jefferson complained that Montesquieu’s work, despite its many merits, was conceptually incoherent, riddled with “paradox . . . , false principle and misapplied fact.” Most troubling was the great philosophe’s apparent relativism. His typology of regimes showed how each of the classic triad of republic, aristocracy, and monarchy could be best sustained by its corresponding “spirit” or ethos— virtue, honor, and fear—and was best suited to countries of differing extent, from small to large. This meant that republicanism was only one form of government among many, that it was only preferable under specific conditions—conditions that did not and could not exist in the great nations of the modern world.16 Jefferson and Destutt were impatient with Montesquieu’s

Anglophilia as well as with his comparative approach. In the wake of the American and French revolutions, Britain looked more like the last redoubt of a corrupt and irredeemable old regime than as a model for the future. British constitutionalism, as Thomas Paine had suggested, was an anachronistic compound of regime types that had outlived their time, not an enduring balance of principles, orders, and interests.17 Destutt earned Jefferson’s applause because he cut through Montesquieu’s categories, collapsing all regimes into two fundamental “classes”: “one of these I denominate national, in which social rights are common to all; the other special, establishing or recognizing particular or unequal rights.” “Monarchy” signified the exercise of executive authority by a “single person,” and was thus compatible with a “republican” government, such as that of the United States—or even Napoleon’s France—provided it was properly “national,” that is, founded on “the principle, that all rights and power originate in, reside in, and belong to, the entire body of the people or nation; and that none exists, but what is derived from, and exercised for the nation.”18 “Special” was synonymous with “imperfect” or “defective,” as when a monarch exercised rule over the people solely for his own benefit. A more complicated regime such as Britain’s, where “different powers or sovereignties exercised in the same society” entered into “formal or tacit stipulations, which cannot be changed without the mutual consent of all the contracting parties,” gave the appearance of being “national,” but were in fact “special.”19 Such a regime could be described as an institutionalized state of war, in which the people—in Britain, the commons—were simply one of many powers. “This balancing is not securing peace,” Destutt concluded, “it is declaring war”: the “pretension to a power independent of the people at large, and capable of contending against the people, is the cause of that constant warfare which is every where seen between the rich and the poor.”20 Destutt’s analysis was appealing to Jefferson because its hostility to British-style mixed and balanced government resonated with Jefferson’s own Anglophobic bias. More significantly, Destutt’s conception of the “nation” obliterated the distinctions within society—and the economy—that Jefferson identified with the old regime. Republican revolutions spurred the movement from “special” to “national” regimes that marked the progress of political civilization. The conventional wisdom of the old regime, epitomized in Montesquieu’s Spirit of the Laws, was no longer relevant under the new dispensation: constitutional forms now were properly seen as epiphenomenal, no longer representing and sustaining the balance of conflicting social orders. Indeed, the moderns’ great discovery of representation made it possible to eschew crude proxies for the “people” and for particular privileged classes that were embodied in the branches of government in a mixed regime. “Representation, or representative government, may be considered as a new invention, unknown in Montesquieu’s time,” Destutt wrote. Representation enabled a “special” regime to become “national”: under its aegis, a “simple democracy”—an ephemeral form of government characteristic of “hordes of savages” in “the infancy of a state”—could escape the inevitable cycle of classical politics, in which democracy degenerating into “anarchy . . . brings on aristocracy or tyranny.” Representative democracy “is democracy rendered practicable for a long time and over a great extent of territory.” “Simple democracy,” Destutt concluded, “is the true state of nature; representative democracy is that of nature, in a perfect state.”21

Montesquieu’s small republic was a “simple democracy” suitable for savages and irrelevant to the modern world. The heroic “virtue” of the ancients—their “gloomy enthusiasm” for “voluntary privations” and “self-denials”— reflected the savage impulses that primitive communities had to suppress, or at least contain, in order to survive. By “exciting men to hardihood and devotedness,” classical virtue “renders them at the same time malignant, austere, ferocious, sanguinary, and above all unhappy.”22 Like Destutt, Jefferson embraced a conception of virtue more suitable for an enlightened and improving modern age, in accord— not at war—with the progressive fulfillment of man’s true nature.23 In a representative democracy, Destutt wrote, there was no “need [for] the constraint of the human mind, the modification of our natural sentiments, the forcing of our desires, nor the excitement of imaginary passions, rival interests, or seductive illusions; it should, on the contrary, allow a free course to all inclinations which are not depraved, and to every kind of industry which is not incompatible with good order and morals: being conformable to nature, it requires only to be left to act.”24 In short, “man” as such, not man as adapted to the peculiar requirements of a “special” regime that distorted his nature, was the ultimate product of representative democracy, the end point of the progress of political civilization. In a similar vein, Jefferson and his fellow revolutionaries proclaimed their own “attachment to the general rights of mankind,” insisting that their republican experiment initiated a new epoch in world history.25 They were, like Destutt, “nationalists” who cherished the principle of popular self-rule, but they were also cosmopolitans. If republicanism enabled the peoples of the world to govern themselves and claim the “separate & equal station to which the laws of nature and of nature’s God entitle them,” it also brought them together, progressively merging them into the universal society of mankind. In the fullness of time, Montesquieu’s taxonomy of regime types and distinctive national characters would thus be rendered obsolete.26 The conventional view is that the modern conception of virtue and citizenship was a pale, increasingly attenuated reflection of the ancients’ more robust and “spirited” original. But the Enlightenment views of Jefferson and Destutt betrayed no nostalgia for better days: the “citizen,” with his parochial attachments and blind prejudices was superseded by the modern “man,” with his “love of order, of industry, of justice, and reason.”27 Modern man would, in turn, make the best possible citizen of the most enlightened form of government, Destutt’s “representative democracy” or Jefferson’s federal republic. Montesquieu’s critical commentators adapted his idea that the ethos of a people should be fitted to the character of the regime to their conception of the progress of civilization. The “principle of preservation” in a representative democracy, Destutt wrote, was “love of country, and equality of rights”—his “national” principle—“and, if you will, the love of peace and justice.” This was just the sort of patriotism Jefferson extolled in his First Inaugural. The Americans’ republican government was “the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern”; because it put all citizens on an equal plane and so transcended the internal conflicts and resistance—the socalled balance—of even the best-constituted governments of the old regime, it would be able to mobilize unprecedented power and so prove itself “the strongest Government on earth.”28 Destutt’s embrace of modern commercial society epitomizes, even caricatures, progressive

Enlightenment thinking.29 Commerce was not antithetical to virtue, as the ancients and their modern admirers claimed, but was instead “not only the foundation and basis of society, but . . . the fabric itself; for society is nothing more than a continual exchange of mutual succours, which occasion the concurrence of the powers of all for the more effectual gratification of the wants of each.”30 Following Adam Smith’s lead, Destutt emphasized the importance of the home market, rejecting the traditional mercantilist obsession with foreign commerce as a barely sublimated form of political conflict among the great trading powers, in which the “interest” of nations supposedly “consisted in beggaring all their neighbours.”31 Reversing priorities, the classical economists invoked reciprocally beneficial exchange in the home market—liberated from the distorting influence of corporate privilege and mercantilist regulation—as the template for a free trade regime for the world as a whole. Foreign trade was useful when “it enlarges the extent of the market for the productions of every part of the country,” thus serving as a supplement to, not substitute for, the home market. The economists suggested a sequence, from the perfection of the home market to the expansion of foreign trade in order to widen the sphere of reciprocally beneficial exchange and promote the continuing division of labor that was the engine of economic progress, mirroring Destutt’s conception of the progress of political civilization within the nation and radiating out from the nation to the world. The conflation of these processes was not surprising, for the “nation” and the classical economists’ “market” emerged simultaneously and were, to some significant degree, reciprocally constitutive.32 Yet the role of the modern state in creating and extending these homologous domains remained obscure and controversial to contemporaries. Jefferson and Destutt were both reform-minded “liberals” who tended to advocate a minimalist, laissez-faire state: the revolutionaries’ struggle for national self-determination and the economists’ crusade for market freedom were both predicated on dismantling the old regime state. Yet both men did not hesitate to endorse the use of state power to meet both internal and external threats. They defined those threats differently, however, and it was these divergent perspectives that led Jefferson to question some of Destutt’s conclusions on the proper size and constitution of the large and expanding democratic republic.

GEOPOLITICS AND CONSTITUTIONALISM Jefferson’s criticisms of Destutt focused on two related points. He first questioned Destutt’s “preference of a plural over a singular executive” in a “great nation,” and then proceeded to challenge Destutt’s arguments for a unified regime (“un et indivisible”) and against federalism. Destutt’s advocacy of a plural executive followed from his commitment to the principle of representation, reinforced by his distaste for monarchy. Like lawmaking, “the execution of the laws” should not be “confided to a single person”: “it may on the contrary be said, that the affairs of a great nation, directed in general by a legislative body, requires in its execution to be conducted in an uniform manner, and according to the same system.” Division of the executive would keep a nation from degenerating into a “special,” despotic regime under the rule of a single man. Jefferson was quick to point out that the Americans had experimented with a plural executive when Congress appointed a short-lived Committee of States in 1784 that “fell immediately into schisms and dissensions, which became at length so inveterate as to

render all co-operation among them impracticable.” The French Directory had also been a disastrous failure, giving rise to the very situation it was supposed to prevent: the concentration of power in the hands of Napoleon, the self-proclaimed emperor. In contrast, “during a course of twenty-two years of the most tempestuous times the history of the world has ever presented,” the “tenor” of the American presidency had been remarkably “tranquil and steady.”33 Jefferson was convinced that the broad distribution of authority within a great nation was critical to the preservation of its liberties. Thus, while Destutt would unify the regime and divide executive power, Jefferson argued for dividing the regime and unifying it in its federal head. “The true barriers of our liberty in this country are our State governments,” Jefferson wrote, “and the wisest conservative power ever contrived by man, is that of which our Revolution and present government found us possessed.” The fatal error of the French revolutionaries was to demolish provincial authorities. By preserving the integrity and independence of the separate colony-states, the Americans had preserved their liberties, showing that republican government could survive and prosper over an extended—and expanding—domain: “seventeen distinct States, amalgamated into one as to their foreign concerns, but single and independent as to their internal administration, regularly organized with legislature and governor resting on the choice of the people, and enlightened by a free press, can never be so fascinated by the arts of one man, as to submit voluntarily to his usurpation.”34 The obvious explanation for the different attitudes toward federalism was that the geopolitical circumstances of the sister republics were so radically different. The “confederative system” might answer well for Americans, Destutt acknowledged, “because they have no powerful neighbors.” But if “France had adopted this form, it is doubtful whether it could have resisted all Europe, as it did by remaining one and indivisible.”35 Jefferson’s criticisms on this point must have been galling, for Destutt believed he had completely demolished Montesquieu’s argument for a “confederate republic,” under which “several petty states agree to become members of a larger one,” and so enjoy “the internal advantages of a republican, together with the external force of a monarchical, government.”36 If it was true “that a nation gains in strength, by uniting with several others,” did it not logically follow that it would become still “more powerful, by an incorporation with them; and does it not lose by subdividing itself into several parts, however closely united?”37 For Destutt, federal arrangements constituted “mere essays or experiments” as statesmen groped toward “true ideas of a representative system.” Unlike the American states, newly reformed as perfect republics, French provinces were bastions of entrenched privilege and impediments to the free flow of goods, people, and ideas that would make a great nation prosper. In this respect, he had no doubt, the French Revolution had been an unequivocal success. Notwithstanding the “calamities” it suffered at the hands of its enemies, France’s “population and agriculture have augmented considerably,” enabling the nation to supply “immense funds from taxes, expends vast sums in public works, and . . . accomplish all this without borrowing; such is her power on the continent of Europe, that nothing can resist it; and were it not for the British navy, France might subdue the universe.”38

Jefferson’s conception of federalism, his solution to Montesquieu’s influential argument about the size of republics, seemed to come full circle, back to Montesquieu’s solution, the “confederate republic.” Jefferson also strongly endorsed Montesquieu’s insistence that “a confederate Government ought to be composed of States of the same nature,” and that the republics—the states with the greatest incentives to associate—were most likely to coexist with “peace and moderation.”39 This was the premise of the American system, as the federal Constitution made clear in the “guarantee clause” (Article IV, Section IV) securing republican government in the states. But Jefferson’s agreement with Montesquieu was more apparent than real, and this is why, notwithstanding their differences on federalism, he was so enthusiastic about Destutt’s critical commentary. Montesquieu’s confederate republic applied the principles of mixed government that apparently worked so well in Britain, the great modern commercial republic, to the society of nations generally. In both cases, establishing order and balance under increasingly complex, modern conditions was the great desideratum. But from Jefferson’s and Destutt’s postrevolutionary perspective Montesquieu’s search for the general principles of politics looked more like a reactionary effort to shore up the corrupt, crumbling ramparts of the old regime. This anachronistic reading—or misreading—of Montesquieu was powerfully reinforced by the revolutionaries’ Anglophobia. It was no coincidence that Jefferson chose to translate Book XI of Destutt’s Review of Montesquieu, a sustained critical commentary on the corresponding book of The Spirit of the Laws in which Montesquieu famously extolled Britain’s “beautiful system” of balanced and separated powers.40 Jefferson and Destutt shared an Anglophobic bias and were deeply invested in the epochal significance of their revolutions. Their shared conviction in the fundamental transformation of world history was expressed in remarkably similar assertions of national greatness: Jefferson claimed that the United States had the “strongest Government on earth,” while Destutt boasted that France was powerful enough to “subdue the universe”—or would be, if Britain did not still rule the waves. Both Jefferson and Destutt glimpsed new sources of power in the revolutionary upheavals that had destroyed the old regime: by overcoming internal conflicts and unleashing the productive powers of their enterprising peoples, these postrevolutionary states had become “great nations.” As the old world gave way to the new, Destutt proclaimed, “special” regimes predicated on “unequal rights” became “national.” The revolutionary conception of nationhood, founded on the principles of equality and consent set forth in Jefferson’s Declaration of Independence, was based on the great truth “that all rights and power originate in, reside in, and belong to, the entire body of the people or nation.”41 The power of these new national regimes was both greater than that which the states of the old regime could possibly mobilize and qualitatively different, for it would ultimately promote the prosperity and happiness of mankind generally as well as of particular peoples. Jefferson and Destutt agreed about the direction of world history, through the formation of true nations, toward the unity of mankind. By emphasizing the mobilization of popular power, the development of the national economy, and the spread of market relations and enlightened reform across the continent, Destutt could discount the importance of regime change and chronic constitutional crisis in France: as long as it continued to respect the fundamental principle of popular sovereignty, the government would continue to be “national.” The nation

could even choose, as France apparently did, to “intrust all its power, or only the executive power to one man, either for life, or in hereditary succession.”42 Despite regime change and the abuse of power in postrevolutionary France, the “nation” survived and prospered in the face of extraordinary counterrevolutionary opposition. Emphasizing the “nation” enabled Destutt to keep the revolutionary faith in trying times, to overlook or explain away the French government’s many deviations from the republican principles his American friend so conspicuously cherished. For his part, Jefferson was remarkably tolerant—critics would say, willfully obtuse—about developments in France. Bloody excesses notwithstanding, the important thing about the French revolution was that it vindicated the principle of national self-determination, both for France itself and for the nations it “liberated.” As Jefferson famously wrote William Short in 1793, he would be willing to see “half the earth devastated” as long as “there was an Adam & an Eve left in every country, & left free.”43 The constitutional arrangements that would sustain that freedom were certainly important to Jefferson, an obsessive constitutionalist, but the nation—the existence of a truly independent people capable of giving itself a constitution—necessarily came first. Jefferson’s commitment to the national idea helps explain both his enthusiasm for Destutt’s Review and his hostility to Montesquieu’s “heresies.” Jefferson and Destutt agreed on the fundamental premise of national self-determination; they also agreed that the measure of a nation’s greatness was the freedom that the people generally enjoyed in pursuing their individual interests and thus in promoting the wealth and welfare of the community as a whole. Jefferson’s language evoked primitive beginnings—each nation had its own Adam and Eve— but pointed to a glorious future: the modern world would be a world of nations, progressively coming together through the spread of commerce and civilization. The different circumstances of postrevolutionary France and the United States showed that a new day may have dawned, as both Jefferson and Destutt so fervently believed, but that the sun did not yet shine equally on all quarters of the globe. The necessity of deploying the power that these new nations commanded—the power made available by their modernizing economies— differed according to their geopolitical situation. Jefferson imagined that the peace-loving American republics would never launch wars of conquest, but would be prepared to rebuff the assaults of the great European powers, including (ironically) Napoleon’s France. France faced more immediate dangers from hostile neighbors, and therefore could not afford to assume the Americans’ more passive, defensive posture. Perhaps, too, Jefferson could have added, the political ignorance and inexperience of the French people presented an even greater obstacle to the establishment of a durable republican regime. These differences would disappear in the fullness of time, however, and Jefferson and Destutt could both look forward with confidence —whatever their immediate circumstances—to the better day coming.

NATION AND WORLD Jefferson and Destutt could minimize their differences on constitutional questions because of their confidence in the future. But the idea of the “nation” they both embraced proved protean and problematic. All nations were not created equal: they stood at different stages of economic, social, and political development and therefore at a greater or lesser distance from

fulfilling their historic destinies; their situation in an anarchic world of hostile states required them to participate effectively in the traditional, old regime balance of power; their interests in expanding the domain of market freedom and thus realizing their productive potential depended both on leveling obstructions to exchange in the home market and on opening trade opportunities—and risking new entanglements—abroad. All of these challenges raised questions of boundaries: what, in short, was the relation between the nation and the world? Jefferson and Destutt both worked within this broad geopolitical framework. Because the nation was “natural”—“representative democracy” was true to “nature, in a perfect state,” Destutt wrote—it should expand to its “natural boundaries.” Because a nation could be any size, it should seek “the best possible boundaries, and when obtained should never pass them.” The “best possible boundaries” were the most extensive ones that could be obtained in competition with neighboring states, and were only “naturally” limited by the extent of reciprocally beneficial market relations.44 The United States was blessed by an immense continental domain and the absence of other powers who could inhibit their continuing expansion. According to Jefferson’s interpretation, “nature” decreed that the Mississippi watershed, including the vast region purchased from France in 1803, should form the heart of one great nation; looking south and north, he envisioned extending the new nation’s natural limits at the expense of neighboring imperial powers. Once Cuba was annexed, he told his successor Madison, “I would immediately erect a column on the southernmost limit of Cuba, and inscribe on it a ne plus ultra as to us in that direction. We should then have only to include the north in our Confederacy, which would be of course in the first war, and we should have such an empire for liberty as she has never surveyed since the creation.”45 Except at times of extraordinary crisis, most notably during the period leading up to the Louisiana Purchase, Jefferson did not anticipate serious obstructions to the progress of expansion on America’s territorial borders. New settlements would extend market relations, facilitating the ties of common interest, friendship, and principle that cemented the union and countered the centrifugal forces that Montesquieuan antiexpansionists claimed to fear. “We do not despair of being always a peaceable nation,” Jefferson told a French correspondent when the Louisiana crisis had passed: “our distance enables us to pursue a course which the crowded situation of Europe renders perhaps impracticable there.”46 In Destutt’s sense, the United States was the only true “nation” on the continent, and therefore free to expand to its limits. France’s European neighborhood was, in stark contrast, fraught with danger. In a remarkable passage, Destutt imagined the nations of the world as “islands,” secure in their natural borders. “Of all natural limits,” he wrote, the sea is “the best”: The advantages of an island for happiness and liberty are very great. This is so true, that if we suppose the surface of the globe divided into islands of a proper extent and distance from each other, it would be covered by rich and industrious nations, who would not stand in need of any land armies, consequently ruled by moderate governments only. Having the most convenient communication among themselves, and scarcely any ability to hurt each other without affecting their

reciprocal relations, their differences would soon cease by means of their mutual dependence and wants. If, on the contrary, we suppose the earth without sea, nations would then be without commerce, always in arms, in constant fear of neighboring nations, ignorant of others, and living under military governments: the sea is one obstacle to all kind of evil, and a means of numerous advantages.47 Destutt conceived of the “nation” as an “island” with the sea, its natural boundary, keeping it at a safe distance from other nations. Kept apart, nations would engage in peaceful commercial relations rather than in the never-ending contest to secure extensive limits. This was another way of saying that nations were otherwise boundless, that their natural tendency to expand in order to promote prosperity through a progressively elaborate division of labor would lead to constant warfare, not peace. Destutt thus proceeded from the “realistic” premise of the balance-of-power theorists, that “Nations, as they respect each other, stand in precisely the same relations as savages.”48 International trade mitigated chronic conflict, however, teaching nations to cultivate reciprocally beneficial relations. Ultimately, when “civilized nations . . . reached that point at which society is organized and somewhat more perfect, by the establishment of social duties and rights”—that is, when “special” regimes became truly “national”—they would move toward a “third state of civilization” by establishing “among themselves, a common tribunal, and a power sufficient to enforce its decisions, such as takes place in the interior of a confederation, among the members of the confederacy.”49 The nation that fulfilled its “national” destiny in a society of true nations would thus ultimately transcend nationality. In the end, Destutt, like Jefferson, seemed to come back to Montesquieu’s “confederate republic.” But both Destutt and Jefferson extricated their federal designs from balance-ofpower geopolitics. In Destutt’s “third state,” the end point of the progress of political civilization, enlightened regimes would trade and negotiate, not fight. In optimistic moments, Jefferson could imagine that the American republics had, under their federal Constitution, already achieved that exalted condition. Preserving peace in the new world depended on recognizing the benefits of the “union, and the miseries which would follow a separation of the States . . . exemplified in the eternal and wasting wars of Europe.”50 In effect, “history” had come to a happy culmination in America. “Were I in Europe, pax et panis would certainly be my motto,” he wrote Count Diodati: “wars and contentions, indeed, fill the pages of history with more matter. But more blest is that nation whose silent course of happiness furnishes nothing for history to say. This is what I ambition for my own country, and what it has fortunately enjoyed for now upwards of twenty years, while Europe has been in constant volcanic eruption.”51 The American federal republic was a working model of the new, improved world Destutt imagined in his world of island nations. Jeffersonian Joel Barlow thus urged Europeans to follow the American lead by “republicanizing” their nations along the lines Destutt suggested, and then “federalizing” them into a more perfect union.52 But until the happy moment when the

Old World caught up with the New, the United States would have to function as a “power”—in the conventional sense—in the European states system. Jefferson’s federalism reflected his posture as a “half-way pacifist,” in, but not of, the world of power politics.53 Similarly, his patriotic rhetoric invoked the image of irresistible popular power in defense of liberty. After all, the revolutionary “Spirit of 1776” had enabled the Americans to win their independence by defeating Britain on the battlefield.54 Jefferson had “little fear” of “foreign invasion,” even by the great conqueror Napoleon himself. If, in the Peninsular Campaign, a French army of 300,000 had failed to subdue Spain, a “nation of five millions, brutalized by ignorance, and enervated by a long peace, ... what numbers would be necessary against eight millions of free Americans, spread over such an extent of country”?55 Jefferson did not naively imagine that the popular patriotism that constituted “the innate strength of our form of government” was in itself adequate to meet all threats.56 After his retirement, he surveyed the measures his administration had taken to guarantee the new nation’s security. “Having found, when I was called to it, not a single seaport in a condition to repel a levy of contribution by a single privateer or pirate,” he wrote his old Polish comrade Kosciusko, “I had left every harbor so prepared by works and gunboats, as to be in a reasonable state of security against any probable attack; the territory of Orleans acquired, and planted with an internal force sufficient for its protection.” His satisfaction would have been complete had “the whole territory of the United States [been] organized” as he had repeatedly urged “by such a classification of its male force, as would give it the benefit of all its young population for active services.”57 Jefferson’s posture was always defensive, never—he liked to think—belligerent. Jeffersonians routinely juxtaposed their “pacific system” to the perpetual state of war, the “bellum omnium in omnia of Europe.”58 But the stark juxtaposition of Europe and America was easier to imagine than to enforce; indeed, Jefferson was drawn to this dichotomy—the notion of a clear boundary line between Old World and New—precisely because the reality was so much more complex. The European powers held on to their colonial empires—indeed, the threat that France would extend its influence through the Mississippi hinterland precipitated the great crisis (and opportunity) of the first Jefferson administration—and European control of the seas threatened to dominate and disrupt the new nation’s foreign trade—leading to the diplomatic crises of his second administration that culminated in “Mr. Madison’s War.” Assuming the “natural” distinction between the two Worlds, Jefferson could only conclude that “the whole system of Europe towards America” was “an atrocious and insulting tyranny.” “One hemisphere of the earth,” he wrote in 1811, “separated from the other by wide seas on both sides, having a different system of interests flowing from different climates, different soils, different productions, different modes of existence, and its own local relations and duties, is made subservient to all the petty interests of the other, to their laws, their regulations, their passions and wars, and interdicted from social intercourse, from the interchange of mutual duties and comforts with their neighbors, enjoined on all men by the laws of nature.” The balance of power kept European “lions and tigers” at each other’s throats and thus worked to the Americans’ advantage, but a passive posture could not guarantee peace.59

“When our strength will permit us to give the law of our hemisphere,” Jefferson concluded, “the meridian of the mid-Atlantic should be the line of demarkation between war and peace, on this side of which no act of hostility should be committed.”60 Jefferson thus apparently dissented from Destutt’s emphasis on maritime boundaries—and connections—when he celebrated the American union as a regime of good neighbors sharing territorial boundaries in perpetual peace. The boundaries of the American states were not the international frontiers that Destutt had in mind. Having delegated the powers of war and peace to the federal government, the states effectively disarmed themselves. Comity among the states, the security of property rights, and a dynamic, mobile population that moved freely from state to state muted “national” distinctions and mitigated conflicts of interest. The realistic “Publius” might have been right that republics were no more peaceful than other forms of government and that, in the absence of a strong union, an anarchic state of nature would emerge among the American states: it was “an axiom in politics,” Hamilton wrote in Federalist no. 6, “that vicinity, or nearness of situation, constitutes nations natural enemies.” But the ratification of the Constitution changed all that, Jefferson believed, inaugurating a regime of peace among the states, “the happy empire of perfect wisdom and perfect virtue” that was such a “remote” prospect under the Articles of Confederation.61 Under the Constitution, provisions for collective security were linked to prohibitions on state interference with the free movement of people and goods, thus fostering the development of regional and national markets. Federalists and Republicans alike agreed that the Constitution solved the problem of the extended republic, but their interpretations of that solution differed radically. Hamiltonian High Federalists were centralizers, sharing Destutt’s impatience with a broad federal distribution of authority that impeded national development. Jefferson and his allies reasoned in the opposite direction, arguing that a limited delegation of power to the federal government facilitated the development of more perfect republican regimes in the states by guaranteeing peace and collective security. While Federalists thus tended to conflate the “nation” with the government of the Union, Republicans identified the “nation” with the people, distinguishing it from either state or federal governments. As a model world order, the Union showed what conventional, war-prone nations could become—perfect republics, or Destutt’s “national” regimes—at a higher level of political civilization. In the progressive scheme that Jefferson and Destutt embraced, national self-determination was a crucial step toward the “happy empire” Hamilton mocked, when the rights and true interests of mankind generally were recognized and secured. The American nation in Jefferson’s inspirational language was a nation-to-end-nations, a local microcosm of mankind generally, a preview of the New World in the making, moving toward the end of history. Destutt shared Jefferson’s enthusiasm for the new nation’s bright prospects. But the fate of the national idea in Europe, where nations struggled to promote their peoples’—or rulers’— interests in competition with “formidable neighbors” and without the “immense regions of fertile and uncultivated lands” that beckoned enterprising Americans, was bound to follow a much different course.62 Destutt’s island-nation fantasy—his acknowledgment of Britain’s fortuitous position in the European balance of power, as well as of its historic maritime and

commercial advantages—reflected the primacy of geopolitical considerations in his thinking. The first challenge for the modern nation was to secure its existence against powerful enemies —in effect, to make itself into an island—and then to make enemies into friends through enlightened, reciprocally beneficial trade relations. The United States, like Britain, was blessed by its “insular” situation and a great ocean boundary that simultaneously served as the medium for the commercial connections that promoted world peace and prosperity. Until European nations achieved the same level of political development that the new nation had already achieved, thanks to its fortunate circumstances, the link between nation and state would remain powerful. Without strong central governments, Old World nations could neither perfect their regimes at home—by eliminating barriers to free exchange and economic development (which, in France’s case, were so closely tied to provincial and corporate privileges)—nor protect themselves against external threats. As a political economist, Destutt recognized that expanding commerce was crucial to national development. Building on the work of Adam Smith and Jean Baptiste Say, Destutt argued that merchants contributed as much to the national wealth and welfare as agriculturalists or manufacturers. Like “all other industrious persons,” and in contrast to “conquerors and courtiers” who take “the goods of others by force or deceit,” merchants “seek only for reward in their talents, by means of free agreements entered into with good faith and guaranteed by the laws.” But Destutt was not satisfied with merely correcting the Physiocrats’ bias toward agriculture—a bias that survived in Smith’s and Jefferson’s political economy. Merchants not only made productive activity possible, but the trade relations they fostered were “the source of all . . . moral sentiments; and the first and most powerful cause of the improvement of their mutual sensibility and reciprocal benevolence.” The progress of civilization was itself a function of expanding commerce: “it commences by uniting all the men of the same tribe; it afterwards unites those societies with each other, and finishes by connecting all parts of the universe.”63 By contrast, agriculture, the dominant activity at a primitive stage of social development, exploited an unskilled and ignorant class of laborers, “the last in rank in society, because almost destitute of intellectual knowledge.”64 Destutt attempted to demystify agriculture by arguing that the land itself was nothing more than a “machine.”65 Beguiled by the “false idea of a sort of magical virtue attributed to the earth,” the economists continued to hold forth on “the dignity and utility of agriculture” and thus to imagine, in Jefferson words, that “those who labour in the earth are the chosen people of God . . . whose breasts he has made his peculiar deposit for substantial and genuine virtue.” Destutt dismissed such views as atavistic survivals of the old regime. Agrarians confused love of country with a timeless—and mindless—attachment to the land, leading them to embrace the absurd premise of the old “feodal system,” that “an inanimate tract of land” itself has “rights.”66 They thus arrived at the profoundly mistaken “notion that there are no true citizens in a state but the proprietors of land, and that they alone constitute society.” Such citizens might indeed be “virtuous” in the classical sense, stupidly sacrificing their interests—and themselves —for a meaningless abstraction. But these were not the enlightened, cosmopolitan citizens who would promote the nation’s wealth and welfare and therefore the progress of human civilization generally. For Destutt, in fact, it was patriotism of the old sort—the feudal

attachment to the particular tracts of land and the corollary belief that the conquest of new land (and the people attached to it) was the key to national power—that had kept the old regime in a nearly constant state of war and led him to imagine a world of island nations. Destutt’s contempt for agriculture thus followed from his conception of the progressive role of the postrevolutionary nation in world history. Jefferson gave no indication of being troubled by his French friend’s derogatory comments about farmers and agriculture.67 The important thing for Jefferson both in this case and on the related issue of federalism was that he and Destutt were in fundamental accord on the progress of political civilization. Jefferson’s enterprising and enlightened farmer could not, in any case, be confused with Destutt’s ignorant peasant. “In the United States of America,” Destutt wrote, “the people are intelligent and their faculties untrammelled by absurd institutions or establishments.” They were certainly not tied to the land, which they exploited in just the instrumental way—for its productive potential (or to strip its resource endowment)—that Destutt prescribed. European and American agriculturalists pursued their interests in far different circumstances: redundant European labor was forced to expatriate, if it could, while Americans could simply move on to greener fields. And as long as republican governments secured their rights to property and political participation, mobile Americans had little reason to worry about where they landed: one state was as good as another.68 The situation of societies on either side of the Atlantic mirrored that of their citizens (or subjects). European nations were constrained by finite resources and conflicting claims, and this was why Destutt imagined each nation as an island with “natural boundaries” and access to the markets of the world. The differing geopolitical circumstances of New World and Old explain the different pathways to the glorious future that both Jefferson and Destutt imagined. In optimistic moments, Jefferson exulted that the republican millennium had already arrived. Providing for collective security, guaranteeing peace among the state-republics, and liberating enterprising Americans to pursue their own happiness, the federal union anticipated the future state of the world. “Who can limit the extent to which the federative principle may operate effectively?” Jefferson asked in his Second Inaugural Address.69 The boundlessness of the nation’s expansive energies—and of the market that tied Americans together—was matched by the boundlessness of a continent with land enough for countless future generations. Yet Jefferson’s bright vision was shadowed by extraordinary contingencies that threatened to retard or reverse the new nation’s natural progress. Without a clearly defined boundary, the New World could never be fully disentangled from the Old. Europe continued to be present in America, in its colonial possessions, in commercial connections with American interests, in political links with the “monocrats” and “aristocrats” who constituted Jefferson’s disloyal opposition. At moments of crisis, European powers threatened to become “formidable neighbors” who would limit the growth of the Union, or even destroy it. At such moments, Jefferson’s New World converged with Destutt’s Old and history’s horizon receded. Perhaps the United States would then, like France, have to take on the form of the revolutionary nationstate before it could move on to the last stage of political development.

JEFFERSON’S WEST Jefferson’s enthusiasm for Destutt de Tracy’s Commentary and Review of Montesquieu illuminates his conception of national and world history, even as their friendly disagreements underscore the distinctive geopolitical circumstances of their two worlds. As long as the New World remained entangled in the affairs of the Old, the republican millennium would be postponed. But the prospects seemed good when Jefferson wrote to Destutt in 1811. The Louisiana Purchase in 1803 preempted the possibility of a powerful French presence at the mouth of the Mississippi, the only serious obstacle to American expansion to the west; the loyalty of the Louisianans and other western settlers during the Burr Conspiracy of 1806— 1807 was also gratifying to Jefferson. The looming war with Britain and another separatist threat—this time from New England—would shatter this complacency, and the Missouri controversy of 1819—1821 would drive the aging Jefferson to the brink of despair. As each of these crises passed, however, Jefferson reasserted his faith in the republic’s future. Jefferson expressed this faith in his visions of western expansion.70 Given his hunger for the latest and best scientific and ethnographic data, Jefferson could hardly pretend that the West was a “terra nullius,” a vast empty space on which the new nation’s destiny could be inscribed. But the idea of “nation” that Jefferson shared with Destutt authorized, even demanded, territorial expansion while at the same time depicting the continent’s native inhabitants as merely temporary obstacles, doomed to vanish from the landscape. The nation would expand to its natural limits, from sea to sea, as enterprising citizens discovered new productive uses for these “immense regions of fertile and uncultivated lands.” The journey across space would be a journey through time. Jefferson elaborated this theme—the logic of American nationhood—in a famous letter to William Ludlow in 1824: Let a philosophic observer commence a journey from the savages of the Rocky Mountains, eastwardly towards our sea-coast. These he would observe in the earliest stage of association living under no law but that of nature, subscribing and covering themselves with the flesh and skins of wild beasts. He would next find those on our frontiers in the pastoral state, raising domestic animals to supply the defects of hunting. Then succeed our own semi-barbarous citizens, the pioneers of the advance of civilization, and so in his progress he would meet the gradual shades of improving man until he would reach his, as yet, most improved state in our seaport towns. This, in fact, is equivalent to a survey, in time, of the progress of man from the infancy of creation to the present day.71 Jefferson’s indebtedness to the Scottish conjectural historians’ four-stage theory of the progress of civilization is apparent in this passage.72 But the absence of any other nation in Jefferson’s scenario and his identification of the United States with the “most improved” civilization of the “present day” suggest that the epoch of peace and prosperity that he envisioned in his First Inaugural—the end of history—was now in sight. With a boundless

domain for an immortal people, “room enough for our descendants to the thousandth and thousandth generation,” time and space converged. As they did, the distinction between “nation” and “world” disappeared. This was the trajectory of historical progress, fulfilling and then transcending the great imperative of national self-determination and thus fulfilling mankind’s destiny in Destutt’s “third state” of civilization. The counterpoint to Jefferson’s vision in his Inaugural Address and the Ludlow letter was the recognition—most conspicuous in moments of crisis, but never fully suppressed—that the United States was still a nation in, not yet beyond, history. The shifting perspective betrayed his fundamental ambivalence about the role of the state in national history.73 The link between “nation” and “state” was problematic for Jefferson: strict construction of the federal compact kept them separate, securing the people against abuses of power, while a periodic return to first principles reaffirmed the principle of generational sovereignty: “the earth belongs in usufruct to the living” and “one generation is to another as one independant nation to another.”74 Jefferson was so scrupulous about constitutional interpretation because constitutions expressed the will of the people, or a particular “generation,” at a particular moment, not because he looked at them “with sanctimonious reverence, and deem[ed] them like the arc of the covenant, too sacred to be touched.” After all, “our republicanism is to be found . . . not in our constitution certainly, but merely in the spirit of the people.” As long as the chain of generations remained unbroken, nations were immortal: constitutions were not.75 Geopolitical circumstances forged a powerful link between nation and state in Destutt’s thought, epitomized in his conception of the nation as an island. As long as the regime was truly “national,” Destutt was unconcerned about particular constitutional provisions: the nation needed to mobilize its power against its enemies, not secure itself against hypothetical dangers from its own rulers. In other words, Destutt was more confident than Jefferson that the revolutionary transition from old regime to new was complete and irrevocable. In contrast, Jefferson was, alternatively, more optimistic about the future prospects of the American nation and the world—or at least of the New World, if it remained disentangled from the Old—and more fearful about the dangers of regressing to an earlier stage of development, before the Americans declared themselves a nation. The American Revolution, the touchstone of Jeffersonian optimism, had to be refought, the “Spirit of 1776” had to be renewed, precisely because the internal enemies of republicanism, aided and abetted by the new nation’s foreign foes, continually conspired to reestablish the old regime in America. The nation came first in Jefferson’s political imagination; the constitutions that expressed the people’s sovereign will and the governments that executed it followed in due course. When Jefferson looked west and into the future, the connection between the American people, their local governments, and the Union sometimes seemed tenuous. In a remarkable letter to John Breckinridge, written shortly after the Louisiana Purchase had been completed, Jefferson complacently contemplated the future rupture of the Union. What did it matter if the Federalists, who invoked Montesquieu’s authority on the question of size, were right and the addition of the Louisiana Territory would ultimately lead to the “formation of a new confederacy, embracing all the waters of the Mississippi, on both sides of it, and a separation of its eastern waters from

us?” This was, of course, precisely the outcome that the purchase was supposed to preempt. But Jefferson could be sanguine about a division among Americans into two unions precisely because the French presence had been eliminated. “If it should become the great interest of those [western] nations to separate from this, if their happiness should depend on it so strongly as to induce them to go through that convulsion,” Jefferson asked, “why should the Atlantic States dread it?” The important point was that these westerners were Americans and therefore good republicans: they would form a union that would secure their peace and prosperity, either among themselves or with the eastern states. In either case, they would be “friendly,” not “hostile neighbors.” Jefferson therefore did not see this prospective breakup of the union “as an Englishman would” if he were “procuring future blessings for the French nation, with whom he has no relations of blood or affection.” “The future inhabitants of the Atlantic and Mississippi States will be our sons,” Jefferson concluded. “We think we see their happiness in their union, and we wish it,” but “if they see their interest in separation, why should we take side with our Atlantic [rather] than our Mississippi descendants? ... God bless them both, and keep them in union, if it be for their good, but separate them, if it be better.”76 Jefferson thus made one of the strongest statements of his genealogical conception of American nationhood, invoking “blood” and “affection” and the succession of generations, in tandem with an astonishingly benign view of the prospect of disunion. One depended on the other. Unlike the nations of the Old World, the “nations” of the New were by definition—or, more precisely, by their republican self-constitution—“friendly” and could therefore be counted on to pursue their own—and respect each other’s—best interests. Indeed, this was the enlightened attitude that Jefferson himself displayed in his letter to Breckinridge. It is unlikely, of course, that Jefferson really expected disunion, at least in the near future: this would be a decision that “our sons” would have to make for themselves at some distant future day. At this point it was hard to imagine that it would ever be in the interest of neighboring republics to destroy a union that guaranteed collective security and facilitated the extension and elaboration of a national market. But could the American Union, defined as a community of interdependent interests, cross the great natural boundary of the Rocky Mountains? Jefferson was doubtful, but untroubled. “I considered as a great public acquisition the commencement of a settlement on that part of the western coast of America,” he wrote John Jacob Astor in 1812, and yet again “looked forward with gratification to the time when its descendants should have spread themselves through the whole length of that coast, covering it with free and independent Americans, unconnected with us but by ties of blood and interest, and employing like us the rights of self-government.”77 The expansion of the nation thus ran ahead of the Union; indeed, in the absence of common interests fostered by a dense (landward) network of market relations, union might never catch up. But that was fine with Jefferson, for the superstructure of union was only the temporary means of securing the American nation against the imperfect, unreformed, unrepublican regimes of the Old World. Jefferson and Destutt both rejected Montesquieu’s teaching on the question of size. Embracing the logic of Adam Smith and the economists, Destutt saw the new nations of postrevolutionary Europe as “naturally” expansive: “the extent of the market” was crucial to a

nation’s population, productivity, and progress to ever higher levels of civilization. The modern discovery of the principle of representation transformed “special” regimes into “national,” enabling “representative democracy” to flourish in large and expanding states. Jefferson’s “nation” was similarly expansive, spreading inexorably across a vast continent. With the luxury of an imagined “free security,” however, the American nation could dispense with a powerful state administration—except in moments of national emergency—and protect themselves against prospective abuses of power by adhering religiously to their constitutions. The American nation might even dispense with the Union itself, or so Jefferson imagined in his letters to Breckinridge and Astor. When it did, a self-transcending American nation would have fulfilled its historic destiny: this nation would become the world.

NOTES 1 Alexander DeConde, This Affair of Louisiana (New York: Charles Scribner’s Sons, 1976); Robert W. Tucker and David C. Hendrickson, Empire of Liberty: The Statecraft of Thomas Jefferson (New York: Oxford University Press, 1990). The best study of the early political and diplomatic history of Louisiana is Peter J. Kastor, The Nation’s Crucible: The Louisiana Purchase and the Creation of America (New Haven, Conn.: Yale University Press, 2004). 2 For further discussion see Peter Onuf, “The Expanding Union,” in David T. Konig, ed. Devising Liberty: Preserving and Creating Freedom in the New American Republic, 51—80 (Stanford, Calif.: Stanford University Press, 1995). 3 Baron de Montesquieu (Charles de Secondat), The Spirit of the Laws, ed. Anne Cohler, Basia Carolyn Miller, and Harold Samuel Stone, book 8, chap. 16 (Cambridge, UK: Cambridge University Press, 1989). 4 “The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States.” Jacob E. Cooke, ed. The Federalist, 61st ed. (Middletown, Conn.: Wesleyan University Press, 1961), no. 10 (Madison), 64. Jefferson admired the Federalist Papers, and there are significant traces of Madison’s (and Montesquieu’s) thinking in his own conception of the extended republic, for instance in the idea that “diseased” portions of the body politic could be quarantined and returned to good health—or, if necessary, excised—by the prevailing influence of the healthy members. “If a sedition occurs in one of the members of the confederation,” Montesquieu wrote, “the others can pacify it. If some abuses are introduced somewhere, they are corrected in the healthy part.” The Spirit of the Laws, book 9, chap. 1, 132. For an excellent introduction to Madison and Montesquieu, see Paul Rahe, Republics Ancient and Modern: Classical Republicanism and the American Revolution (Chapel Hill: University of North Carolina Press, 1992), 573—616. 5 “It must be confessed, that in this, as in most other cases, there is a mean, on both sides of which inconveniencies will be found to lie.” Clearly the sphere of the federal legislature, attending solely to “great and national objects,” was greater than that of the state legislatures, with their “local and particular” concerns. But Madison’s principle still applied: the size of

the union should not exceed the “mean.” Cooke, The Federalist, 10 (Madison), 63. See the discussion of Madison and the “Size of the Union,” in Peter Onuf and Nicholas Onuf, Federal Union, Modern World: The Law of Nations in an Age of Revolutions , 1776—1814 (Madison, Wisc.: Madison House, 1993), 80—87. 6 For fuller discussion see Peter S. Onuf, Jefferson’s Empire: The Language of American Nationhood (Charlottesville: University Press of Virginia, 2000). 7 Montesquieu, The Spirit of the Laws, 124. 8 Thomas Jefferson, First Inaugural Address, March 4, 1801, in Merrill D. Peterson, ed. Jefferson Writings (New York: The Library of America, 1984), 494. 9 Ibid. See the essays collected in James P. Horn, Jan Ellen Lewis, and Peter S. Onuf, eds., The Revolution of 1800: Democracy, Race, and the New Republic (Charlottesville: University Press of Virginia, 2002). 10 Thomas Jefferson, Draft of the Kentucky Resolutions, Oct. 1798, in Peterson, Jefferson Writings, 453, 454. 11 First Inaugural Address, in Peterson, Jefferson Writings, 493. 12 Montesquieu, The Spirit of the Laws, book 5, chaps. 2—3, 42—4. 13 Antoine Claude Destutt de Tracy, A Commentary and Review of Montesquieu’s Spirit of the Laws. Prepared for the Press From the Original Manuscript, in the Hands of the Publisher (Philadelphia: William Duane, 1811; New York: Burt Franklin, 1969). 14 Thomas Jefferson to A. L. C. Destutt de Tracy, January 26, 1811, in Peterson, Jefferson Writings, 1242, 1243. On the relationship between Jefferson and Destutt, I am indebted to the brilliant essay by Joyce Appleby, “What Is Still American in the Political Philosophy of Thomas Jefferson,” William and Mary Quarterly 39 (1982), 287—309, reprinted in her Republicanism and Liberalism in the Historical Imagination (Cambridge, Mass.: Harvard University Press, 1992), 291—319. See also Emmet Kennedy, A Philosophe in the Age of Revolution: Destutt de Tracy and the Origins of “Ideology” (Philadelphia: American Philosophical Society, 1978), 167—83, 208—13, and Dumas Malone, The Sage of Monticello , vol. 6, Jefferson and His Time (Boston: Little, Brown, 1981), 208—12. 15 Thomas Jefferson to Thomas Mann Randolph, May 30, 1790, in Andrew A. Lipscomb and Albert Ellery Bergh, eds. The Writings of Thomas Jefferson, 20 vols. (Washington, D.C.: Issued under the auspices of the Thomas Jefferson Memorial Association of the United States, 1903—1904), 8:31; Thomas Jefferson to Francois D’Ivernois, February 6, 1795, in Peterson, Jefferson Writings, 1024. For a similar prediction, see Joel Barlow, To His Fellow Citizens of the United States, Letter II (Philadelphia: William Duane, 1799), 4—5: “Not many years

will pass” before it would universally be accepted that “the republican principle is not only proper and safe for the government of any people; but, that its propriety and safety are in proportion to the magnitude of the society and the extent of the territory.” 16 This was hardly a fair reading of The Spirit of the Laws: far from being an advocate of ancient virtue, Montesquieu celebrated the mixed regime that sustained the rule of law in Britain, the quintessential modern commercial republic. Montesquieu, The Spirit of the Laws, book 11, chap. 6 (“On the constitution of England”), 156—66. 17 Thomas Paine, Common Sense (Philadelphia: W. & T. Bradford, 1776). 18 Destutt de Tracy, Review of Montesquieu, 12—13. 19 Ibid., 13—14. 20 Ibid., 117—18. 21 Ibid., 18—19. 22 Ibid., 24, 20, 24. 23 Jean M. Yarbrough, American Virtues: Thomas Jefferson on the Character of a Free People (Lawrence: University Press of Kansas, 1998). 24 Destutt de Tracy, Review of Montesquieu, 41. 25 Thomas Jefferson, Response to the Citizens of Albemarle, February 12, 1790, in Peterson, Jefferson Writings, 491. 26 Thomas Jefferson, Declaration of Independence, July 4, 1776, in ibid., 19. 27 Destutt de Tracy, Review of Montesquieu, 33. On the theme of moral progress, see Ari Helo and Peter Onuf, “Jefferson, Morality, and the Problem of Slavery,” William and Mary Quarterly 60 (2003); and Nicholas Onuf and Peter Onuf, “Adam Smith: Moral Historian,” in Liberal Histories, Nation-Making, and the Coming of the Civil War (forthcoming). 28 Thomas Jefferson, First Inaugural, in Peterson, Jefferson Writings, 493. 29 Albert O. Hirschman, The Passions and the Interests: Political Arguments for Capitalism before Its Triumph (Princeton, N.J.: Princeton University Press, 1977). 30 Destutt de Tracy, Review of Montesquieu, 205—6. 31 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, ed. R. H. Campbell and A. S. Skinner, 2 vols. (Indianapolis, Ind.: Liberty Fund, 1981), book IV, chap. 3,

part II, 2:493. Destutt criticized Montesquieu for considering foreign trade as “the means of making a profit on strangers,” or “of fleecing foreign nations of a few dollars.” Destutt de Tracy, Review of Montesquieu, 214, 219. 32 Modern students of nationalism emphasize, with Destutt and Jefferson, the importance of leveling distinctions and homogenizing political space in order to facilitate the mobilization of men and resources in the nation-building project. At the same time, of course, they reject the Enlightenment conception of historical progress that tends to naturalize the nation—and minimize the role of the state in deconstructing the old regime and constructing the new. See particularly Ernest Gellner, Nations and Nationalism (Ithaca, N.Y.: Cornell University Press, 1983). 33 Thomas Jefferson to Destutt de Tracy, January 26, 1811, in Peterson, Jefferson Writings , 1243—44; Destutt de Tracy, Review of Montesquieu, 125, 127. 34 Thomas Jefferson to Destutt de Tracy, January 26,1811, in Peterson, Jefferson Writings , 1245—46. 35 Destutt de Tracy, Review of Montesquieu, 82—83. 36 Montesquieu, The Spirit of the Laws, book IX, chap. 1, 131. 37 Destutt de Tracy, Review of Montesquieu, 83. 38 Ibid., 64. 39 Montesquieu, The Spirit of the Laws, book IX, chap. 2, 132. 40 Ibid., book XI, esp. chap. 6, quotation at 166. 41 Destutt de Tracy, Review of Montesquieu, 12. 42 Ibid., 13. 43 Thomas Jefferson to William Short, January 3, 1793, in Julian P. Boyd et al., eds., The Papers of Thomas Jefferson, 31 vols. to date (Princeton, N.J.: Princeton University Press, 1950—), 25:14—17. For further discussion see Onuf, Jefferson’s Empire, 170—73. Jefferson’s most virulent critic on this issue is Conor Cruise O’Brien, The Long Affair: Thomas Jefferson and the French Revolution (Chicago: University of Chicago Press, 1996). 44 Destutt de Tracy, Review of Montesquieu, 19, 91. 45 Thomas Jefferson to Madison, April 27, 1809, in Lipscomb and Bergh, eds., Writings of Jefferson, 12:274—77. On Jefferson’s geopolitics see Tucker and Hendrickson, Empire of Liberty; and James E. Lewis, Jr., The American Union and the Problem of Neighborhood:

The United States and the Collapse of the Spanish Empire, 1783—1829 (Chapel Hill: University of North Carolina Press, 1998). On “natural rights” claims to territory, see Albert K. Weinberg, Manifest Destiny: A Study in Nationalist Expansionism in American History (Baltimore: Johns Hopkins Press, 1935). 46 Thomas Jefferson to Monsieur de Cabanis, July 12, 1803, in Lipscomb and Bergh, eds., Writings of Jefferson, 10:405. 47 Destutt de Tracy, Review of Montesquieu, 80. 48 Ibid., 86. 49 Ibid., 88. 50 Thomas Jefferson to James Ogilvie, August 4, 1811, in Lipscomb and Bergh, eds., Writings of Jefferson, 13:70. 51 Thomas Jefferson to Monsieur Le Comte Diodati, March 29, 1807, in ibid., 11:181—82. 52 Joel Barlow, To His Fellow Citizens, Letter II, 8n. For further discussion see Onuf and Onuf, Federal Union, Modern World, 135—44. 53 The phrase comes from Reginald C. Stuart, The Half-Way Pacifist: Thomas Jefferson’s View of War (Toronto: University of Toronto Press, 1978). For a much more critical account of Jefferson’s foreign policy see Tucker and Hendrickson, Empire of Liberty. 54 On the centrality of the “Spirit of 1776” in Jefferson’s conception of nationhood, see Onuf, Jefferson’s Empire, 98—102 and passim. 55 Thomas Jefferson to James Brown, October 27, 1808, in Lipscomb and Bergh, eds., Writings of Jefferson, 12:184—85. 56 Thomas Jefferson to Dupont de Nemours, July 14, 1807, in ibid., 11:275. 57 Thomas Jefferson to Gen. Thaddeus Kosciusko, February 26, 1810, in ibid., 12:368. 58 Kent Co., Del., Democratic-Republicans to Thomas Jefferson, January 13, 1807, Jefferson Papers (DLC). 59 Thomas Jefferson to Clement Caine, September 16, 1811, in Lipscomb and Bergh, eds., Writings of Jefferson, 13:90. 60 Thomas Jefferson to Dr. John Crawford, January 2, 1812, in ibid., 13:119. For similar sentiments on a “meridian of partition ” between the “two hemispheres,” see Thomas Jefferson to William Short, August 4, 1820, in ibid., 15:263. On the importance of “lines of distinction”

in Jefferson’s thought, see Onuf, Jefferson’s Empire, 113—17. 61 Cooke, The Federalist, no. 6 (Hamilton), 35. See the brilliant discussion of this passage in Gerald Stourzh, Alexander Hamilton and Republican Government (Stanford, Calif.: Stanford University Press, 1970), 145—65. 62 Destutt de Tracy, Review of Montesquieu, 82, 181. 63 Ibid., 232. 64 Ibid., 186. 65 Ibid., 189. “Mr. Say likewise pronounces, without hesitation, book I, chap. 5, that a tract of land is only a machine; yet influenced by [Smith’s] authority . . . he permits himself to be dazzled by the illusions he has so completely destroyed” and “persists in considering a tract of land, as a possession of a particular nature, its productive service as something else than a utility to be derived from a tool; and its rent as different from the interest given for a capital lent.” 66 Ibid., 186. The Jefferson quote is from Query 19 (“Manufactures” in Notes on the State of Virginia, ed. William Peden (Chapel Hill: University of North Carolina Press, 1954), 164— 65. 67 According to the conventional view of Jefferson’s agrarianism, he should have taken serious exception to Destutt here. But as I argue in Jefferson’s Empire, 68—72, 161—63, Jefferson’s apotheosis of the yeoman farmer should not be mistaken for a global rejection of commercial society: agrarianism was an expression of his patriotism. On Jefferson’s “liberal” political economy see Joyce Appleby, Capitalism and a New Social Order: The Republican Vision of the 1790s (New York: New York University Press, 1984). On the liberatory appeal of Adam Smith’s conception of market society see Emma Rothschild, Economic Sentiments: Adam Smith, Condorcet, and the Enlightenment (Cambridge, Mass.: Harvard University Press, 2001). ). 68 Because they were secure in their rights, it was “a matter of total indifference” to Americans “whether the territory on which they live were called New-York or Massachusetts.” Joel Barlow, Advice to the Privileged Orders, in the Several States of Europe (New York, 1792), 76. 69 Thomas Jefferson, Second Inaugural Address, March 4, 1805, in Peterson, Jefferson Writings, 519. 70 For further discussion see Onuf, Jefferson’s Empire, 109—46 and Onuf, “Expanding Union,” in Devising Liberty.

71 Thomas Jefferson to William Ludlow, September 6, 1824, in Peterson, Jefferson Writings, 1496—97. 72 See the excellent discussion in Drew R. McCoy, The Elusive Republic: Political Economy in Jeffersonian America (Chapel Hill: University of North Carolina Press, 1980), 32—40. For the binary opposition of “savagery” and “civilization,” see Roy Harvey Pearce, The Savages of America: A Study of the Indian and the Idea of Civilization (Baltimore: Johns Hopkins University Press, 1953); and on four-stage theory, Ronald L. Meek, Social Science and the Ignoble Savage (Cambridge, U.K.: Cambridge University Press, 1976). On Jefferson and the Indians see Bernard W. Sheehan, Seeds of Extinction: Jeffersonian Philanthropy and the American Indian (Chapel Hill: University of North Carolina Press, 1973) and Onuf, Jefferson’s Empire, 18—52. 73 This is the major theme of Peter Onuf and Leonard Sadosky, Jeffersonian America (Oxford: Basil Blackwell, 2002). 74 Thomas Jefferson to James Madison, September 6, 1789, in Boyd et al., The Papers of Thomas Jefferson, 15:392, 395. For a superb discussion of this letter see Herbert E. Sloan, Principle and Interest: Thomas Jefferson and the Problem of Debt (New York: Oxford University Press, 1995), 50—85. 75 Thomas Jefferson to Samuel Kercheval, July 12, 1816, in Peterson, Jefferson Writings, 1401, 1397, my emphasis. The reference is to the Virginia Constitution of 1776, which Jefferson considered long overdue for revision. See David N. Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville: University Press of Virginia, 1994). 76 Thomas Jefferson to John Breckinridge, August 12, 1803, in Lipscomb and Bergh, Writings of Jefferson, 10:409—10. 77 Thomas Jefferson to John Jacob Astor, May 24, 1812, in ibid., 13:150—51.

3 The Louisiana Purchase and the Coming of the Civil War William W. Freehling* Names can connote less than the thing named, diminishing a phenomenon that deserves a more expansive title. Witness the Louisiana Purchase, a sprawling acquisition that shrinks in significance when analysis narrows to Louisiana and its tropical neighbors. President Thomas Jefferson’s monumental purchase swept far beyond Louisiana, far above Louisiana-style tropics. The non-Louisiana expanse, as much as the Louisiana expanse, acted as a magnifying glass, clarifying the reasons why a civil war over slavery occurred and why the combat would have been extremely hard to avoid. Initially, Thomas Jefferson sought to purchase only what we call Louisiana and its contiguous tropics. The President most aspired to secure Americans’ right to deposit goods for sale in New Orleans. He feared for his republican heroes, white tillers of the soil, if the French government shuttered western Americans’ outlet to the Gulf of Mexico. In early 1803, the President placed an offer of almost ten million dollars for around 40,000 tropical square miles in the pocket of James Monroe, his dear friend, his new envoy to France, and the future last president from Jefferson’s little circle of Virginia slaveholders. So much for two slaveholders’ attempt to pay around thirty-nine cents an acre for slaveholder friendly tropics. Instead, the French foreign minister offered Monroe and his fellow envoy, Robert Livingston, over twenty times more land for only one-and-a-half times more dollars. If America would pay fifteen million dollars, Napoleon’s government would grant 827,987 square miles, running from the Mississippi River to the Rockies and from the Gulf of Mexico to Canada. The apparently bargain basement purchase, costing only two cents rather than thirty-nine cents an acre, would double the fledgling nation’s territory. Irony abounded in one reason for Napoleon’s expanded offer. Slaveholders’ greatest fear for their security, a massive slave revolt, had lately engulfed Haiti, damaging Napoleon’s army and partially dissuading him from further New World risks. Thus did black rebels inadvertently help supply America’s planter president with the nontropical landed feast that would eventually curdle in the slaveholders’ stomachs.

In 1803, Jefferson savored the landed sprawl as an empire of liberty for white farmers, as a means of ousting the French, and as a base for controlling the Indians. His much less important priority was to secure a space for blacks, slavery, and the slavery problem to diffuse beyond danger to the white men’s republic. The president thought slavery a republican disaster for blacks. He agonized more over the unrepublican institution’s peril to white republics. He assailed racial slavery more for upsetting white masters’ alleged enlightened balance than for crushing allegedly inferior blacks’ spirit. He quailed when he remembered that God was just and that an unjustly enslaved people would rise in insurrection. He shuddered when he recalled that hostility between Northerners and Deep South planters had threatened permanent disunion even before the Federal Union could be formed. He winced at the multiple, early demonstrations that whites would never serenely consider abolition, if large concentrations of free blacks would remain on the emancipated terrain. For the white republic to catch its enlightened balance, blacks and slaves would have to be calmly diffused out of white yeomen’s empire of liberty. To plot a vast diffusion of blacks over, then outside of, his newly enormous empire, Jefferson had to drop his previous commitment to a line in the sand, barring slavery from diffusing into unenslaved American spaces. The eighteenth-century Jefferson had favored the proposed Southwest Ordinance of 1784 and the enacted Northwest Ordinance of 1787. The drafts of both ordinances assumed that containing slavery would help abolish the institution. The nineteenth-century Jefferson, however, had nothing good to say about containment. Posterity thinks he had it right the first time, for how could slavery’s expansion have withered the institution? Jefferson thought he had it right the second time, for how could the concentration of blacks have softened the racial fright that routed emancipation? Much frightened Jefferson in the years between the Northwest Ordinance of 1787 and the Louisiana Purchase of 1803. He winced at slave insurrection in Haiti, at South Carolina’s threat to shun a Union tinged with antislavery, at ferocious debates over abolitionist petitions in the first congress, and at Gabriel’s 1800 Slave Conspiracy in Richmond. He shuddered over the scornful rejection of his whispers about abolition in Virginia, where blacks were concentrated. In contrast, he rejoiced at the slow triumph of abolition in northern states, where blacks were scattered. He thus wondered about his late enthusiasm for quarantining massive quantities of slaves in already infected areas. Better to diffuse the infection over as much clean air as possible. Better to deploy diffusion to ease whites’ anxiety about blacks, to create the serene atmosphere in southern states that had yielded emancipation in northern states, to reduce the chance of slave insurrection, and to extinguish the threat that angry Northerners and Southerners would tear apart the republic. It is all the rage these days to call the president’s shift from containment to diffusion sheer hypocrisy, an intellectual’s clumsy attempt to place preposterous cover over a politician’s desire to purchase a white empire, whatever the consequences to blacks. Because of such misplaced cynicism, Jefferson’s critics miss the place where their prey is most vulnerable— and most revealing about his America. The unpleasant truth is that Jefferson cherished his

latter-day diffusion prayer, for diffusion fit this skittish emancipator’s worldview far better than did his earlier containment position. More important, Jefferson’s sincerity epitomized the sincere and dominating belief, in the great middle of American and especially of Upper South politics, that a program of slowly diffusing blacks away offered the only acceptable middle position between proslavery and antislavery extremists—and the only way to make the supposedly necessary evil of slavery unnecessary. A few advanced abolitionists aside, few Northerners, and almost no Southerners, repudiated Jefferson’s master principle on this subject: that a multiracial America, with whites and free blacks massed together, would be the death blow to the republic. Among moderates on slavery, diffusion almost always became the favored antislavery weapon. The image of a monoracial, lily-white America delighted the vast numbers of white leaders and followers who hoped to colonize all U.S. blacks in Africa, the Caribbean, or Latin America. A whitened America tickled the fancy of the huge number of Texas annexationists who hoped the Lone Star State would become blacks’ gate out of the United States. A diffusion of blacks absorbed the imagination of the many tremulous Upper South reformers, especially the preachers, who continued to pray that slavery would be a temporary U.S. institution. In 1832, a half decade after Jefferson’s death, the Virginia legislature spent two historic weeks debating whether slavery should be abolished. The decision turned on fears that free blacks could not be safely diffused away from the state. After this Virginia slavery debate, Border South reformers such as Kentucky’s Cassius Clay and Missouri’s Frank Blair, Jr. always assumed that blacks could indeed be diffused out of sight, when they revived the Virginia discussions. This widespread diffusion persuasion remained a North American original, with scarce copiers in other New World slavocracies. Caribbean and South American slaveholders seldom saw any necessity to diffuse blacks into specks or to deport the specks. They manumitted many more blacks, without much fretting that multiracial free laborers would multiply. In the United States, only two states in the slaveholders’ northeastern extremity emulated the greater racial relaxation south of the border. Delaware and Maryland masters manumitted half their states’ blacks by 1860, usually without removing the freedmen. These free blacks numbered close to 100,000. They comprised 20 percent of the Delaware-Maryland population. They caused scant social convulsion and produced much exemplary labor. Yet despite the mounting evidence that New World regimes could digest free blacks, inside and outside the United States, dread of a multiracial free labor force shackled the moderates in this most republican (for whites) government in the hemisphere. In addition to believing sincerely that only diffusing slaves within the United States could make emancipation seem nonconvulsive, southern moderates such as Jefferson sincerely believed that only colonizing ex-slaves beyond the nation could finish diffusion’s salutary work. Their dream of eventually colonizing black specks to other nations, in or beyond the Americas, also now faces misleading charges of hypocrisy. Supposedly, the chimera would have been too obviously expensive for any reformer to be sincere about the nonsense. But Jefferson correctly believed that proceeds of federal land sales could have paid the

transportation costs. He truly believed that if the republic could be persuaded to pay for blacks’ liberating journeys, and if slaves could be persuaded that liberation elsewhere offered their only republican opportunity, and if black diffusions over vast U.S. lands could turn anxious racists into serene liberators, the American nightmare would dissipate as gently as the fogs that sometimes engulfed Monticello, his mansion on the little mountain. Diffusion, in short, ever remained the guiding light that, if extinguished, would leave proponents of a lily-white America paralyzed in the darkness. That blindness to the possibility of a multiracial republic, and not hypocrisy, led Jefferson to misperceive the Louisiana Purchase as diffusion’s bridge toward republican glory. Folk movements toward the purchase led instead toward republican catastrophe. The Louisiana fragment of the Louisiana Purchase especially mocked the dream of diffusion toward liberty. This tropical basement of the purchase received an avalanche of blacks, enriching white men who meant to keep slaves forever. Louisiana’s Mississippi River Valley and Arkansas’s Red River Valley became important southwestern magnets, pulling slaves and slaveholders downward from the northern South and westward from South Carolina. This gigantic amassing of slaves, the precise opposite of diffusion, yielded the richest North American slaveholders of them all, on huge Mississippi River cotton and sugar plantations. Little of the richest Louisiana or Arkansas dirt remained for Jefferson’s backbone of liberty, slaveless white farmers. This surge toward greater concentration of blacks not only disproved Jefferson’s belief that new land would remove blacks’ allegedly convulsive presence. The reverse of diffusion in Louisiana and Arkansas also savaged the President’s hope that expanded acres would preclude civil war. The Louisiana/Arkansas planters’ fresh wealth and power lent the less wealthy, older Lower South the necessary confidence to risk a civil war against richer Yankees. The lush new Southwest also pulled away some of South Carolina’s slaves, helping to make that embattled older South desperate enough to provoke secession. By drawing away some of the Border South’s slaves, the lower Louisiana Purchase terrain additionally helped weaken slaveholders in the South’s northern hinterlands. Later, the Louisiana acquisition provided a bridge toward Texas annexation and another mare’s nest of problems. Still later, Louisianans led drives to expand the United States down to the Amazon, thus creating the Caribbean expansion issue of the 1850s. The Louisianans’ Caribbean ambitions helped deter Abraham Lincoln from compromising on slavery’s territorial expansion, during the secession crisis. Folk movements to the Louisiana fragment of the Louisiana Purchase thus helped shape not only a Jeffersonian social nightmare, a greater concentration of blacks, but also the President’s political nightmare, the white men’s republic dissolved in a civil war over slavery. Still, the connection between the purchase and the Civil War is too narrow, when narrowly confined to the Louisiana fragment. The Louisiana Purchase expanse above the Louisiana and Arkansas tropics massively widened the road to disunion. In the nontropical acreage that a slave revolt helped a pacifying president to buy, diffusion worked as if designed by the architect of Monticello. The design thereby helped provoke a civil war far bloodier than the Haiti uprising.

In the long run, the diffusion of white laborers from U.S. northeastern areas figured to monopolize the more northern 85 percent of the purchased terrain. Only the future areas of Louisiana, west of the Lower South, and Arkansas, west of the Middle South, figured to receive many slaves or slaveholders. Farther north and farther from the tropics, the future area of Missouri, located more west of free soil Illinois than of the somewhat enslaved Border South, might receive a dominant slaveholding population—and might not. West of Missouri’s borderlands, the future borderland area of Kansas, did not figure to be friendly to slaveholders. West of future Kansas terrain, the future area of Colorado figured to be more dubious still for slavery. North of this border zone lay the future area of eight states, none with slaveholding prospects. Out of Jefferson’s entire purchase, then, slaveholders’ diffusion never had the potential to gain the slave labor South more than two states below the borderlands, compared to the free labor North’s potential of eight states above the border. Slaveholders could cut their eventual losses from eight to five only by diffusing over all the Louisiana Purchase borderlands: Missouri, Kansas, and Colorado. If, as was mortally certain, free labor diffusion beat slave labor diffusion to Colorado, the North would ultimately gain nine states and the South only four. If, as was only slightly less certain, free laborers diffused to Kansas faster than masters and slaves, the ultimate count against the South would be ten to three. If, as was more likely than not, the northern free labor system also diffused faster to Missouri, the North could gain eleven states and the South but two. Thus, in the long run, the name “Louisiana Purchase” mischaracterizes an acquisition largely unfit for Louisiana-style institutions. Before the purchase, America stood equally balanced between North and South. Each section controlled eight states. East of the Mississippi River and the purchase, the North figured to pick up five additional states and the South four. Unless slaveholders and slaves could amass in at least a couple of non-Louisiana areas west of the great river, the purchase lands would make Yankees overwhelmingly powerful in the federal government, compared to masters in Louisiana’s Deep South latitudes. Or to put it another way, the diffusion of American folk to the Louisiana Purchase borderlands had the potential to pitch the republic either uncomfortably or disastrously against the slaveholders. None of this occurred to anyone in 1803, when men thought that hundreds of years would transpire before the purchase could be settled and no one had heard of Colorado! At first, the purchase’s only impact on the North/South power balance seemed to be the massive strengthening of the Lower South, in the Louisiana fragment. But the future possibilities for northern strengthening amounted to a series of time bombs, ready to explode whenever politicians noticed the potential turnabout. The first time bomb erupted in 1819, in the socalled Missouri Controversy. A despairing Jefferson called the political conflagration a “firebell in the night,” only “hushed for the moment.” It actually took two years’ worth of moments to hush Northerners’ cry that Missouri, with only 16 percent of its people enslaved, must not enter the Union as a permanent slave state. All Missouri slaves born after statehood, Yankees insisted, must be freed at age twenty-five, if they still lived in the state. This so-called post-nati mode of emancipation would have left Missouri

bondsmen born before statehood permanently enslaved. Total liberation would not have come to Missouri until around 1900. Missouri slavery would have been feeble much sooner. Post-nati slaves either would have had to be freed on their twenty-fifth birthday or sold out of state earlier. Sooner or later, that enormous eleven to two maximum northern gain from the purchase would have swamped the slaveholders. In 1819—1821, when the initial fire bell in the night first alerted Americans to the northern Louisiana Purchase’s potential to destroy the sectional balance, Southerners refused to be consigned to future helplessness or to be immediately branded as American pariahs. After massing their still almost equal power in Congress and finding just enough Yankee allies, southern defenders managed to squeeze enslaved Missouri into the Union. But to eliminate the provision for Missouri’s post-nati emancipation, Southerners had to allow the new free state of Maine to be chiseled out of Massachusetts’ domain. Worse, they had to concede that no more slave states would be chiseled out of the Louisiana Purchase borderlands. According to the key provision of this so-called Missouri Compromise, no slaves could diffuse into the nonMissouri portions of the Louisiana Purchase territories that lay north of the 36° 30’ geographic line. That line extended west from Missouri’s southern border. If the 36° 30’ prohibition of slavery permanently endured, both Missouri’s western neighbor, Kansas, and Kansas’s western neighbor, Colorado, would someday become northern prizes. The final count of Louisiana Purchase states would then someday become North ten and the South but three. More likely, the 36° 30’ prohibition would eventually deprive the slaveholders of Missouri too, raising the rout to eleven to two. Missouri slaveholders’ necessity to rid themselves of 36° 30’ damage explains why the Louisiana Purchase shaped the coming of the Civil War more significantly than any other U.S. territorial acquisition. The mid-century clash over slavery in the Mexican Cession territories, for example, shook the Union only once. The Compromise of 1850 ended that territorial question forever. In contrast, latter-day proslavery Missourians reopened Missouri Controversy wounds again and again as the Civil War approached. In early 1854, U.S. Senator Davy Atchison of western Missouri set off the most damaging of the Louisiana Purchase’s more northerly time bombs. Back home in Missouri politics, Senator Atchison dominated the enslaved Missouri River counties, traversing center state and then forming the state’s western edge, across the river from Kansas territory. In this thin line of slaveholder-dominated counties, only around 20 percent of inhabitants were enslaved—a South-wide low for a state’s most slave-infested areas. Worse, nonslaveholding whites dominated almost 90 percent of the state’s terrain—a South-wide high. Worst of all for Davy Atchison’s slaveholding constituents, midwestern whites’ diffusions to Missouri, having reduced the state’s percentage of slaves from 16 to under 10 percent, had established the South’s only antislavery beachhead. In lightly enslaved eastern Missouri and especially in that area’s barely enslaved capital, St. Louis, Frank Blair, Jr., twice won the Slave South’s only antislavery congressional seat in the mid-1850s. The emancipating congressman rose to his unique power by proposing that Missouri laws should force the eventual diffusion of all its slaves southward. Blair’s program fit Jefferson’s design perfectly.

The President had hoped that diffusion inside the Louisiana Purchase, as had happened in Missouri, would so dilute slavery that enlightened reformers could unconvulsively finish off the institution, as had happened in northern states before Jefferson’s presidency. Mr. Jefferson had not figured on the convulsive Mr. Atchison or on convulsive slaveholder determinations to stay the course against diffusion trends. As western Missouri slaveholders’ favorite titan, Atchison represented southwestern parvenus who relished slavery for producing more than race control. These New South capitalists did not even recognize Jefferson’s famous cry: “We have the wolf by the ears, and we can neither hold him or let him go.” The proslavery warriors would not let go of their profits, their pride, their honor, their status as masters of all they surveyed. The more slavery diffused out of their area, the more they would fight to retain their property. Atchison dreaded yet another diffusion, fugitive slaves’ seepage to free territories. Missourians faced free labor neighbors across their Illinois and Iowa borders. If Kansas, right across the Missouri River, welcomed only free soil settlers, as the Missouri Compromise’s 36° 30’ line decreed, Missouri slaves might have too many invitations to run away. In that case too many Missouri slaveholders might be tempted to sell their property southward, making Frank Blair’s diffusion proposals all too palatable. In the U.S. Senate in 1854, Atchison deployed a preemptive strike against Blair’s diffusion. By demanding that the Missouri Compromise be repealed, he sought to obliterate the 36° 30’ line’s barrier to slavery in the Louisiana Purchase borderlands. He would thus open neighboring eastern Kansas for his western Missouri slaveholding constituents to conquer. According to the historical myth, Illinois’ Stephen A. Douglas secured the Kansas-Nebraska Act of 1854. Senator Douglas did secure the law, but only after Atchison secured its provocative shape. Douglas wished simply to open Kansas for settlement. Then the settlers would decide about slavery, as Douglas’s cherished popular sovereignty principle demanded. But since Douglas would discreetly avoid mention of congressional prohibition of slavery in the Missouri Compromise, congressional sovereignty, not settler sovereignty, would decide slavery’s fate west of Missouri. The Missouri Compromise’s 36° 30’ line would remain the law, barring slaveholding settlers from Kansas. Atchison insisted that Douglas’s bill, without Missouri Compromise repeal, would defy Douglas’s popular sovereignty principles. He convinced his Southern Democratic pals that Douglas must be Douglas. The Whigs’ Archibald Dixon took up the cry, thus threatening to steal the territorial issue not only from Douglas but from the Democratic Party. All this pressure forced a very reluctant Douglas to be true to his own dogma. Despite complaining that he would create “a hell of a storm,” Douglas wrote the repeal of the 36° 30’ line for the Kansas and Nebraska Territories into his bill. Douglas and his Democratic Party allies rammed this bill through Congress. They thus authorized previously proscribed western Missouri slaveholders to cross the Missouri River. Atchison’s constituents lived closer to the river than did Yankees. Missourians exploited that initial advantage before many Yankees could arrive. When Kansas territory held its first

elections, Atchison led his so-called Border Ruffians over the river for the day. Missouri’s one-day Kansans won the election, secured the territorial government, and used it to proscribe antislavery settlers. Most congressmen had previously doubted that the less numerous Southerners could snatch such nontropical terrain from the more numerous Northerners. Atchison’s preemptive strike dismissed those doubts. The provocative reality of enslaved Kansas territory, secured in undemocratic ways with undemocratic laws, led straight to Bleeding Kansas, the rise of the Republican Party, Yankee conviction that Slave Power tyranny must be contained, and the congressional Lecompton Controversy of 1857—1858. In that climactic congressional showdown, an aroused North finally and barely denied enslaved Kansas admission into the Union as a slave state. But the close call, the Missourians’ Kansas provocations, and Yankee fears of an aggressive Slave Power helped Lincoln win the White House two years later. South Carolina seceded six weeks after Lincoln’s election. The Civil War began six weeks after his inauguration. While the Kansas uproar provided the upper Louisiana Purchase area’s greatest impetus to Lincoln, secession, and war, the most provocative Supreme Court case and the most disruptive raider also sprang from this hotly contested borderland arena. Dred Scott, the object of the highest court’s major contribution to alienating two warring sections, began as a Missouri slave. For a time, Scott lived with his master in the Louisiana Territory area of future Minnesota. That terrain, located way north of the 36° 30’ line, had been liberated by the Missouri Compromise. Scott asked the Supreme Court to declare him permanently free, in part because of his temporary residence in the free area of future Minnesota. The court denied Scott’s plea because (among other reasons) Congress had acted unconstitutionally in barring slave property from a U.S. territory. A slaveholder’s Fifth Amendment right to the protection of property, decreed the judges, forbad Congress from seizing property of any sort, including property in humans. So the future area of Minnesota should have been slave territory, and the Missouri slave had never lived on constitutionally legitimate free terrain. By keeping Dred Scott in chains partially with this argument, the court also potentially enchained the rising Republican Party. Lincoln’s party’s chief reason for existence, to secure congressional emancipation of all U.S. territories, was apparently as unconstitutional as the Missouri Compromise. The Court’s decision not only enraged the Republicans but also greatly contributed to the National Democratic Party’s shattering. All this turmoil originated with a slave in the Louisiana Purchase’s Missouri who temporarily lived in the Louisiana Purchase’s future Minnesota region. While Dred Scott’s famous case further agitated the warriors over Kansas, John Brown’s famous raid at Harpers Ferry, Virginia, intensified the presecession crisis. Brown, a perpetual failure as a Yankee businessman, found his calling in the Missouri-Kansas zone. There, the Connecticut Yankee learned how ambush could free slaves. After a surprise strike on Missouri netted nine liberated blacks, Brown moved on to the Kansas battlefields, where his midnight strike netted five slain slaveholders.

Next he prepared for the historic 1859 ambush of western Virginia’s federal arsenal. But the lessons learned on Louisiana Purchase terrain proved to be inapplicable in the western Virginia mountains. At Harpers Ferry, John Brown netted no freed slaves, no murdered slaveholders, and only his own body, cut down from the gallows, to come riding home. He left behind a nation convulsed more than ever, this time over a guerrilla warrior trained on Louisiana Purchase grounds. Thus, despite its purchaser’s intention that his bonanza would diffuse slavery and the slavery issue safely outside the white men’s republic, the acquisition became the climactic theater of escalating sectional warfare. The movement of population into the purchased terrain helped to consolidate slave labor in the Lower South and to consolidate free labor in a far more extensive Upper North. In the savage borderland between, population diffusions wrought a frenzied Missouri slaveholder counterattack in Kansas, with its impact sweeping beyond the state. To that firestorm in the middle, the purchase added a bridge toward Texas Annexation, a preliminary stage for John Brown and for Dred Scott, and Louisiana’s shoves toward Caribbean expansion. The prime beneficiary of the North’s outrage, Abraham Lincoln, frowned down compromise, partly for fear of a Caribbean Slave Power. Mr. Jefferson’s acquisition had shaped the slavery issue’s destruction of Mr. Jefferson’s Union. To estimate the impact of any decision, it helps to imagine a history without the provocation. If France had not amazed James Monroe with an offer of well-nigh one million square acres, or if Thomas Jefferson had turned down the offer, and if no subsequent decision had annexed the French-held terrain to the United States, the Mississippi River would have been the permanent U.S. boundary. Then the number of slaveholding and nonslaveholding states would have been roughly balanced. No bridge to Texas Annexation would have been provided. No Louisiana-inspired attempts to seize the Caribbean would have been present. No war would have been fought over Kansas. No Missouri would have provoked the Missouri Compromise, or provided space for Dred Scott to contemplate a lawsuit or for John Brown finally to find a talent. No territories would have existed for a Supreme Court to decide that territorial emancipation was unconstitutional. In short, the Civil War would have been far less likely. Considering the horrendous costs, in lives and cash, of that war, the Louisiana Purchase became an expensive “bargain.” It was like the couple that spent a “bargain” two hundred dollars on a show quality puppy—and then a decade later faced tens of thousands of dollars of veterinary bills. So too an imagined American history without the diffusion/colonization mentality, a worldview itself rooted in America’s racist mentality, would have been utterly different—and might not have required a Civil War to abolish slavery. Just about the entire spectrum of mainstream American leaders, from Jefferson’s time to Lincoln’s, conceived that the white men’s republic could rid itself of slaves only by turning blacks into barely visible, deportable specks. The Purchase showed that the specks would instead become ever more visible and unremoveable, as in Louisiana, and even more productive of political disruption when the specks were diluted, as in Missouri. So after the purchase demonstrated the futility of mainstream America’s only peaceable solution to the slavery problem, what alternative remained except the bloody sword?

Our most recent historical obsession, concerning an apparently unrelated matter, throws perspective on the consuming racial phobia that locked together nineteenth-century American centrists’ every tortured rendezvous with slavery. Whatever one concludes about the still problematic question of whether Thomas Jefferson sired the children of his house slave, Sally Hemings, the alleged affair pointed toward an alternative to slavery that most Americans considered off the table. Whether Monticello’s master or another white Jefferson slept with his mixed race slave, the union epitomized an American mixed race solution, with peoples of all colors intimately intertwined. That North American destiny, had it become the widely accepted middle way between perpetual slavery and coercive emancipation, would have trimmed away the paralyzing baggage of diffusion and colonization as the precondition for abolition. A more nimble American vital center might then have led North America to the South American (and Delaware-Maryland) solution: emancipation without race removal or civil war. That Virginia Slavery Debate of 1832, for example, might have yielded a monumental swerve toward emancipation rather than the continued drift toward disunion, if only the Virginia establishment could have contemplated abolition without removing the free blacks. But apprehensions about unremoved blacks left the American racial moderates powerless to become that vital center. Whatever male Jefferson shared the Jefferson-Hemings affair, the rendezvous demonstrated that a multiracial America so repulsed all the Jeffersons that they buried all the evidence, so deeply that we cannot say for sure which interracial sexual liaison occurred. The related tale of Jefferson’s diffusion prayer, this time all too visible, demonstrates a centrist commitment to a monoracial America so deep that we have trouble even imagining how North American slaveholders would have freed blacks to remain, unless forced to it on horrendous battlefields. We have equal trouble even imagining a U.S. republic that permanently ended at the Mississippi River, or a Thomas Jefferson who turned down the Louisiana Purchase. Both territorial expansion and black removal were such profound American fixtures that a proper conclusion can not even pretend their nonexistence, except as a way to emphasize their inescapable impact. Given that impact, the purchase provides a classic example of the gulf between original intention and ultimate result. Originally, the name “Louisiana Purchase” perfectly fit Jefferson’s intention: to sweep all of France’s North American land, all of it called “Louisiana,” into U.S. hands. Originally, the president most sought security for an expanded white man’s republic of liberty, free from French and Indian assaults. Originally, the president’s dream of diffusing blacks played only a minor part in his motivation for the purchase. But the minor part spawned major consequences. The results of the purchase demonstrated the bankruptcy of Jeffersonian diffusion. The impact of the purchase subjected the slaveholding republic of liberty to far more savage danger, in one of history’s worst civil wars, than any peril from the French or the Indians. The purchase’s climactic damage made even the once appropriate name of the supposed bargain inappropriate, for “Louisiana” came to be only the

tropical state, and the nontropical purchase lands proved more widely disruptive. When one considers the widest damage of the purchase—the proof that Jefferson and the American vital center had no viable solution to the slavery problem, the certitude that slave diffusion to Louisiana made slavery far more entrenched, the evidence that the less tropical purchase areas made slaveholders (and the nation) far more agitated—all of this shattering of the Jeffersonian dream throws ironic light on Jefferson’s greatest presidential success. Seldom has such a triumph as the Louisiana Purchase led so swiftly to such dismay as Thomas Jefferson rightly voiced, when the Missouri Controversy drew back the curtain on the American future. An analysis focused sheerly on the Louisiana Purchase, black diffusion, and the Civil War forces an unbalanced verdict against the purchase and the purchaser. Other, more positive results of American expansion at least somewhat balance the purchase’s shove toward civil war. A corrected balance would be salutary, for politically correct history is careening out of control, especially about poor Mr. Jefferson. A more mature history will someday counterpoise the genius and the flaws of this representative American, who was sometimes marvelously and sometimes dismayingly the essence of his nation. That symmetrical assessment will weigh a wide-ranging architect of bricks and of words and of republics against a narrow-minded apostle of racial separation. Thomas Jefferson had his lily-white vision. He purchased vast lands, in minor part to bleach out the black shadows. He ended up hearing only fire bells in the night, tolling for white republicans who saw only how to enslave another race or to diffuse it out of sight, out of mind, gone from the empire of liberty.

NOTE * This chapter supplements my “The Founding Fathers, Conditional Antislavery, and the Nonradicalism of the American Revolution,” in William W. Freehling, The Reintegration of American History (New York: Oxford University Press, 1994), chap. 2. Against my view that the Founding Father’s stance on slavery was highly ambiguous, see, on the one hand, Gordon S. Wood, The Radicalism of the American Revolution (New York: Vintage, 1993), and, on the other hand, Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson (Armonk, N.Y.: Sharpe, 2001). On the Jefferson-Hemings alleged sexual connection, I again see uncertainty where other scholars emphasize certitude. On the certitude side, see Annette Gordon-Reed, Thomas Jefferson and Sally Hemings: An American Controversy (Charlottesville: University Press of Virginia, 1997) and Peter S. Onuf and Jan E. Lewis, eds., Sally Hemings and Thomas Jefferson: History, Memory and Culture (Charlottesville: University Press of Virginia, 1999). On the uncertainty side, see Thomas Jefferson Foundation DNA Study Committee Minority Report, April 12, 1999, at monticello.org/plantation/hemingscontro/minority_report.html. I trace the history of the territorial controversy from the Founding Fathers through the passage of the Kansas-Nebraska Act in my Road to Disunion. Vol I. Secessionists at Bay, 1776—1854 (New York: Oxford University Press, 1990). The Oxford University Press will publish Road to Disunion’s second volume, taking the story to the beginning of the Civil War, in late 2006 or early 2007. I analyze the issue of “diffusing” African Americans back to Africa

in my Reintegration, chap. 7. Many fine studies illuminate aspects of the Louisiana Purchase territories’ post-purchase involvement in slavery issues. Among the best are Michael Fitzgibbon Holt, The Fate of Their Country: Politicians, Slavery Extension, and the Coming of the Civil War (New York: Hill and Wang, 2004); Michael A. Morrison, Slavery and the American West: The Eclipse of Manifest Destiny and the Coming of the Civil War (Chapel Hill: University of North Carolina Press, 1997); Robert P. Forbes, “Slavery and the Meaning of America, The Missouri Compromise, 1819—1837” (PhD thesis, Yale University, 1994) (soon to be published by the University of North Carolina Press); Alison Goodyear Freehling, Drift Toward Dissolution: The Virginia Slavery Debate, 1831—1832 (Baton Rouge: Louisiana State University Press, 1982); Paul Finkelman, ed., His Soul Goes Marching On: Responses to John Brown and the Harpers Ferry Raid (Charlottesville: University Press of Virginia, 1995); Nicole Etcheson, Bleeding Kansas: Contested Liberty in the Civil War Era (Lawrence: University Press of Kansas, 2004); and Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978).

4 Settling the West: The Annexation of Texas, The Louisiana Purchase, and Bush v. Gore Mark A. Graber How the West was settled is a central theme in American lore and scholarship. The conventional story begins with a trail and a few log cabins in a wilderness. Shortly thereafter, a clearing is made. The first saloon and a small bank are opened. Finally, civilization arrives, officially measured by a community theater that performs Neil Simon plays and a minor league baseball team. Another story about how the West was settled begins with the Louisiana Purchase and explores how agreement was reached over what constitutionally constitutes the United States. National expansion excited numerous constitutional controversies. The Louisiana Purchase raised questions about whether the U.S. Constitution authorized the federal government to acquire territory. The Adams-Onís Treaty of 1819, abandoning American claims to Texas, raised questions about whether the Constitution authorized the federal government to cede territory. The joint resolution annexing Texas raised questions about the constitutionally mandated procedures for acquiring territory and whether the Constitution authorized the federal government to annex a foreign country. These constitutional questions had to be settled in both the short and long term. Americans in 1845 had to decide whether the Constitution permitted Texas to be annexed by a joint resolution of Congress. Representatives who in 1845 declared the joint resolution unconstitutional and void had to decide after 1845 whether they would nevertheless regard Texas statehood as an irremediable constitutional error. Although the Constitution of 1787 provided no clear guidelines for determining whether and how national expansion could take place, the West could be settled only when a broad consensus existed that such constitutionally controversial acts as the Louisiana Purchase, Adams-Onís Treaty, and annexation of Texas could not be repealed or revisited in future electoral campaigns or judicial decisions. Efforts to analogize the process by which the West was settled to the processes by which the constitutional questions that occupy much contemporary scholarship are settled risks

embroiling American constitutionalism in a vicious circle. George W. Bush professes to be a constitutional originalist in the mode of Justices Antonin Scalia and Clarence Thomas.1 Justice Thomas frequently declares that practices inconsistent with the original understanding of the Constitution ought to be unsettled, no matter how ancient their lineage. 2 Good reasons exist for thinking that Texas was never constitutionally annexed.3 If Texas was never a constitutional part of the United States, then George Bush is not constitutionally qualified to be president of the United States and Al Gore gained the majority of constitutionally legitimate electoral votes cast in 2000. Gore insists that “the Constitution ought to be interpreted as a document that grows with our country and our history.”4 This commitment to living constitutionalism is more conducive to acknowledging Texas as constitutionally part of the United States, no matter what the constitutionality of annexation by 1845 standards. If Texas is a state, then George Bush is qualified to be president of the United States and, after Bush v. Gore,5 he won the 2000 presidential election. Thus, acting true to their constitutional principles, President Bush’s first act upon entering office should have been to declare Texas never part of the Union, giving the election to Gore, who should then have declared Texas never out of the Union, giving the election to Bush, and so on. A similar vignette might be constructed by taking seriously Jefferson’s concern that the Louisiana Purchase was unconstitutional.6 The few people who currently think that the status of Texas remains tied to the constitutionality of annexation in 1845 may universally be regarded as “lunatics,”7 but their insanity is to a remarkable degree aided and abetted by the leading schools of contemporary thought on constitutional settlements. Consider two prominent studies by exceptionally distinguished constitutionalists. Larry Alexander and Frederick Schauer insist that the Supreme Court is the institution responsible for settling constitutional questions.8 Louis Michael Seidman maintains that fundamental constitutional questions should remain unsettled.9 Both theories of constitutional settlement, framed with such issues as abortion in mind, lend credence to claims that Texas may not be a constitutional part of the United States. Occasional dicta aside, no judicial decision has ever purported to settle the constitutionality of the Louisiana Purchase, the annexation of Texas, or related measures.10 If judicial review is a means for preventing permanent losers in politics,11 then the distinguished statespersons who raised constitutional objections to the Louisiana Purchase and annexation of Texas are entitled to their long overdue day in court. This essay explores how the West, most notably Texas statehood, was settled. Part of the concern is historical. The following pages call attention to a series of debates over national expansion too long lost from studies of American constitutionalism. Constitutional debate flourished in Jacksonian America in almost every institution but the courts.12 While the Taney Court was occupied with minutia concerning minor state laws that had some impact on interstate commerce, legislative giants in the Senate and House of Representatives debated more fundamental regime questions concerning the power of the national government, the nature of the constitutional regime, and whether fulfilling the American constitutional destiny required that the United States become an “ocean-bound republic.”13 The other concern is theoretical. Existing commentary on constitutional settlements too often focuses exclusively on

the processes necessary for temporarily resolving the constitutional status of such matters as abortion and school segregation at the expense of the processes necessary for permanently resolving the constitutional status of such matters as the American West. As a result, scholars ignore the vital difference between correctable and irremediable constitutional errors, and overlook how enduring constitutional settlements are more rooted in constitutional politics than constitutional law. Settlements take place, not when official law is pronounced, but when persons opposed to that constitutional status quo abandon efforts to secure revision. Such efforts are abandoned for both political reasons and, in the case of national expansion, because of a belief that the issue is best settled, even if not settled right. The judiciary, too often celebrated as the locus of constitutional settlement, played almost no role in settling the West. The West was settled because opponents of the Louisiana Purchase and the annexation of Texas conceded defeat. Critics of American expansion did not acknowledge that the Constitution permitted the United States to acquire territory and annex foreign countries, and they did not think such unconstitutional practices were legitimated by judicial decisions that took place long after settlement. John Quincy Adams and others simply determined that the status of Texas could not and should not be further contested after Congress voted for statehood. This concession was politically and legally significant. The constitutional status of Texas was politically settled when political protests against annexation abated. This political settlement improved the legal foundations for statehood. The overwhelming consensus after 1845 that Texas was a permanent part of the United States entitled Texans and other Americans to act on the assumption that Texas was a permanent part of the United States. This reliance interest was generated by political decisions made by persons who thought the joint resolution unconstitutional to abandon opposition to Texas statehood, not by a specific act that constitutionally settled the status of Texas in the Union.

ORDINARY LEGAL THINKING ON THE CONSTITUTIONAL STATUS OF TEXAS Persons opposed to the annexation of Texas declared that the proposed joint resolution was unconstitutional and, therefore, a constitutional nullity if passed. Representative Samuel C. Sample of Indiana stated, “annexation ... would be void and not obligatory and binding, either upon the States of this Union or upon the people.”14 Representative Edward S. Hamlin of Ohio did “not see how a null and void act can have any effect.” Should the joint resolution pass, “Texas would be no more annexed than it is now.” “The act annexing it,” Hamlin continued, “would be a dead letter, to which life could not be imparted.”15 Several state legislatures passed resolutions denying the legal force of the joint resolution under congressional consideration. State representatives from Massachusetts declared that “such an act of admission would have no binding force.”16 “The state of Connecticut,” state representatives resolved, “can never consent to annex a foreign nation to the Union; and especially will it never consent to stipulate for its admission with the privilege of a slave representation.”17 At least one proponent of Texas statehood agreed that the joint resolution had legal force only if constitutional. Many Jacksonians insisted that Texas was included in the Louisiana Purchase and that the national government was not constitutionally authorized to cede claims to

that territory in the Adams-Onís Treaty of 1819.18 Following the same logic as Sample, Hamlin, and several New England state legislatures, Senator Chester Ashley of Arkansas asserted that the 1819 treaty with Spain was “utterly void, because there was an utter want of power to make such treaties, or enact such laws.” No need existed for annexation, he informed the Senate: “Texas belonged to us; it was an acquisition, and nothing could do away with it.” To those who thought “our long acquiescences and frequent recognition of [Texas independence] will militate against the position assumed,” Ashley responded, “the cession was an act of moral treason against the principles of the constitution and of our free institutions; and any and all recognitions of this gross wrong was but an aggravation of the original wrong.”19 More than one hundred and fifty years later, some Americans fervently endorse these claims about the unconstitutional annexation of Texas and the null force of unconstitutional acts. Members of the Republic of Texas maintain that Texas is presently an independent nation. Devotees insist that Sample and Hamlin were correct to assert that the joint resolution annexing Texas was unconstitutional. “The United States Congress in 1845,” Republic of Texas literature opines, “had no authority from their states or people to annex another nation by contract or resolution.”20 Members further claim that Sample, Hamlin, and Ashley were correct to assert that time does not heal constitutional wrongs. A past leader of the Republic of Texas declares, “[n]o matter how long an unconstitutional action or statute has been enforced and imposed, it is forever unconstitutional and lawfully null and void.”21 Several Texas law professors and scholars have taken to the law reviews to refute these allegations. James W. Paulsen, a professor at the South Texas College of Law, declares the Republic of Texas’s “core claims are demonstrably false”22 in a short essay published by the South Texas Law Review. Ralph H. Brock, a practicing lawyer, has a longer attack in the Texas Tech University Law Review. Paulsen and Brock make no pretense at constitutional sophistication. They and other champions of Texas statehood are ordinary legal thinkers and practitioners who use ordinary legal logics to explain why Texas is constitutionally part of the United States. The ordinariness of their arguments is crucial. If the present constitutionality of Texas statehood can be demonstrated only by elite law professors using hitherto unrecognized constitutional logics, then Republic of Texas members who disagree might be charged with a lack of sophistication but not lunacy. That only lunatics think Texas an independent nation must be demonstrated by a straightforward application of broadly shared principles. Paulsen and Brock give four reasons for regarding Texas as obviously not an independent nation. 1. The Constitution of 1787 plainly authorized Congress to annex a foreign country by joint resolution.23 2. The constitutional status of Texas was settled by judicial decisions establishing that Texas was constitutionally admitted into the Union.24 3. The constitutional status of Texas was settled by principles of international law decreeing that longstanding dominion of a territory without protest establishes legitimate sovereignty.25

4. The constitutional status of Texas was settled by the congressional decision to annex Texas by joint resolution.26 The second argument carries the most weight. Ordinary constitutional thinkers in the United States tend to be judicial supremacists. Constitutional disputes are settled, the ordinary argument for Texas statehood maintains, when a series of judicial decisions clearly establish a particular proposition of constitutional law. “If there was any question about the constitutionality of annexation,” Paulsen writes, “that simply would have raised a question for the United States Supreme Court to decide.”27 Brock similarly asserts, “the Supreme Court is the final arbiter of the question whether an act of Congress is constitutional.”28 Texas is a permanent part of the United States, in this view, because the Supreme Court has repeatedly regarded Texas as a permanent part of the United States. These ordinary arguments for Texas statehood fail for ordinary reasons.29 None rely on uncontested principles of constitutional law. None explain the behavior of the rational persons who from 1836 to 1845 opposed the annexation of Texas. All when applied generally have consequences many ordinary legal thinkers reject. Constitutionalists who rely on the claims presently used to demonstrate Texas statehood might well have concluded that Plessy v. Ferguson 30 and other judicial decisions had settled the constitutional status of school segregation.

Original Authorization The legislators, jurists, and political activists who in 1845 opposed the annexation of Texas repeatedly declared that the national government had no constitutional power to annex a foreign country by a joint resolution of both houses of Congress. Whigs in all sections of the United States maintained that the United States had no constitutional power to annex any territory by a joint resolution. The only constitutional means for adding territory to the United States was a treaty signed by the president and approved by two-thirds of the Senate.31 Many opponents of annexation maintained that the United States had no constitutional power to annex a foreign country by treaty, joint resolution, or any other means. The Louisiana Purchase established that other nations could cede territory to the United States, not that other nations could join the Union as States.32 Some Northerners declared that the United States had no power to annex territory where slavery was legal, particularly when parts of that territory were above the Missouri Compromise line.33 Contemporary proponents of Texas statehood are mistaken when they suggest that objections to annexation overtly based on opposition to the joint resolution and expansionism were smokescreens for the objections based on opposition to slavery.34 Many Northerners who maintained that Texas could not be annexed by joint resolution took more proslavery stands on other constitutional and political issues. Joseph Story, who maintained that “the admission of Texas into the Union would be a grossly unconstitutional act,”35 upheld the constitutionality of the Fugitive Slave Act of 1793 in Prigg v. Pennsylvania.36 Daniel Webster, who helped secure

the Massachusetts resolution condemning annexation,37 fought for the Compromise of 1850.38 Prominent Southerners whose support for slavery cannot be questioned challenged the constitutionality of annexation. Senator Alexander Barrow of Louisiana described the joint resolution as “the most daring and dangerous attempt to desecrate the constitution ever attempted.”39 While sectional concerns were frequently raised during the debates over Texas, legislative divisions were more partisan than sectional. A majority of Whigs in both sections voted against the joint resolution.40 Several arguments against annexation seem particularly strong. Southern Whigs pointed out that a framing generation concerned with preserving a sectional balance of power was unlikely to have sanctioned mere majorities to determine the course of American expansion. “Do you suppose,” Senator William S. Archer of Virginia asked, “that the framers of this wise constitution contemplated a power in the government to throw complete ascendancy into either of these scales.”41 Other opponents noted that immediate annexation of a foreign nation was inconsistent with the constitutional requirement that members of the House of Representatives and Senate be citizens of the United States for seven and nine years respectively before taking office. Representative John P Kennedy of Maryland declared, “Congress cannot make a new State from a foreign nation without first acquiring the territory of the foreign nation, and holding it long enough for its citizens to become endowed with the requisites to make them a State—that is to say, with qualifications essential to give them a representation in Congress.”42 These claims, along with the more general assertion that any agreement with a foreign nation was a treaty that had to be confirmed by a two-thirds vote of the Senate, do not settle the matter. Proponents of the joint resolution pointed out that the Framers rejected language that would have explicitly confined the congressional power to make new states to states arising out of the existing territory of the United States.43 More generally, determining whether the joint resolution is unconstitutional is difficult because prominent Framers kept to themselves whatever thoughts they may have had on national expansion.44 Still, the transsectional appeal of the constitutional case against the joint resolution provides powerful evidence that, at a minimum, reasonable constitutionalists in 1845 could conclude that the joint resolution was unconstitutional.

Settlement by Judicial Decision The constitutional status of Texas is not settled by judicial decision. No Supreme Court decision has specifically held that the joint resolution annexing Texas was constitutional. No argument on the constitutionality of annexing a foreign country by joint resolution has ever taken place before the justices. Brock notes that the Court in Texas v. White asserted that annexation created an “indissoluable relationship,”45 but the justices in that case merely stated that “(t)he Republic of Texas was admitted into the Union, as a State, on the 27th of December, 1845.”46 Brock’s use of Mississippi v. Johnson 47 is more misguided. Chief Justice Salmon Chase cited annexation as an instance where the Supreme Court was not asked to enjoin the president from enforcing what many thought was an unconstitutional act. “The constitutionality of the act for the annexation of Texas was vehemently denied,” his opinion declared, “but no

one seems to have thought of an application for an injunction against the execution of the act by the President.” Far from settling the constitutionality of annexation, Mississippi casts doubt on whether a judicial decision could have resolved the matter. The Supreme Court has indicated that Congress may annex a foreign country by joint resolution only in a single sentence in an opinion concerned with other issues. Territory acquired by conquest or treaty, De Lima v. Bidwell declares, “is acquired as absolutely as if the annexation was made, as in the case of Texas and Hawaii by act of Congress.”48 Such unsupported dictum is not normally considered sufficient to establish any proposition of constitutional law. Judicial precedent cautions against attaching too much legal significance to issues decided without the benefit of argument by counsel. Justice Powell observed that the Supreme Court “owe(s) somewhat less deference to a decision that was rendered without benefit of a full airing of the relevant considerations.”49 Whether the United States may annex a foreign country by joint resolution has never been the subject of debate before the justices. That issue, under conventional understandings of legal precedent, remains undecided. The present precedential support for Texas statehood bears a strong resemblance to the precedential support for segregated schools during the early New Deal. Judicial opinions in the late nineteenth and early twentieth century assumed that Texas was a part of the Union and that Jim Crow education passed constitutional muster,50 but no decision explicitly decided either matter. Plessy v. Ferguson, which approvingly cited a state court decision affirming the constitutionality of separate schools,51 provides far stronger precedential support for segregated education than any judicial decision provides for Texas statehood. If, despite this history, the Supreme Court in Brown v. Board of Education justifiably maintained that past precedents did not establish the constitutionality of segregated schools,52 then lawyers for the Republic of Texas are not violating ordinary principles of American constitutionalism when they maintain that past precedents do not establish Texas statehood. Even a much clearer line of judicial precedents would not suffice by conventional legal logics to settle for all time the constitutionality of the joint resolution annexing Texas. Ordinary and elite constitutional thinkers frequently call on the Supreme Court to overrule lines of precedent far clearer and far more established than the line of precedents supporting Texas statehood. Many social conservatives demand that the Supreme Court overrule Roe v. Wade,53 even though that decision has been repeatedly reaffirmed. Many liberals would have the Supreme Court overturn the countless decisions holding the death penalty constitutional.54 Every tenured professor who teaches constitutional law has probably publicly insisted that the Supreme Court reverse a line of precedents with at least the same constitutional pedigree as the precedents supporting Texas statehood. These pleas sometimes succeed. The Supreme Court in Alden v. Maine (1999)55 abandoned an approach to sovereign immunity dating from Chisholm v. Georgia (1793).56 If the judicial precedents supporting Texas statehood are “obsolete and poorly reasoned,”57 then ordinary legal thought would have those precedents overruled. Whether any series of judicial decisions suffices to settle constitutional questions is also

open to question. Mark Tushnet and Jeremy Waldron are the most recent in a long line of thinkers who question whether the judiciary should have the last or any word on constitutional matters.58 Barry Friedman documents how such attacks on the judiciary have often enjoyed substantial popular support.59 This history and contemporary practice suggests that Republic of Texas members would not venture beyond the fringe should they call on the national legislature to reopen constitutional issues previously decided adversely by courts and legislatures. Questioning judicial power is as distinguished a tradition as thinking Texas a part of the Union. Looking for a judicial settlement of the constitutional issues raised by national expansion is false to American constitutional practice. The Supreme Court did not breathe a word on the annexation of Texas until after the Civil War and did not discuss whether the national government could constitutionally acquire territory until 1828.60 Opposition to the joint resolution and the Louisiana Purchase had long since dissipated. Federal justices were not called upon to settle constitutional questions associated with national expansion because those issues were settled long before relevant cases were argued before the Supreme Court. Chief Justice Chase in Texas v. White assumed that Texas constitutionally joined the Union in 1845 because that was a given by 1868. Proponents of judicial supremacy fail to explain how a constitutionally controversial decision in 1845 shortly thereafter became the settled law of the United States without the aid of any judicial decision.

Settlement by Prescription Prescription settles Texas statehood only from perspectives offered by living constitutionalism. Contemporary international law decrees that a country exercising sovereignty over a particular territory for a long period of time is deemed to have sovereignty, particularly when such sovereignty is exercised with the apparent consent of the natives.61 “[T]he uninterrupted possession of territory or other property for a certain length of time by one State,” the Supreme Court held in Virginia v. Tennessee, “excludes the claim of every other.”62 Acquisitive prescription, however, was far more controversial during the period between ratification and the Civil War.63 Henry Wheaton, when defending the principle, acknowledged that “(t)he writers on natural law have questioned how far that peculiar species of presumption, arising from the lapse of time, which is called prescription, is justly applicable as between nation and nation.”64 Americans during the debates over the annexation of Texas debated the constitutional significance of prescription. Senator William Archer of Virginia referred to ”the great inestimable law of prescription” as supporting his claim that the United States after 1819 abandoned claims to Texas.65 Other senators and representatives rejected prescription, insisting that unconstitutional abandonments had no binding force. The 1819 treaty, future President Andrew Johnson declared, was ”void from the beginning, never vesting Spain, with the shadow of title to the territory and people of Texas.“66 Opponents of Texas annexation also denied prescription when claiming that they would never acknowledge Texas to be a part of the Union.67 Thus, while prescription may compel such living constitutionalists as Al Gore to regard Texas as part of the Union, such purported originalists as George Bush may not be able in good faith to invoke that principle as justifying Texas statehood.

Prescription is false to American constitutional practice. The West was constitutionally settled long before principles of international law warranted settlement. Even if prescription foreclosed Gore’s challenge to the constitutionality of Texas because “152 years after statehood” or “well over a century” “is too long,”68 that principle does not explain why Samuel Tilden in 1876 did challenge the validity of the Louisiana Purchase or why Thomas Jefferson in 1796 did not suggest that Rhode Island in 1791 was unconstitutionally coerced into ratifying the Constitution.69 The status of the Louisiana Purchase and Texas statehood under international law may not have been settled until long after the Civil War, but the validity of these acts was uncontested in American politics long before Lincoln’s election.

Settlement by Congressional Decree The claim that Congress settled the constitutional status of Texas by passing the joint resolution is weak. Contrary to Paulsen, Americans rarely find “hard to swallow” assertions “that the President and a majority of the United States Congress knowingly chose to violate the Constitution.”70 Jefferson did just that when approving the Louisiana Purchase.71 Claims that the government has violated the Constitution appear daily in public discourse, differing only with respect to the issue and an occasional willingness to drop the word “knowingly.” Judicial supremacy is not an uncontested principle of American constitutionalism, but legislative supremacy is the minority view. The central issue in ordinary constitutional discourse is whether legislative decisions on constitutional questions have any constitutional weight. Moreover, Congress has the same power as the Supreme Court to overturn past precedents. The normal legislative prerogative to change its mind calls into question the finality of the joint resolution. Prominent Whigs highlighted the possibility of legislative reconsideration as a reason why Texas could be annexed only by a treaty. “If annexation is affected by act of Congress,” Representative Kenneth Rayner of North Carolina asked, “will it not be repealable like other acts of Congress.”72 Prominent opponents of annexation rejected claims that the congressional vote on annexation settled the constitutional status of Texas. Some Whigs folded their tents when the joint resolution passed,73 but others did not. Conscience Whigs declared annexation “null and void.”74 Representative Julius Rockwell of Massachusetts during the debate over Texas statehood that took place during the fall of 1845 declared, “all that has been done is of no binding force, to compel us here to carry on this measure of annexation.” After repeating the constitutional arguments made against the joint resolution, Rockwell asserted, “all those objections to the annexation of Texas remain in their full force today.”75 These arguments seemed to have had broad appeal. Most representatives who voted against annexation voted against statehood. The subsequent legislative decision to annex Hawaii by joint resolution does not settle the constitutionality of the resolution annexing Texas. Two instances hardly demonstrate the “systematic, unbroken ... practice” necessary to settle a constitutional dispute.76 Throughout American history, treaties have been the preferred means for acquiring territory. Professors Bruce Ackerman and David Golove presently champion joint resolutions,77 but no nineteenth-

century proponent of national expansion asserted the superior constitutional virtues of a joint resolution when support existed to pass both a treaty and a joint resolution. The Texas Minister to the United States was instructed to seek a joint resolution only “in the event that there should be doubts entertained whether a treaty made with this Government for its annexation to the United States would be ratified by a constitutional majority of the Senate.”78 Congress relied on joint resolutions only in the case of Texas and Hawaii, and only when supporters in the Senate lacked the votes necessary to ratify a treaty.79 This practice does more to cast constitutional suspicion on joint resolutions than settle the constitutionality of Texas statehood. The event that politically settled the status of Texas was the favorable vote on statehood in late 1845. After that vote, opposition to annexation ceased in the national legislature. No recorded challenge was made when representatives from Texas took their seats in the House and Senate.80 Politics moved to the threatened war with Mexico, and the constitutional issues raised by proposals to acquire by conquest or treaty additional territory in the Southwest. Ordinary legal thought does not explain why the vote on statehood apparently settled the constitutional status of Texas. No evidence exists that the constitutional arguments against the joint resolution were decisively refuted at some point in 1845. The constitutional need for a treaty seems as plausible today as it did before the Civil War. Antebellum opponents of annexation who frequently declared that they would “never” regard the fruits of the joint resolution to be constitutional81 failed to explain why the vote on statehood was granted authority not given the vote on annexation. Contemporary proponents of Texas statehood are similarly silent. The problem is not that the ordinary legal thinkers who think Texas statehood settled lack the constitutional sophistication necessary to explain why settlement took place after the December vote on statehood rather than the February vote on annexation. Paulsen, Brock, and others have trouble explaining why Texas is a state because they rely on common theories of constitutional settlement whose premises are as lunatic as the Republic of Texas.

THINKING ABOUT SETTLEMENT The problems ordinary legal thinkers have explaining why no reasonable person thinks Texas an independent country are rooted in assumptions commonly made by elite legal thinkers. Elite constitutional theory is more sophisticated than ordinary legal thought. Judicial review and judicial supremacy are more often questioned in faculty symposia than in meetings of local bar associations. Commentary on legitimate constitutional change outside of Article V remains largely confined to university presses and law reviews. Still, ordinary legal discourse is partly derived from more elite commentary as filtered through basic courses on constitutional law and legal methods. Legal practitioners who do not imbibe some version of judicial supremacy are taught that the rules for settling constitutional disputes do not vary by issue. Law students routinely learn that every constitutional question is a question of constitutional law. Nothing in the legal curriculum inspires ordinary legal thinkers to contemplate whether the processes for settling whether Texas is part of the United States differ from the processes for settling whether the Fourteenth Amendment permits school segregation, and whether the processes for the former are better conceptualized as matters of constitutional politics than matters of constitutional law.

Scholars writing on constitutional settlements focus on the judicial responsibility for providing authoritative answers to contested constitutional questions. Larry Alexander and Frederick Schauer insist that constitutional disputes need settlement and the Supreme Court is the institution responsible for settlement. In their view, “the settlement of contested issues is a crucial component of constitutionalism, ... this goal can be achieved only by having an authoritative interpreter whose interpretations bind all others, and . . . the Supreme Court can best serve this rule.”82 Some scholars question the settlement function of constitutionalism and judicial review. “The function of constitutional law,” Michael Seidman maintains, is “to unsettle any resolution reached by the political branches.”83 Other scholars question whether the Supreme Court should bear exclusive responsibility for settling constitutional questions. Neal Devins and Louis Fisher endorse “‘coordinate construction,’ with each branch capable of and willing to make independent constitutional interpretations.”84 These disputes over the role of the federal judiciary are less wide-ranging than much rhetoric suggests. Opponents of judicial supremacy agree that judicial decisions permanently settle the legal rights of the parties before the court. Devins and Fisher regard “[t]he Supreme Court” as “the ultimate interpreter in a particular case.” They object only to the view that the justices also settle “the larger social issues of which that case is a reflection.”85 The canonical citation is to Lincoln’s assertion that Dred Scott settled whether Dred Scott was a slave, just not the constitutional power of Congress to ban slavery in the territories.86 Proponents of judicial supremacy limit judicial authority to “deciding what is to be done now”87 (emphasis added). Alexander and Schauer state that the Supreme Court remains free to change course and that all other political actors are free to do everything short of disobedience to encourage justices to change course. “[W]idespread acceptance of our position,” they declare, “would leave the Supreme Court with sufficient opportunities to reconsider earlier rulings that ought to be reconsidered.”88 Judicial decisions settle present law, not future law. Present law in both a regime of judicial supremacy and a regime of coordinate construction may be unsettled by subsequent judicial decision and, all agree, by constitutional amendment. Scholarship primarily concerned with whether judicial decisions temporarily resolve constitutional questions has little to say about questions raised by national expansion that concern more enduring constitutional settlements. When representatives in 1845 spoke of the constitutional status of Louisiana as settled, they were not referring only to “what is to be done now.” Even those representatives who continued thinking the United States had no constitutional power to acquire territory agreed that the Louisiana Purchase could no longer be repealed by future legislative decree, judicial decision, or constitutional amendment.89 Texas would soon enjoy the same status. Within a year of annexation, Americans of all political persuasions agreed that Texas could no longer be constitutionally excluded from the Union, even if the joint resolution was a gross violation of the Constitution. Settlement constrained the future as well as the present. Louisiana, Texas, and the West were not settled on grounds analogous to the grounds that led Abraham Lincoln to claim Dred Scott settled whether Dred Scott was a slave. No one took the Lincolnian position that ratification of the treaty with France or passage of the joint resolution

settled the constitutional status of Louisiana and Texas, but not the broader constitutional questions associated with national expansion. Opponents of the proposed Louisiana Purchase and proposed annexation of Texas declared that these measures were void as applied to Texas and Louisiana.90 Southern Whigs declared that future legislatures were free to repeal the joint resolution.91 Northern Whigs declared the joint resolution not binding during the debate over Texas statehood.92 Something more than a simple legislative decision or judicial ruling settled the West, and that something resulted in a far more permanent settlement than the more temporary constitutional settlements that presently occupy scholarly attention.

Settling States American constitutional practice recognizes that only some constitutional errors are correctable. Whether persons think the constitutional status of racial segregation settled depends in large part on whether they think previous judicial rulings accurately, or least reasonably, interpreted the Fourteenth Amendment. Citizens in 1954 cared whether Plessy and related constitutional decisions (inside and outside of courts) justifying segregation were right. Constitutional mistakes made when interpreting the equal protection clause, all parties to the debate over Brown acknowledged, were remedial if legally and morally wrong.93 Whether persons think Texas statehood settled does not depend at all on the best interpretation of the treaty power or the congressional authority to admit new states. Few Americans care about the process by which Texas joined the Union. The occasional scholar who questions whether the joint resolution was constitutional thinks such analysis purely academic, having no bearing on the present standing of Texas. Constitutional mistakes made during national expansion, sane constitutionalists agree, are no longer remedial by any constitutional process. The commonsense distinction between the constitutional origins of Jim Crow and the American West reflect broad recognition that, although constitutions may be designed to settle certain political issues,94 different settlements serve different purposes. Some constitutional provisions reflect founding beliefs that a fixed rule is desirable. Entrenchment may facilitate long-term planning, be essential to preserve vital compromises, secure reliance interests, or advance other goals partly independent of the merits of the particular policy or process entrenched.95 The constitutional clause mandating that newly elected congresses assemble “on the first Monday in December” ensures that legislative sessions start at an established time. Entrenching Monday rather than Tuesday was convenient, not an expression of political principle. The three-fifths clause in Article I, Section 2 resulted from a political compromise. Entrenchment was a means to forestall the disruptive political debates that might have taken place had the ratio been subject to free reconsideration. Other constitutional provisions reflect founding beliefs that a particular rule is desirable. The constitutional provision mandating that “No title of Nobility shall be granted by the United States” articulates founding opposition to aristocracy, not a belief that some fixed rule ought to be made on titles of nobility. This constitutional rule on titles was entrenched because the rule was thought particularly good. The constitutional rules on the opening of legislative sessions and the counting of slaves when determining representation were entrenched because entrenchment was thought particularly

good. Interpretive questions of constitutional law are similarly divided (or more accurately, fall on a continuum) between matters that should be settled and matters that should be settled right. Decisions on who won an election are normally considered as settling the matter, even when reflection suggests a constitutional mistake was made. The statute of limitations on all constitutional objections to the 2000 presidential election tolled once George Bush was declared the official winner.96 Decisions about the individual rights protected by the Fourteenth Amendment need not be as decisive. Even pro-choice constitutionalists criticize the plurality’s claim in Planned Parenthood of Southeastern Pa. v. Casey that “the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”97 “Liberty,” in this view, may find “refuge in a jurisprudence of doubt.”98 Debate exists over the constitutionally legitimate ways of reversing Roe, but broad agreement exists that some constitutional means other than constitutional amendment could legitimately make pro-life policies the constitutional law of the land. George W. Bush, however, is the constitutional president, no matter what one thinks of Bush v. Gore. Abortion and related issues should at most be subject to temporary constitutional settlements because instability is not a constitutional problem when disputes rage over matters that all agree should be settled permanently only if settled right. The debate over Roe is a debate over whether particular policies should be entrenched. Few participants in the debate over abortion think whether women have a right to terminate their pregnancies should be settled, even if the actual settlement is a gross constitutional wrong. Proponents and opponents of legal abortion prefer instability to their preferred entrenchment. Pro-life advocates believe superior to the regime inaugurated by Roe v. Wade a regime in which some states ban abortion and others do not, and one in which successful Democratic coalitions repeal bans passed by successful Republican coalitions. Pro-choice advocates believe a regime whose reproduction policies vary by time and place superior to a regime whose settled law forbids abortion. When a matter should be permanently settled only if settled right, diversity and instability are preferable to entrenching the wrong policy. Instability is a constitutional problem only when at least some parties to a constitutional dispute think entrenching a constitutional wrong serves more important constitutional values than keeping open the question of constitutional right. All parties to the dispute over the 2000 election agreed that the person inaugurated in January 2001 should be recognized as the constitutional president of the United States for the next four years, barring death, resignation, or independent ground for impeachment. The numerous persons who thought Bush wrongly decided did not think constitutionally superior to the present regime a regime in which George Bush presided only over some states or one in which he and A1 Gore shared the presidency. Bush v. Gore was not a constitutionally correctable error. Fidelity to the constitutional concern with entrenchment outweighed fidelity to constitutional understandings of equal protection. The Louisiana Purchase and annexation of Texas are even clearer instances of constitutional decisions which, if wrong, were not correctable within a short period after being made.

Bombast aside, antebellum Americans recognized that each successive administration could not consider and reconsider whether Texas was in the Union. At some point shortly after Texas joined the Union, future constitutional decision makers were not free to confess mistake. A profound injustice would presently occur if, after 160 years, constitutional authorities were to declare that, because of an initial flaw in the Texas annexation or statehood process, Texas was actually an independent nation. National capacity for long-term planning and fundamental reliance interests would be destroyed if the composition of the United States was potentially at stake each time the national legislature met or the Supreme Court handed down a decision. These grounds for permanent entrenchment far outweigh the virtues of getting right whether a foreign country can be annexed by a joint resolution of Congress. The settled status of national expansion transcends ordinary constitutional law. Texas statehood is settled both in the temporary sense that no reasonable constitutionalist claims Texas is presently an independent nation and in the more permanent sense that no reasonable constitutionalist would champion a constitutional amendment declaring that any territory annexed by a joint resolution shall henceforth be regarded as an independent nation. Such a proposal might be a clear example of an unconstitutional constitutional amendment, an amendment so inconsistent with fundamental constitutional presuppositions as to be illegitimate even if passed consistently with the processes set out in Article V.99 Most individual rights and other limitations on governmental power do not enjoy nearly this degree of entrenchment. Nothing in Casey or McCulloch v. Maryland100 bars a contrary constitutional amendment declaring that states can regulate abortion or that the federal government has no power to incorporate a national bank. The joint resolution, by comparison, within a short period of time had both Article I and Article V consequences, bringing Texas into the Union and, after statehood, barring any constitutional effort to reverse that decision. The constitutional requirement that no state be deprived of equal representation in the Senate in practice now entails that any jurisdiction once given representation may no longer be denied representation, even if the original reason for representation was a constitutional mistake. Such a principle seems to correctly describe the constitutional status of American expansionism, yet that principle has never explicitly been the subject of any legislation or judicial decision. Ordinary constitutional law does not explain why some constitutional amendments not expressly barred by Article V are nevertheless off-the-wall if not unconstitutional. The constitutional text does not specify what constitutional errors are correctable, the conditions under which constitutional decisions made inside and outside of courts become irrevocable, or even, for that matter, what constitutes a temporary constitutional settlement. The framing debates and judicial decisions provide little help. Cooper v. Aaron101 was about the obligation to obey a judicial decision while that decision was good law. The justices said nothing in that case or in any other ruling about the conditions under which a constitutional mistake may become permanently entrenched. The reason for this official silence may be that more enduring constitutional settlements cannot be fashioned solely by official decisions. Government officials determine what the Constitution officially means in the present. What the Constitution shall mean in the future is determined by whether persons out of power challenge the official constitutional law of their time.

The Constitutional Politics of Settlement Ordinary constitutional thinkers and elite constitutional theorists maintain that official acts settle constitutional disputes. Much debate exists in elite theory over which official acts temporarily settle constitutional controversies.102 Still, Schauer, Alexander, Devins, Fisher, and others agree that only official actions by governing officials settle constitutional disputes. Whether an issue is best settled or best settled right is determined by some combination of elected officials, justices, and other official appointees. Constitutional law assigns no authority to decisions made by persons out of power. This emphasis on governing officials is another consequence of the failure to distinguish between temporary and more permanent constitutional settlements. Only governing officials are authorized to determine “what is to be done now.” Persons who fail to win election or appointment have no authority to determine what the Constitution presently means. Persons out of power, however, are relevant political actors when more enduring constitutional settlements are forged. The extent to which official decisions as a practical and constitutional matter permanently settle constitutional debates depends on how persons opposed to those decisions respond to what they believe is a constitutional wrong. Opponents may choose to keep the constitutional question open, contesting the matter in legislative and electoral fora. Alternatively, they may decide for political or constitutional reasons that what was once an open constitutional question should now be closed. Their practical decision to consider the matter resolved is both a political settlement and helps generate the reliance interests that justify treating the matter as permanently settled constitutionally. Constitutional questions are politically settled when no coalition opposed to the present status quo is likely to triumph in forthcoming elections. That proponents of a particular constitutional position control all three branches of government does not secure their constitutional vision while their political rivals have the capacity to regain power. The constitutional status of the New Deal was settled when the Republican Party accepted the basic contours of the administrative state, not when the federal judiciary abandoned the Commerce Clause and other restrictions on national power. Had Republicans continued to run on platforms dedicated to restoring Hoover administration policies, the New Deal’s constitutionality would have been settled only when electoral returns made clear that such a platform would never again carry a national election.103 Brown was settled politically when southern politicians abandoned calls for segregation. Governing officials may have the power to resolve questions of constitutional law, but persons out of power determine the extent to which these answers settle the constitutional controversy. Political struggles over constitutional meaning are abandoned for several reasons. Crucial political actors may over time agree that a particular settlement is right. Brown v. Board of Education is in no danger of presently being overruled because an overwhelming public consensus now exists that Jim Crow was a constitutional evil. Leading politicians may agree that an issue should be settled, even if not settled right. Gore conceded the 2000 presidential election because he believed the costs of correcting the judicial mistake in Bush too high.

Finally, members of the constitutional minority may conclude that for the foreseeable future they will not have the political support necessary to challenge a mistaken constitutional status quo. The Republican Party during the late 1930s abandoned opposition to the basic contours of the administrative state in order to remain competitive in national elections. These reasons often prove mutually supportive. Some persons may concede that a constitutional status quo cannot be successfully challenged because too many other persons now think the status quo was settled right or should be settled. The longer a matter is settled, the more people are likely to think the matter settled right. Judicial review is a poor vehicle for bringing about the conditions necessary for enduring political settlements of constitutional controversies. Judicial opinions rarely create a strong public consensus that a proposed settlement is right. Studies suggest that controversial judicial rulings tend to intensify constitutional conflicts, inspiring both supporters and opponents of the decision to redouble their political efforts.104 Judicial opinions rarely persuade the losing party that their cause has little political appeal. Pro-life forces who have triumphed repeatedly in national elections have not been moved to forswear opposition to legal abortion merely because they have lost again and again in the judiciary. Judicial decisions may have put the final nail in the laissez-faire coffin, but the 1936 election better explains why Republicans accepted the New Deal than NLRB v. Jones & Laughlin Steel Corp.105 The election of 1964 did far more to scuttle Jim Crow than the Supreme Court. Judicial decisions typically settle political disputes only when prominent political actors previously agreed that the judicial decision would be regarded as authoritative. Such agreements take place. Marylanders in 1819 agreed to stop taxing the national bank if the Supreme Court declared the state tax unconstitutional. 106 These agreements, however, have historically bound only the parties to the deal. McCulloch v. Maryland ended the constitutional dispute between Maryland and the national government, but that decision did little to forestall antibank politics in other states. Northern Democrats honored their agreement to abide by the judicial decision in Dred Scott. Republicans who were not parties to that agreement castigated the Taney Court’s decision.107 Opponents of national expansion recognized that their behavior would determine whether official acts temporarily or permanently settled the West. Those representatives who in 1845 insisted that the Constitution did not vest the national government with the power to acquire territory regarded the status of the Louisiana Purchase and Florida as settled by a “general acquiescence” 108 that went far beyond the constitutional majority of elected officials necessary to ratify a treaty or pass laws. State representatives in Boston grudgingly declared that the Louisiana Purchase was part of the United States only because “the consent of Massachusetts may have been given or inferred to the admission of the States already by general consent, forming a part of the Union, from such territory.”109 This “unanimity of public sentiment”110 entitled all persons to act on the basis that formerly disputed territories were permanent parts of the United States. “(W)e may submit to an unconstitutional act so long, making no efforts for its repeal or overthrow,” Hamlin declared, “until the interests of innocent men have become so interwoven with its existence, as in the case of the Louisiana Purchase,

that its repeal or overthrow would be unjust.”111 This consent was not initially given to the annexation of Texas. Hamlin predicted that should the joint resolution be passed, “there will go up one continued, determined, unceasing cry for repeal, till it is done.”112 This outcry prevented Texans from developing the reliance interests necessary for permanent settlement of Texas statehood. Julius Rockwell emphasized the ongoing agitation against annexation when he declared that the joint resolution did not constitutionally bind future representatives. A congressional decision rejecting Texas statehood would be just, he declared, because “(i)t was well known to everybody in and out of Texas, that great and strenuous objection was made in that Congress against giving that consent [to annexation], and its constitutional power steadfastly denied.”113 The constitutional status of Texas was settled when opponents of annexation abandoned the fight. Hamlin’s prediction of unrelenting opposition proved wrong. Texas was settled for the same reason Louisiana was settled. The issue was no longer contested. Some southern Whigs abandoned the fight as politically too risky.114 A few northern Whigs abandoned the fight before statehood on the ground that the annexation vote had settled matters.“115 Other northern Whigs abandoned the fight after the vote on statehood for reasons not entirely known. What matters is the abandonment, not the reasons. Various Whig decisions to refrain from making further constitutional attacks on the joint resolution established that Texas was not an independent nation. For as long as opponents of annexation remained on the field of battle, the constitutional status of Texas was unsettled and could not be settled, even by a judicial decision or fifty declaring the joint resolution constitutional. What matters from a present constitutional perspective is not the validity of the constitutional reasons Whigs gave for opposition to the annexation of Texas, but the brute fact that they abandoned those constitutional attacks after the vote on statehood. By withdrawing their constitutional and other objections to annexation, opponents of Texas engendered reasonable expectations that Texas would be a permanent part of the United States. All persons could make political and economic plans knowing that the national government would for the foreseeable future regard Texas as a state.“116 Texas statehood no longer depended on the outcome of elections because no social movement that might influence an election was contesting annexation. Politics, not law, initially made Texas statehood immune to partisan assault. As long as powerful opponents of annexation remained in the field, Texans had no more legitimate expectation that statehood was permanent than persons who presently operate an abortion clinic in a socially conservative state can expect their enterprise will survive the overruling of Roe. Reasonable expectations are created by practices of constitutional politics, most notably the willingness of persons to think a constitutional mistake settled, not theories about constitutional law. Rights and statuses depend on the outcome of no election only when those rights and statuses are not challenged during political campaigns. Principles of constitutional law did not compel opponents of annexation to abandon their objection after the vote on statehood. The anti-Texas movement might have folded tents after the vote on annexation. Alternatively, the fight might have been carried to the Supreme Court, the next series of national elections, or for that matter, the oracle at Delphi. No particular

process compelled Texas opponents to concede defeat. On some matters, opponents of slavery never gave up. Neither the Fugitive Slave Act of 1850 nor judicial decisions sustaining that measure weakened political attacks on fugitive slave laws. Texas proved different. Unlike other issues affecting slavery, opponents of annexation concluded after losing several votes that this constitutional issue was best settled, even if not settled right. The West was similarly settled because opponents of national expansion consistently threw in the towel after initial defeats. Their willingness to abide by measures initially described as null and void created a constitutional understanding that constitutional mistakes made when acquiring territory cannot be cured. Once American sovereignty is extended over a territory intended to become a state, that sovereignty cannot be withdrawn merely because the original decision was unconstitutional. This actual practice has normative legal foundations. Entrenching statehood is more important than entrenching individual rights. The costs of instability are higher when states are not entrenched. The costs of mistakes are higher when individual rights are entrenched. Still, the normative force of these arguments depends to a fair degree on whether they describe a political practice. What matters when determining whether a constitutional issue is settled is whether most Americans accept some argument for settlement, not whether most Americans should accept some argument for settlement. Settlement describes a practice of constitutional politics, not a principle of constitutional law.

NATIONAL EXPANSION AND CONSTITUTIONAL THEORY The West was settled by persons who initially opposed national expansion and the annexation of Texas. Proponents of national expansion had the power to pass laws acquiring territories and annexing foreign countries by joint resolutions. Opponents of national expansion had the power to determine whether these decisions would be permanent. They exercised that power by consistently abandoning their objections to additional territories and the means by which those territories were acquired. Elite legal theorists might interpret these withdrawals as subtly amending Articles I and V. Ordinary citizens might simply note that territorial and statehood decisions cannot be revoked. Ordinary legal thought has difficulty explaining how the West was settled because permanent constitutional settlements are more about constitutional politics than constitutional law. This excursion into the process by which the West was settled highlights several important reasons for considering the Constitution outside of the courts. The first, noted in the introduction to this volume, is that jurocentric constitutional law presents an incomplete picture of constitutional development. From the removals debate of 1789 to the impeachment debates of 1998, numerous constitutional controversies have taken place outside the courtroom. 117 In Jacksonian America, scarcely any constitutional question arose that was converted into a judicial question.118 The presidential veto power, internal improvements, and the annexation of Texas were only a few of the constitutional controversies that arose and were settled to some degree by nonjudicial officials.119 As Michael Kent Curtis demonstrates, the post—Civil War Constitution was largely structured in light of prewar constitutional debates over free speech and other rights that took place almost entirely in the legislative branches of government.120

The above analysis also suggests how constitutional theory has been skewed by a focus on the constitutional issues that routinely come before courts. As Keith Whittington astutely points out, claims that the judiciary is necessary to settle constitutional issues fail to acknowledge how numerous constitutional issues that need to be settled never come before the judiciary.121 Claims that all constitutional issues should be unsettled, while plausible with respect to the constitutional issues that routinely come before the judiciary, seem highly implausible with respect to the constitutional issues associated with national expansion. The very debate over which combination of government officials decide constitutional questions, appropriate when the issue is “what is to be done now,” ignores the political and legal dynamics necessary for more permanent settlement of the constitutional questions raised by the Louisiana Purchase and the annexation of Texas. This chapter is largely a first pass at how constitutional theory might incorporate the constitutional issues raised by national expansion. My analysis suggests that, rather than think in terms of settlement in general, we need to explore the different reasons why entrenchment is appropriate in some constitutional areas, making important distinctions between issues that should be settled and issues that should only be settled right. Constitutional analysis of more permanent settlements may roam outside of courts and outside of elections to informal decisions made by persons seeking future power to determine official constitutional meetings. These speculations, at best, require substantial revision and, at worse, are wrong. The fundamental insight, nevertheless, seems correct. A constitutional theory unresponsive to the questions raised by the Louisiana Purchase and annexation of Texas is no more justifiable than a constitutional history that does not discuss national expansion.

NOTES 1 See Jim Drinkard and William M. Welch, “Rivals Present Contrary Views on Key Issues,” USA Today, October 4, 2000. 2 Camps Newfound Owatonna v. Town of Harrison, 520 U.S. 564, 636 (1997) (Thomas, J., dissenting) (urging the justices to abandon Commerce Clause doctrine dating from the Marshall and Taney Courts); Eastern Enters v. Apfel, 524 U.S. 498, 538—39 (1998) (Thomas, J., concurring) (urging the justices to reconsider Calder v. Bull, 3 U.S. 386 (1798)). 3 See analysis that follows. 4 Neil A. Lewis, “Presidential Candidates Differ Sharply on Judges They Would Appoint to Top Courts,” New York Times, October 8, 2000. 5 531 U.S. 98 (2000). 6 Gore wins if, in addition to Texas, the votes of any other constitutionally dubious state are tossed. This includes all states west of the Mississippi (Constitution gives the United States no power to acquire territory), Florida (same), and Rhode Island (coerced into joining the Union in 1791). Gore wins 164 to 111 if only states and territories as of 1789 are included. North

Carolina (14 for Bush) should also be added, but a good case might be made that Rhode Island (4 for Gore) was unconstitutionally coerced into ratifying the Constitution. Bush gained 74 electoral votes from the Louisiana Purchase, 25 from the annexation of Florida, 12 from the Mexican War, 3 from the purchase of Alaska, and 32 from the annexation of Texas. Gore gained 39 from the Louisiana Purchase, 59 from the Mexican War, and 4 from the annexation of Hawaii. In short, on any plausible constitutional theory that rejects some aspect of American expansionism (it is impossible to generate a theory by which Louisiana, Florida, and Texas are good, but gains from the Mexican War bad), Gore wins the 2000 election. 7 See Molly Ivins, “Hopelessness Sparks Militancy,” San Antonio Express-News, May 2, 1997 (describing members of the Republic of Texas who believe that Texas was never a constitutional part of the United States). 8 See Larry Alexander and Frederick Schauer, “On Extrajudicial Constitutional Interpretation,” 110 Harvard Law Review 1359 (1997); Larry Alexander and Frederick Schauer, “Defending Judicial Supremacy: A Reply,” 17 Constitutional Commentary 455 (2000). 9 Louis Michael Seidman, Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review (New Haven, Conn.: Yale University Press, 2001). 10 See pp. 89—91, below. 11 Seidman, Our Unsettled Constitution. 12 See Mark A. Graber, “Resolving Political Questions into Judicial Questions: Tocqueville’s Thesis Revisited” 21 Constitutional Commentary 485 (2004). 13 Congressional Globe, 28th Cong., 2d sess., app., 68 (speech of Stephen Douglas). 14 Congressional Globe, 28th Cong., 2d sess., app., 72. 15 Congressional Globe, 28th Cong., 2d sess., app., 377. See Congressional Globe, 28th Cong., 2d sess., app., 354 (speech of Senator Miller); Congressional Globe, 28th Cong., 2d sess., app., 396 (Representative Winthrop). 16 Congressional Globe, 28th Cong., 1st sess., app., 760. 17 Congressional Globe, 28th Cong., 2d sess., app., 402. 18 See, for example, Congressional Globe, 28th Cong., 2d sess., app., 105 (speech of Dean); Congressional Globe, 28th Cong., 2d sess., app., 222 (speech of Andrew Johnson); Congressional Globe, 28th Cong., 2d sess., 158. 19 Congressional Globe, 28th Cong., 2d Sess., app., 284.

20 Lauren Lynn Savage, “The True History of the United States & Texas,” www.texasrepublic.org/lauren.html 21 Brock, “The Republic of Texas Is No More: An Answer to the Claim that Texas was Unconstitutionally Annexed to the United States,” Texas Tech University Law Review 67 9, 736 (1997) (quoting Richard McLaren). See Paulsen, “If at First, You Don’t Secede: Ten Reasons Why the “Republic of Texas” Movement is Wrong,” 38 South Texas Law Review 801, 810 (1997). Brock, “The Republic of Texas,” 683. Lest these arguments from the annexation of Texas fall on deaf ears, the Republic of Texas also maintains that Texas was never constitutionally readmitted into the Union after the Civil War. Savage, “The True History of the United States & Texas.” 22 Paulsen, “If at First,” 803. 23 Paulsen, “If at First,” 803—5; Brock, “The Republic of Texas,” 724—28; Peter C. Salaverry, “Republic of Texas: Flawed Logic and the Wrong History” Texas Law, May 19 1997, p. 36. 24 Paulsen, “If at First,” 806; Brock, “The Republic of Texas,” 729—33. 25 Paulsen, “If at First,” 810—13; Brock, “The Republic of Texas,” 733—42. 26 Paulsen, “If at First,” 805—6; Brock, “The Republic of Texas,” 728—29. 27 Paulsen, “If at First,” 806. See Paulsen, “If at First,” 809 (“[t]he United States Supreme Court is the ultimate arbiter of the Constitution”). 28 Brock, “The Republic of Texas,” 729. 29 Ordinariness is again crucial to the argument. Republic of Texas assertions might be considered lunatic if the status of Texas can be straightforwardly decided from broadly accepted premises, even though some elite law professor has an intriguing theory demonstrating that Texas is really not part of the union. 30 163 U.S. 537 (1896). 31 See, i.e., Congressional Globe, 28th Cong., 2d sess., app., 378—81 (Rives); Congressional Globe, 28th Cong., 2d sess., app., 215—16 (Seymour); Congressional Globe, 28th Cong., 2d sess., app., 410—11 (Rayner). 32 See, i.e., Congressional Globe, 28th Cong., 1st sess., app., 682 (Jarnigan); Congressional Globe, 28th Cong., 2d sess., app., 298—99 (Kennedy); Congressional Globe, 28th Cong., 2nd sess., app., 336—37 (Hudson). 33 See Congressional Globe, 28th Cong., 2d sess., app., 377 (Hamlin); Congressional Globe,

28th Cong., 1st sess., app., 377 (Giddings); Congressional Globe, 28th Cong., 2d sess., app., 395 (Winthrop). 34 See Paulsen, “If at First,” 805. 35 Joseph Story to Ezekiel Bacon, April 1, 1844, in William Wetmore Story, The Life and Letters of Joseph Story (Freeport, N.Y.: Books for Libraries Press, 1971), 2:481. 36 41 U.S. 539 (1842). 37 Story, The Life and Letters of Joseph Story, 2:509—10. 38 See Congressional Globe, 31st Cong., 1st sess., app., 271—74 (speech of Daniel Webster). 39 Congressional Globe, 28th Cong., 2d sess., app., 391. See Congressional Globe, 28th Cong., 2d sess., 358 (Crittenden); Congressional Globe, 28th Cong., 2d sess., app., 327—28 (Archer); Congressional Globe, 28th Cong., 2d sess., app., 383—86 (Berrien). 40 William W. Freehling, The Road to Disunion: Secessionists at Bay 1776—1854 (New York: Oxford University Press, 1990), 443—8. 41 Congressional Globe, 28th Cong., 2d sess., app., 329. See Congressional Globe, 28th Cong., 2d sess., app., 382 (Rives); Congressional Globe, 28th Cong., 2d sess., app., 386 (Berrien); Congressional Globe, 28th Cong., 2d sess., app., 392 (Barrow); Congressional Globe, 28th Cong., 2d sess., app., 279 (Morehead). 42 Congressional Globe, 28th Cong., 2d sess., app., 298. See Congressional Globe, 28th Cong., 2d sess., app., 315 (Marsh); Congressional Globe, 28th Cong., 2d sess., app., 388 (Dayton). 43 See, for example, Congressional Globe, 28th Cong., 2d sess., 246 (Walker); Congressional Globe, 28th Cong., 2d Sess., app., 234—36 (Woodbury). 44 See William M. Wiecek, The Sources of Antislavery Constitutionalism in America (Ithaca, N.Y.: Cornell University Press, 1977), 114. 45 Brock, “The Republic of Texas,” 732. 46 Texas v. White, 74 U.S. 700, 722 (1868). 47 Mississippi v. Johnson, 71 U.S. 475, 500 (1866). 48 De Lima v. Bidwell, 182 U.S. 1, 196 (1901) 49 Monell v. Department of Social Servs., 436 U.S. 658, 709 n.6 (1978) (Powell, J.,

concurring). 50 See Cumming v. County Board of Education, 175 U.S. 528 (1899); Gong Lum v. Rice, 275 U.S. 78 (1927). 51 Plessy v. Ferguson, 163 U.S. 537, 544 (1896) (citing Roberts v. City of Boston, 59 Mass. 198 (1849)). 52 Brown v. Board of Education, 347 U.S. 483, 491 (1954) (“the validity of the doctrine itself was not challenged”). 53 410 U.S. 113 (1973). 54 See Callins v. Collins, 510 U.S. 1141, 1142—1159 (1994) (Blackmun, J., dissenting). 55 527 U.S. 706. 56 2 U.S. 419. 57 Paulsen, “If at First,” 808—9. 58 Mark Tushnet, Taking the Constitution Away from the Courts (Princeton, N.J.: Princeton University Press, 1999); Jeremy Waldron, Law and Disagreement (New York: Oxford University Press, 1999). See also Sanford Levinson, Constitutional Faith (Princeton, N.J.: Princeton University Press, 1988). 59 See Barry Friedman, “The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy,” 73 New York University Law Review 333 (1998); Barry Friedman, “The History of the Countermajoritarian Difficulty, Part II: Reconstruction’s Political Court,” 91 Georgetown Law Journal 1 (2002); Barry Friedman, “The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner,” 76 New York University Law Review 1383 (2001); Barry Friedman, “The History of the Countermajoritarian Difficulty, Part Four: Law’s Politics,” 148 University of Pennsylvania Law Review 971 (2000); Barry Friedman, “The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part V,” 112 Yale Law Journal 153 (2002). 60 See American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511 (1828). 61 But see Brock, “The Republic of Texas,” 735 (noting that some commentators dispute the legitimacy of acquisitive prescription). 62 Virginia v. Tennessee, 148 U.S. 503, 524 (1893) (quoting Wheaton’s International Law). 63 Brock, “The Republic of Texas,” 735.

64 Virginia v. Tennessee, at 524. 65 Congressional Globe, 28th Cong., 2d sess., app., 693. 66 Congressional Globe, 28th Cong., 2d sess., app., 222. For similar remarks, see Congressional Globe, 28th Cong., 2d sess., app., 105 (Dean), 284-85 (Ashley); Congressional Globe, 28th Cong., 2d sess., 158 (Hammett). 67 See pp. 86—87, below. 68 Paulsen, “If at First,” 811; Brock, “The Republic of Texas,” 736. 69 See John P. Kaminski, “Rhode Island: Protecting State Interests,” in Ratifying the Constitution, ed. Michael Allen Gillespie and Michael Lienesch, 382—86 (Lawrence, KS: Lawrence University Press of Kansas, 1989). 70 Paulsen, “If at First,” 805—6. 71 Thomas Jefferson to John C. Breckinridge, August 12, 1803, Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York: Library of America, 1984). See Thomas Jefferson to Wilson Cary Nicholas, September 7, 1803, Writings, 1140 (“[o]ur peculiar security is in possession of a written Constitution. Let us not make a blank paper by construction”). Jefferson’s Constitution did not contemplate new territories. The third president wrote, when I consider the limits of the U S are precisely fixed by the treaty of 1783, that the Constitution expressly declares itself to be made for the U S, I cannot help believing the intention was to permit Congress to admit into the Union new States, which should be formed out of the territory for which, & under whose authority alone, they were then acting. 72 Congressional Globe, 28th Cong., 2d sess., app., 411; Congressional Globe, 28th Cong., 2d sess., app., 382 (Rives); Congressional Globe, 28th Cong., 2d sess., app., 391 (Barrow). 73 See Kinley J. Brauer, “The Massachusetts State Texas Committee: A Last Stand against the Annexation of Texas,” 51 Journal of American History 214, 214—17, 225, 226 (1964). 74 Brauer, “Massachusetts State Texas Committee,” 218 (quoting a resolution of the Massachusetts State Texas Committee). 75 Congressional Globe, 29th Cong., 1st sess., app., 51. 76 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring).

77 Bruce A. Ackerman and David Golove, “Is NAFTA Constitutional?” 108 Harvard Law Review 799, 834—35 (1995). See Paulsen, “If at First,” 806. 78 Brock, “The Republic of Texas Is No More,” 688 (quoting J. Pinckney Henderson to Memucan Hunt, December 31, 1836). 79 For Hawaii, see Wm. A. Dunning, “Record of Political Events,” 13 Political Science Quarterly 364, 370 (1898). 80 See Congressional Globe, 29th Cong., 1st sess., 553, 566, 952. 81 See, for example, Congressional Globe, 28th Cong., 2d sess., app., 377. 82 Larry Alexander and Frederick Schauer, “On Extrajudicial Constitutional Interpretation,” 110 Harvard Law Review 1359, 1359 (1997). See Larry Alexander and Frederick Schauer, “Defending Judicial Supremacy: A Reply,” 17 Constitutional Commentary 455 (2000). 83 Seidman, Our Unsettled Constitution, 8. 84 Neal Devins and Louis Fisher, “Judicial Exclusivity and Political Instability,” 84 Virginia Law Review 83 (1998). For a particularly effective critique of Alexander and Schauer and defense of coordinate construction, see Keith E. Whittington, “Extrajudicial Constitutional Interpretation: Three Objections and Responses,” 80 North Carolina Law Review 773 (2002). Whittington is the rare scholar who analyzes constitutional settlements outside the courts. See Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, Mass.: Harvard University Press, 1999). Much of what follows is inspired by Professor Whittington’s seminal work. 85 Devins and Fisher, “Judicial Exclusivity,” 96. 86 Abraham Lincoln, The Collected Works of Abraham Lincoln, ed. Roy Basler (New Brunswick, N.J.: Rutgers University Press, 1953), 3:255. 87 Alexander and Schauer, “On Extrajudicial Constitutional Interpretation,” 1377. 88 Alexander and Schauer, “On Extrajudicial Constitutional Interpretation,” 1386. 89 See Congressional Globe, 28th Cong., 1st Sess., App. p. 707; Congressional Globe, 28th Cong., 2nd Sess., App. p. 79; Congressional Globe, 28th Cong., 2nd Sess., p. 281. 90 For Louisiana, see Annals of Congress, 11th Cong., 3d sess., 525—41 (Josiah Quincy of Massachusetts); Annals of Congress, 8th Cong., 1st sess., 58 (Tracey of Connecticut). 91 See footnotes 66-67, above, and the relevant text.

92 See footnotes 74-75, above, and the relevant text. 93 Those scholars who think Brown constitutionally wrong but irreversible do so because they believe the result morally right. See Christopher Wolfe, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (New York: Basic, 1986), 380 n. 52. 94 Alexander and Schauer, “On Extrajudicial Constitutional Interpretation,” 1359. 95 The canonical article on the virtues of entrenchment is Stephen Holmes, “Precommitment and the Paradox of Democracy,” in Constitutionalism and Democracy, ed. Jon Elster and Rune Slagstad (New York: Cambridge University Press, 1988). 96 Outright fraud or certain forms of coercion may present other issues. 97 505 U.S. 833, 867 (1992) (opinion of O’Connor, Kennedy, and Souter, JJ.). 98 The paraphrase is from Casey, at 843 (opinion of O’Connor, Kennedy, and Souter, JJ.). 99 For a discussion of unconstitutional constitutional amendments, see Walter F. Murphy, “Merline’s Memory: The Past and Future Imperfect of the Once and Future Policy,” Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton, N.J.: Princeton University Press, 1995). 100 17 U.S. 316 (1819). 101 358 U.S. 1 (1958). 102 See footnotes 82—84, above, and the relevant text. 103 Or, as recent events suggest, only temporarily settled. 104 See Charles Franklin and Liane C. Kosaki, “Republican Schoolmaster: The U.S. Supreme Court, Public Opinion, and Abortion,” 83 American Political Science Review 751 (1989). 105 301 U.S. 1 (1937). 106 See Mark A. Graber, “The Passive-Aggressive Virtues: Cohens v. Virginia and the Problematic Establishment of Judicial Power,” 12 Constitutional Commentary 67, 86 (1995); Dwight Wiley Jessup, Reaction and Accommodation: The United States Supreme Court and Political Conflict 1809—1835 (New York: Garland Publishing, 1987), 191. 107 See Mark A. Graber, “Desperately Ducking Slavery: Dred Scott and Contemporary Constitutional Theory,” 14 Constitutional Commentary 271, 285 (1997). 108 Congressional Globe, 28th Cong., 2d sess., app., 132 (Rathburn). See Congressional

Globe, 28th Cong., 1st sess., app., 682 (Jarngin); Congressional Globe, 28th Cong., 2nd sess., app., 79 (Caleb B. Smith); Congressional Globe, 28th Cong., 1st sess., app., 707 (Giddings). 109 Congressional Globe, 28th Cong., 1st sess., app., 760. 110 Congressional Globe, 28th Cong., 2nd sess., app., 79 (Caleb B. Smith). 111 Congressional Globe, 28th Cong., 2nd sess., app., 377. 112 Congressional Globe, 28th Cong., 2nd sess., app., 377. 113 Congressional Globe, 28th Cong., 1st sess., app. 51. 114 See Freehling, The Road to Disunion, 445—46. 115 Brauer, “Massachusetts State Texas Committee,” 225. 116 Secession complicates this a bit. 117 See especially, Whittington, Constitutional Construction. 118 See Graber, “Tocqueville’s Thesis Revisited.” 119 See, for example, Gerald N. Magliocca, “Veto! The Jacksonian Revolution in Constitutional Law,” 78 Nebraska Law Review 205 (1999). 120 Michael Kent Curtis, Free Speech, “the People’s Darling Privilege”: Struggles for Freedom of Expression in American History (Durham, N.C.: Duke University Press, 2000). 121 Whittington, “Extrajudicial Constitutional Interpretation,” 804—8.

5 Texas David P. Currie Louisiana was easy, despite President Jefferson’s qualms. As Treasury Secretary Albert Gallatin said, the United States had express authority both to make treaties and to admit new states.1 The whole reason the central government was established was to conduct foreign affairs, and the states were forbidden to make treaties at all.2 It seems inconceivable the Framers intended that nobody could make treaties respecting the vast range of subjects then understood to be beyond federal legislative power. The inescapable conclusion is, as the Supreme Court has since held, that with Senate consent the president may make treaties on “any matter which is properly the subject of negotiation with a foreign country.”3 The acquisition of territory plainly fell within this description; nations had been ceding and acquiring territory by agreement since time immemorial.4 None of this was doubted when Florida was acquired by the Adams-Onis (Transcontinental) Treaty of 1819.5 An ugly little spat had ensued nine years earlier, however, when President Madison moved into what was then called West Florida—a narrow strip of Gulf coast between Pensacola and New Orleans—which he insisted was a part of Louisiana. This incident raised issues not of federalism but of separation of powers—not the nation’s right to acquire territory but the president’s authority to employ armed force.6 In the Transcontinental Treaty, Spain abandoned its claims to both East and West Florida. More important for present purposes, over the violent objection of House Speaker Henry Clay, the treaty drew the boundary between the United States and Spanish territory at the Sabine River, the western limit of the state of Louisiana. Beyond lay, among other things, Texas—a land of as yet indeterminate extent to which the United States had a more or less tenuous claim under the Louisiana Purchase that Adams deemed expendable to obtain a clear title to Florida and the relinquishment of Spanish pretensions to Oregon.7 The sequel is familiar. The United States annexed Texas by joint resolution in 1845, simultaneously admitting it to statehood.8 As Professor Graber writes elsewhere in this volume, annexation was the subject of fierce constitutional debate, and the opponents had a

strong case—once again, I think, as a matter not of federalism but of separation of powers. Professor Graber has adumbrated the arguments against annexation in the course of taking the case of Texas as a springboard for discussing the transcendent jurisprudential problem of when and how constitutional questions come to be considered settled. I agree with him that there is a class of questions whose resolution must be considered final—in both a normative and a descriptive sense, I should say. I also agree that Texas statehood is among them, for the consequences of reopening it would be intolerable. That does not mean, however, that the Texas controversy also settled the abstract question whether Congress may acquire territory by joint resolution, any more than, for Abraham Lincoln, the Dred Scott decision settled the question whether Congress could ban slavery in the territories9—or any more than the now uncontested accession of Rhode Island and West Virginia settled that Congress may admit future states by force or fraud.10 The appeal in each case is to res judicata, not stare decisis; what is settled is not the general principle but the particular case. It is not too late, in other words, to reconsider the question whether territory may be annexed by joint resolution. Even if it were, the issue would be worthy of discussion for its inherent intellectual and historical interest; and of course the relevant arguments will be found to bear on any number of modern controversies respecting the effect of the treaty clause as a limitation on other methods of reaching agreements with foreign nations.11 I therefore propose to address the annexation of Texas as an original constitutional conundrum unencumbered by the distinct inquiry whether it would be either imaginable or appropriate to reopen it today.

THE FACTS The events separating the U.S. disclaimer of Texas in 1819 and its annexation in 1845 can be quickly recounted. Mexico rebelled against Spain, and the United States recognized its independence; Texas became part of the Republic of Mexico. Eager for settlers in its vast northern regions, the Mexican government invited immigrants from the United States. As might have been foreseen, it was not long before Texas was dominated by expatriates from this country, and not much longer before Texas rebelled against Mexico and set up as an independent nation. After the usual delay to ensure that the new nation was strong enough to maintain its independence, President Jackson recognized the Republic of Texas in 1837.12 Even before Texas was recognized as independent, there had been talk of making it a part of the United States. Jackson and Van Buren had squelched such talk as premature; annexation might lead to war with Mexico, which still claimed the rebellious province as its own.13 Interest in annexation grew, however, especially in the South; for Texas, unlike Mexico, permitted slavery. Expansion, as numerous orators would soon proclaim, was America’s manifest destiny.14 President Tyler, a Southerner himself, embraced annexation as his next great goal. Daniel Webster, who was loath to see slavery extended, left the cabinet in 1843. To replace him (after Webster’s first successor had died and his second been blown to bits in a freak accident) Tyler turned to that most Southern of Southerners, John C. Calhoun, who promptly made the case for annexation a case for the defense of slavery.15

Opposition stiffened measurably. Tyler’s annexation treaty, submitted to the Senate in April 1844, failed to garner even a simple majority, let alone the two-thirds approval the Constitution required.16 The president decided to make an end run around the Constitution: if the Senate would not approve annexation by treaty, perhaps Congress would achieve it in some other manner—for, said Tyler, “the power of Congress is ... fully competent in some other proceeding to accomplish everything that a formal ratification of the treaty could have accomplished.”17 In apparent anticipation of Senate disapproval of the treaty, South Carolina Senator George McDuffie (a close associate of Calhoun) had already proposed the following extraordinary joint resolution, which conveniently required only the majority of a quorum in each house: Resolved, that the compact of annexation made between the executive government of the United States and that of Texas, and submitted to the Senate for confirmation by the President of the United States, be, and the same is hereby, ratified as the fundamental law of union between the United States and Texas, as soon as the supreme executive and legislative power of Texas shall ratify and confirm the said compact of annexation.18 Once the treaty was voted down, McDuffie’s resolution was the order of the day. Missouri Senator Thomas Hart Benton, who had opposed the treaty, denounced the resolution for what it was: part and parcel of the president’s attempt to appeal the Senate’s decision to the House of Representatives.19 But the session was rapidly nearing its end, and McDuffie’s resolution was tabled—in order, Senator William Woodbridge of Michigan suggested, “to give time for the public judgment to act” on the question.20 Both Henry Clay and Martin Van Buren, presumptive presidential candidates of the dominant parties, had spoken out against annexation.21 In response the Democrats chose Polk over Van Buren, and the electors chose Polk over Clay.22 Tyler, still in the White House, took these events as public endorsement of annexation,23 and so did Congress. Abandoning McDuffie’s overly blatant invitation to Congress to usurp the Senate’s prerogative, the resolution as adopted said nothing of annexation and nothing of Tyler’s agreement. Its operative provision was a tintype of earlier enabling acts looking toward the admission of new states: Congress doth consent that the territory properly included within, and rightfully belonging to the Republic of Texas, may be erected into a new State, to be called the State of Texas, with a republican form of government, to be adopted by the people of said republic, by deputies in convention assembled with the consent of the existing government, in order that the same may be admitted as one of the States of this Union.24

Texas duly adopted a state constitution and accepted the conditions laid down in the joint resolution; in December 1845 President Polk signed a second resolution declaring Texas “one of the United States of America.”25

TREATIES AND WARS Annexation by treaty seemed obviously appropriate, if there was to be annexation at all. The acquisition of territory, as I have said, was a traditional subject of international agreement, plainly of mutual concern to both parties. Thus it clearly fell within the Framers’ purpose to lodge negotiations with other nations, which unmistakably affected the interest of the whole country, in federal hands.26 The United States had acquired territory by treaty before. Occasional reservations (including Jefferson’s) expressed at the time of the Louisiana Purchase had been feeble if not feigned to begin with, and those who revived them during the Texas controversy seemed half-hearted; no one was about to raise questions about Louisiana or Florida.27 There were some who argued that Texas was different. No nation could extinguish its own sovereignty; a treaty required two parties, and by making this agreement Texas ceased to exist.28 This argument was unpersuasive: what Texas had the right to do under its own constitution (or in the teeth of it) was irrelevant to the scope of the U.S. treaty power, and there was nothing in the nature of a treaty to require that there be two parties after as well as before the agreement. Private contracts commonly provide for the merger of two companies in which one or both of the initial parties is dissolved. As proponents of annexation pointed out, the eminent European commentator Vattel had confirmed that one nation might agree to become part of another, citing Roman examples.29 New Hampshire Senator Levi Woodbury provocatively suggested that Rhode Island had done just that by its tardy ratification of the Constitution.30 That was debatable; others would deny that Rhode Island’s initial refusal to ratify had rendered it foreign (as Congress’s coercive imposition of import duties seemed to imply).31 Vermont, soon to be cited as precedent for annexation without benefit of treaty,32 was no help here for that very reason. But the Constitution expressly contemplates intergovernmental agreements in which one party consents to its own dissolution: under Article IV, Section 3, new states may be “formed by the junction of two or more States,” provided their legislatures agree. The best precedent, however, may be that by which the thirteen original states agreed to surrender portions of their sovereignty by forming the Union.33 That was what Texas would do in the proposed treaty, except that it contracted with the existing Union instead of with its other members. In terms of the extinguishment of sovereign rights the result was precisely the same.34 More serious, I think, was the argument that annexation meant war. Only Congress, Article I said, could declare war.35 It followed, it was argued, that only Congress could do anything that was likely to precipitate hostilities.36 Henry Clay had made a similar argument with respect to recognition of former European colonies in Latin America;37 I have explored the question in connection with President Monroe’s saber-rattling doctrine;38 the modern student is reminded of the second President Roosevelt’s audacious lend-lease program that preceded our entry into

World War II.39 If the president (with or without Senate approval) can freely provoke other nations into making war against us, there is nothing left of Congress’s intended monopoly of the decision whether or not to go to war. Some opponents of the treaty put the argument still more sharply: since Texas and Mexico were already at war, annexation would not simply risk hostilities; it would make the United States party to an existing war without congressional consent.40 Appropriately, it was Clay himself—who had left the Senate temporarily in 1842—who fired the opening gun in his famous “Raleigh letter” of April 1844. “Annexation and war with Mexico,” Clay declared, “are identical.” All wars were “great calamities, to be avoided, if possible.” But the question in his view was not simply one of expediency: [I]s it competent to the treaty-making power to plunge this country into war, not only without the concurrence of, but without deigning to consult Congress, to which, by the Constitution, belongs exclusively the power of declaring war?41 Senator Benton, from the other side of the political divide, took up the cudgel, proposing that the Senate formally resolve that ratification would adopt “the Texian [sic] war with Mexico” and that “the President and Senate have no right to make war, either by declaration or adoption.”42 Proponents of annexation denied there was any ongoing war or any significant risk of a new one.43 President Tyler himself, however, told Congress that Mexico had threatened war if Texas joined the United States and that he had warned Mexico it was high time its war with Texas came to an end.44 He dismissed the former as bluster and the latter as nothing but “predatory incursions.” 45 Yet he seemed also to suggest that it was not important whether annexation meant war. Not only would it be intolerable for the United States to permit Mexico to “control its policy ... toward Texas”; it would be intolerable for “the Executive” to do so.46 Illinois Senator Sidney Breese was blunter still: it was true that the president and the Senate could not declare war by treaty, but they could acquire territory; and if war was the consequence, that was just too bad.47 I don’t know how this argument strikes you, but I find it rather chilling. If Congress’s monopoly of the decision to go to war is to mean anything, Clay and Benton must be right that there are limits to the power of the president and the Senate to take steps otherwise within their authority when they are likely to lead to war. At the very least it seems to me that, under the circumstances that existed in 1844, annexation was a good case in which to follow the wise counsel offered by President Jackson at the time the more innocuous step of recognizing Texas was first proposed: if recognition would “probably lead to war,” both expediency and “the spirit of the Constitution” suggested that it not be undertaken without “a previous understanding” with Congress, “by whom war can alone be declared.”48

STATEHOOD Once his treaty was defeated, that was just what Tyler proposed: Congress should decide whether or not to annex Texas. At that point the objection that annexation meant war ceased to be of constitutional dimension. Thus when Tyler in December 1844 flatly asked Congress to authorize annexation even if war resulted49 he was talking to the right audience: as Benton had argued in opposing the treaty, it was Congress that ought to decide whether to incur the risk of hostilities. Nor was there any mystery as to the source of Congress’s alleged authority to make Texas a state by joint resolution; for Article IV, Section 3, expressly provided that “[n]ew States may be admitted by the Congress into this Union.”50 There was no constitutional requirement, proponents argued, that Texas first be acquired before it could be admitted to statehood.51 Annexation was necessary and proper to admission;52 Texas could be acquired and admitted at the same time.53 Neat, wasn’t it? And of course territory could be acquired without agreement; nearly everyone acknowledged it could be taken by force.54 The difficulty was that no one suggested that Texas be annexed without its consent.55 The joint resolution provided that Texas should be admitted to the Union provided its people decided to erect a new state with a republican constitution and its present government agreed.56 “What is it that this resolution proposes,” asked Georgia Senator John Berrien, “but to make a contract with Texas?”57 Thus when Texas opted for statehood it concluded an agreement with the United States, and Article II seems to say that such agreements must be approved by two-thirds of the senators present. For “whatever requires the consent of another nation,” Calhoun himself had once said, could be effected only by treaty.58 Not so, proponents responded; it had long been understood that not every international agreement was a treaty. Congress had authorized the president alone to enter into postal conventions as early as 1792;59 the Constitution itself distinguished between “treaties,” which the states were flatly forbidden to conclude, and “compacts,” which they could make with congressional approval. 60 But no one suggested that the acquisition of vast territories was so trivial, proprietary, or commercial as not to fall within the Framers’ concern that significant entanglements be subjected to the restraint of heightened scrutiny. As Virginia Senator William Archer said, it was a matter of high political significance,61 and it created a real risk of international complications. Thus the argument was not that the United States could acquire Texas only by treaty; it was that the joint resolution Congress adopted demanded agreement between the two countries, and Article II required that agreement to be confirmed by a two-thirds vote in the Senate. Annexation in this form was a grave infringement of the Senate’s constitutional prerogative in foreign affairs. 62 But we have not yet exhausted the constitutional perplexities the resolution raised. Most notably, the resolution provided that Texas might at any time divide itself into as many

as five separate states.63 Amazingly, there was no recorded debate on this remarkable provision.64 Of course Congress would be free under Article IV, with the consent of Texas, to admit additional states formed out of its territory. But the resolution attempted to empower the state to multiply unilaterally, like a paramecium; the question was whether Congress could give blanket consent in advance to the state’s proposal. The right to consent does not always include the right to consent in advance. Courts are more prone to uphold a waiver of procedural rights in the context of a pending proceeding than in a contract provision embracing all future litigation.65 I am inclined to think the Framers expected Congress to consider each application for statehood on its merits, not to surrender its intended check by rubber-stamping the unknown. In any event, no other state was given a comparable privilege before or since; Texas’s purported right to quintuple its quota of senators cannot be squared with the equalfooting doctrine so effectively asserted in defeating the proposal that Missouri’s admission be conditioned on a renunciation of slavery and later adopted by the Supreme Court.66 No one objected, moreover, when the resolution was amended to require that slavery be prohibited in any state so admitted from territory north of the Missouri Compromise line of 36° 30’.67 The Compromise applied only to areas acquired by the Louisiana Purchase; the Texas provision extended its line westward. Nor did the proviso merely reassert Congress’s authority, exemplified by the Compromise itself, to ban slavery in the territories; like the Missouri proposal that Congress had rejected in 1820, it imposed a condition on the admission of new states. Southern apologists for the extension of slavery would soon have the unenviable task of explaining it away.

CONCLUSION As other chapters in this volume demonstrate, constitutional questions about expansion did not end with the annexation of Texas. Most immediately, although the annexation and admission of Texas were safely settled, its boundaries were not. Out of that boundary dispute arose the Mexican War, which brought us yet another vast domain stretching to the Pacific Ocean—as well as yet another great legislative debate over presidential and congressional war powers in which Abraham Lincoln, as a one-term Representative from Illinois, first attracted national attention.68 Fifty years later the Spanish-American War led to the acquisition of a number of insular possessions and another massive congressional debate culminating in the famous Insular Cases with their controversial distinction between “incorporated” and “unincorporated” territories.69 All these contretemps over expansion raised the basic question, where is the United States (and who is within it?). As we have seen, they also raised a medley of constitutional problems ranging from federalism and separation of powers to basic rights. Texas was the first case to raise the question of how the United States can absorb new territory, and (while I am as happy as anyone that Texas is a part of the Union) I think it came out badly as a matter of constitutional law; I would not disturb the decision, but I would not like to see it followed as a precedent. Texas is unique in other ways too, not least in that there were serious constitutional

questions about its adherence to not one but two confederacies. Rhode Island and West Virginia, as I have noted, share with Texas a blemished pedigree as members of the United States, but neither ever essayed to join a second Union. Nor do I allude to the fact that from the Yankee point of view the self-styled Confederate States of America were a confederation among states expressly forbidden by Article I, Section 10 of the U.S. Constitution. That was an arguable blemish shared by either ten or twelve additional Southern states, depending on whether you count Kentucky and Missouri, which I must admit had individual problems of their own. As it took disregard of the treaty clause to get Texas into the United States, however, it took a coup d’état to get it into the Confederacy, for Governor Sam Houston refused to play ball and had to be extraconstitutionally deposed. I shall discuss these other vagaries at another time and place; annexation and admission are quite enough for today.70

NOTES 1 U.S. Const. art. II, § 2; art. IV, § 3; Gallatin to Jefferson, January 13, 1803, in Henry Adams, ed., Writings of Albert Gallatin (New York: Antiquarian Press, 1960) (first published in 1879), 1:113. 2 U.S. Const. art. I, § 10. 3 See, for example, Geofroy v. Riggs, 133 U.S. 258, 267 (1890). See also Missouri v. Holland, 252 U.S. 416, 435 (1920), holding the treaty power not limited to matters on which Congress might legislate. 4 See David P. Currie, The Constitution in Congress: The Jeffersonians, 1801—1829 (Chicago: University of Chicago Press, 2001), chap. 4. 5 8 Stat. 252 (February 22, 1819). 6 See Currie, The Jeffersonians, chap. 7. 7 For the treaty provisions see 8 Stat. at 254—56, art. 3. See also Samuel F. Bemis, John Quincy Adams and the Foundations of American Foreign Policy (New York: Knopf, 1949), 321—40; Currie, The Jeffersonians, 193—94n17. The 1819 boundary was confirmed by a separate treaty with newly independent Mexico in 1828. 8 Stat. 372, 374, arts. 1, 2 (January 12, 1828). 8 There were actually two resolutions. The first laid down the conditions on which Texas would be annexed and admitted; the second declared the terms accepted and the operation completed. 9 Speech at Chicago, July 10, 1858, in Paul M. Angle, ed., Created Equal? The Complete Lincoln-Douglas Debates of 1858 (Chicago: University of Chicago Press, 1958), 26, 36—37; see David P. Currie, Descent into the Maelstrom (Chicago: University of Chicago Press, 2005), chap. 7.

10 For Rhode Island see David P. Currie, The Constitution in Congress: The Federalist Period, 1789-1801 (Chicago: University of Chicago Press, 1986), 97—100; for West Virginia see Vasan Kesavan and Michael S. Paulsen, “Is West Virginia Unconstitutional?,” 90 California Law Review 291 (2002). 11 See, for example, United States v. Belmont, 301 U.S. 324 (1937) (upholding an executive agreement by which the United States assumed Soviet claims against its citizens); the Trade Act of 2002, 19 U.S.C § 3801 (August 6, 2002) (authorizing the president to enter into certain trade agreements with congressional approval); American Law Institute, Restatement 3d, Foreign Relations, § 301 (1987) (taking a broad view of the authority to make international agreements apart from the treaty power); John C. Yoo, “Law as Treaties?: The Constitutionality of Congressional-Executive Agreements,” 99 Michigan Law Review 757 (2001) (concluding that the political branches continue to resort to treaties in matters of great political import). 12 See Jackson’s message of December 21, 1836, in James D. Richardson, A Compilation of the Messages and Papers of the Presidents (Washington, D.C.: U.S. Congress, 1900), 3:265, 267—68 [hereafter cited as Richardson, A Compilation], opining that the time was not yet ripe and concluding, as a matter of “expediency,” that whenever recognition created a serious risk of war the president should not act without “a previous understanding” with Congress; ibid., 281—82 (March 3, 1837), finding in an appropriation to bankroll a diplomatic agent “whenever the President ... may receive evidence that Texas is an independent power and shall deem it expedient” and in a Senate resolution finding no “reasonable prospect” of reconquest by Mexico “a virtual decision of the question submitted by me to Congress” and accordingly nominating a chargé d’affaires. 13 See Richardson, A Compilation, 265, 268 (December 21, 1836) (Jackson), noting with conspicuous reserve that Texas had resolved to seek admission to the Union once it was recognized by the United States; ibid., 483, 488—89 (December 3, 1838) (Van Buren), (observing that Texas’s formal application had been declined and then withdrawn); Secretary of State Forsyth’s 1837 letter to Texas envoy Memucan Hunt (S. Doc. 341, 28th Cong, 1st sess. 112, 114), rejecting annexation in part because of “the question of war” with Mexico. See also Robert V. Remini, The Life of Andrew Jackson (New York: Harper & Row, 1988), 309—14. 14 See Frederick Merk, Manifest Destiny and Mission in American History (New York: Vintage, 1966). 15 For the whole story see Justin H. Smith, The Annexation of Texas (New York: Macmillan, 1919); for Calhoun’s famous letter to British Minister Richard Pakenham (April 18, 1844), see S. Doc. 341, 28th Cong, 1st sess., 50; Clyde N. Wilson, ed., The Papers of John C. Calhoun (Columbia: University of South Carolina Press, 1988), 18:273 [hereinafter referred to as The Calhoun Papers]. See also William W. Freehling, The Road to Disunion: Secessionists at Bay, 1776—1854 (New York: Oxford University Press, 1990), 1:353—452; Glyndon G. Van Deusen, The Jacksonian Era (New York: Harper & Row, 1959), 176—83; Merrill D.

Peterson, The Great Triumvirate: Webster, Clay, and Calhoun (New York: Oxford University Press, 1987), 344—48. 16 U.S. Const. art. II, § 2. For Tyler’s message on submitting the treaty to the Senate see Richardson, A Compilation, 4:307 (April 22, 1844). Sixteen Senators voted for the treaty; thirty-five (including seven Democrats and all but one of the twenty-nine Whigs) voted against it. Cong. Globe, 28th Cong., 1st sess., 652 (June 8, 1844); see Van Deusen, The Jacksonian Era, 186. The rejected treaty is printed in S. Doc. 341, 28th Cong., 1st sess., 10 (1844) and in The Calhoun Papers, 18:215. Calhoun’s letter, Senator Benton wrote later, “made the annexation a sectional and a slavery question, and insured the rejection of the treaty.” Thomas Hart Benton, Thirty Years’ View; or, A History of the Working of the American Government for Thirty Years, from 1820 to 1850 (New York: D. Appleton & Co., 1854); 2:590. 17 Richardson, A Compilation, 4:323; Cong. Globe, 28th Cong., 1st sess., 662 (June 10, 1844). This message was sent only two days after the Senate had rejected the treaty. 18 Cong. Globe, 28th Cong., 1st sess., 661. 19 Cong. Globe, 28th Cong., 1st sess., app., 568—69. See also Albert Gallatin to David Dudley Field, December 17, 1844, in Adams, Writings of Albert Gallatin, 2:605—6; Daniel Webster to Robert C. Winthrop, December 21, 1844, Charles M. Wiltse, ed., The Papers of Daniel Webster: 6 Correspondence (Hanover, N.H.: University Press of New England, 1984), 64: “[T]he two Houses cannot, by majorities, ratify Treaties, because Treaty-making power belongs, exclusively, to the President & Senate.” Benton offered a bill of his own to authorize the president to negotiate for annexation on specified terms, which meant to start all over. Cong. Globe, 28th Cong., 1st sess., app., 568. 20 Cong. Globe, 28th Cong., 1st sess., 661. 21 Clay suggested that annexation by treaty would be unconstitutional; Van Buren thought it merely inexpedient. Clay’s letter is quoted below; Van Buren’s (to W. H. Hammet, April 20, 1844) is printed in Arthur M. Schlesinger, Jr., ed., History of American Presidential Elections, 1789—1968 (New York: Chelsea House Publishers, 1971), 1:822. 22 For one brief review of the 1844 election (stressing the importance of the annexation question), see Glyndon G. Van Deusen, The Life of Henry Clay (Boston: Little, Brown, 1937), 366—75. 23 Fourth Annual Message, Richardson, A Compilation, 4:334, 344-45 (December 3, 1844): A controlling majority of the people and a large majority of the States have declared in favor of immediate annexation.... The two Governments having already agreed through their respective organs on the terms of annexation, I

would recommend their adoption by Congress in the form of a joint resolution or act to be perfected and made binding on the two countries when adopted in like manner by the Government of Texas. 24 5 Stat. 797, § 1 (March 1, 1845). Cf., inter alia, the Ohio Enabling Act, 2 Stat. 173, § 1 (April 30, 1802). Why the Texas authorization was labeled a joint resolution rather than a statute was never explained; except in the case of appropriations (which under Article I, § 9 must be made by “law,” see Charles Francis Adams, ed., Memoirs of John Quincy Adams, vol. 11 (Philadelphia: Lippincott, 1876)), it seems to make no difference. To pacify Senator Benton, who otherwise would have opposed the resolution, Congress appended as an option (“if the President ... shall ... deem it most advisable”) Benton’s own proposal (Cong. Globe, 28th Cong., 2d sess., 244) that the president be authorized to reopen negotiation with Texas on the terms of admission. 5 Stat. at 798, § 3. Not surprisingly, Tyler ignored this cumbersome alternative. See Van Deusen, The Jacksonian Era, 190-91. 25 9 Stat. 108, § 1 (December 29, 1845). Those conditions included cession of military facilities but not of other public lands. 5 Stat. at 797—98, § 2 Second. 26 Unless restrained by other constitutional provisions, said Georgia Senator John M. Berrien, “the treaty-making power . . . , granted in general terms, embraces all those objects which had been ordinarily subjected to its exercise in the intercourse of nations.” Cong. Globe, 28th Cong., 1st sess., app., 701. Once foreign territory was acquired, Berrien continued, Congress could either govern it (nota bene) or admit it to statehood under the express terms of Article IV. Ibid. 27 For Louisiana see Currie, The Jeffersonians, 95—101; for Florida see ibid., 193—94n17. For 1844 arguments against the acquisition of territory by treaty see Cong. Globe, 28th Cong., 1st sess., app., 682 (Sen. Jarnagin); ibid., 707 (Rep. Giddings); Cong. Globe, 28th Cong., 2d sess., 108 (Rep. C. B. Smith); ibid., 177 (Rep. Pollock); ibid., at 303—04 (Sen. Choate); Cong. Globe, 28th Cong., 2d sess., app., 56 (Rep. J. R. Ingersoll); ibid., 347—48 (Rep. Barnard); ibid., 367 (Rep. Severance); ibid., 394 (Sen. Winthrop). For the convoluted contention that territory could be acquired by treaty only when incidental to conquest, spending to promote the general welfare, or the admission of states, see Senator Archer’s committee report, S. Doc. 79, 28th Cong., 2d sess. (1845), passim. The Supreme Court had confirmed the power to acquire foreign territory in American Ins. Co. v. Canter, 26 U.S. 511, 542 (1828). 28 See Cong. Globe, 28th Cong., 1st sess., app., 684 (Sen. Jarnagin); Cong. Globe, 28th Cong., 2d sess., 109 (Rep. Owen). Both Massachusetts senators sought to distinguish Louisiana and Florida on the ground that they had been colonial possessions while Texas was an independent nation, but neither said at the time why it mattered. Cong. Globe, 28th Cong., 2d sess., 304 (Sen. Choate); Cong. Globe, 28th Cong., 2d sess., app., 395 (Sen. Winthrop) (quoting an 1837 letter of Secretary of State Forsyth (S. Doc. 341, 28th Cong., 1st sess. 112, 113—14) raising this question in rejecting an earlier Texas request for annexation). Choate had

apparently developed the point into the argument given in the text during the debate on the treaty itself. See Cong. Globe, 28th Cong., 1st sess., 539 (Sen. Breese, restating and rebutting Choate’s contention). Jarnagin further argued that no treaty could be made with Texas because that state had not established its independence from Mexico. Ibid., 684. President Jackson, on the advice of the Senate, had found to the contrary. 29 See Cong. Globe, 28th Cong., 1st sess., app., 522 (Rep. Belser); ibid., 538 (Sen. Breese); ibid., 558 (Sen. Sevier); ibid., 722 (Sen. Buchanan); M. D. Vattel, The Law of Nations , Joseph Chitty, ed. (Philadelphia: P.H. Nicklin & T. Johnson), book I, §§ 193—94 See also Cong. Globe, 28th Cong., 1st sess., app., 530 (Sen. McDuffie): “If [Texas] is a sovereign power, she certainly possesses the right to dispose of herself as she pleases.” 30 See ibid., 764. 31 See Cong. Globe, 28th Cong., 2d sess., 361 (Sen. Crittenden); Cong. Globe, 28th Cong., 2d sess., app., 398 (Sen. Huntington) (adding that New York and Virginia did not become foreign simply because nine other states had ratified before them). See also ibid., 392 (Sen. Barrow) (ridiculing the notion that North Carolina, which like Rhode Island had initially rejected the Constitution, was foreign). Nor was Rhode Island’s unilateral acceptance of what Congress interpreted as Article VII’s standing offer to join the “more perfect Union” a treaty in the usual sense, but for purposes of the argument that no sovereign nation could extinguish itself it was essentially the same. For the story of Rhode Island’s ratification see Currie, The Federalist Period, 97—100. 32 See text at note 61—62. 33 See Cong. Globe, 28th Cong., 1st sess., app., 704 (Sen. Berrien): I do not doubt that two independent nations may unite for certain purposes, retaining their sovereignty and separate independence. That is the case of the Swiss Cantons, and of our own former Confederacy. Nor do I doubt that the people of those nations might form a more perfect union, by constituting a government which, for certain purposes, would be sovereign over all, while for others the separate sovereignty of each would be left unimpaired. That is our own present condition. Neither is it necessary to deny that the people of two States may form a union, in which the sovereign rights of the one may be yielded to the other. 34 Putting aside the question whether the Senate had standing to complain that Texas authorities had exceeded their authority under the Texas constitution, Berrien’s objection was nevertheless sobering. The people might dissolve a sovereign state, but their mere agents could not: “Would he escape the imputation of lunacy who should assert the power of the

President and Senate to surrender the sovereignty of these United States to any foreign State?” Cong. Globe, 28th Cong., 1st sess., app., 704. 35 U.S Const. art I, § 8, cl. 11. 36 See, for example, Cong. Globe, 28th Cong, 1st sess., app., 685 (Sen. Jarnagin): The President and Senate have no right to make war; they cannot, therefore, rightfully enter into a treaty, the direct effect of which is war, and gives to another nation a right of war against us, or assumes a war pending. Cf. the much later War Powers Resolution, 50 U.S.C. §§ 1541(c) (1973), which declares Congress’s understanding that under the Constitution troops may not be sent into situations involving a significant risk of hostilities without congressional authorization, except in response to an attack on the United States. 37 See Currie, The Jeffersonians, 201. So did Albert Gallatin, years afterward, in urging that if Congress suspended the treaty provision for joint occupation of Oregon it warn the President not to assume exclusive jurisdiction without authorization by statute or treaty: because “the power to make war is exclusively vested in Congress,” the president should not on his own initiative “perform any act towards a foreign power or its subjects which such power has declared it would resist.” Gallatin to Gales & Seaton, February 27, 1846, in Adams, Writings of Albert Gallatin, 2:621, 624. 38 Currie, The Jeffersonians, 208—09. 39 See 40 Op. A.G. 58, 61—63 (May 23, 1941). 40 If the United States annexed Texas, said Senator Berrien, “Mexico ... will be at war with one of the territories of this Union.” Cong. Globe, 28th Cong, 1st sess., app., 703 (quoting Secretary of State Forsyth’s 1837 letter (see note 13) rejecting an earlier request for annexation on this ground). See also ibid., 479, 573 (Sen. Benton); Albert Gallatin, Peace with Mexico (1847), in Adams, Writings of Albert Gallatin, 3:555, 562. Berrien disclaimed any argument that the adoption of an existing war made the treaty unconstitutional; his point was that ratification would be a breach of treaty, neutrality, and “national honor.” Cong. Globe, 28th Cong, 1st sess., app., 702—4. See Treaty between the United States of America and the United Mexican States, April 5, 1831, Art I, 8 Stat. 410: “There shall be a firm, inviolable, and universal peace ... between the United States of America and the United Mexican States.” 41 Clay to the Editors of the National Intelligencer, April 17, 1844, in James F. Hopkins et al., eds., The Papers of Henry Clay (Lexington: University of Kentucky Press, 1991), 10:41, 43—44. Clay added that he thought it inadvisable as a matter of policy to introduce “a new

element of discord and distraction”: “I do not think Texas ought to be received into the Union ... in decided opposition to the wishes of a considerable and respectable portion of the Confederacy.” Ibid., 44. Two months later, in his “Second Alabama letter,” Clay explained that he would welcome annexation if it could be accomplished “without dishonor—without war, with the common consent of the Union, and upon just and fair terms.” Clay to Thomas M. Peters and John M. Jackson, July 27, 1844, ibid., 89, 91. In September of the same year he reaffirmed that, those conditions not having been met, he remained “decidedly opposed to the immediate annexation of Texas to the United States.” Clay to the Editors of the National Intelligencer, September 23, 1844, ibid., 122, 123. 42 Cong. Globe, 28th Cong., 1st sess., app., 474. John Quincy Adams offered a parallel resolution in the House: Resolved, that any attempt by the President of the United States to place them in a state of actual war with any foreign nation with or without the consent of the Senate would be a flagrant usurpation of the powers exclusively delegated to the House of Representatives. Cong. Globe, 28th Cong., 1st sess., 664. See also Cong. Globe, 28th Cong., 1st sess, app., 695 (Sen. Archer), conceding that the president and the Senate could constitutionally make an alliance with a belligerent with knowledge that war might follow but denying that a treaty could annex a country at war. 43 “[S]ince the battle of San Jacinto,” said Senator McDuffie, “Mexico has not made a single military movement towards recovering her lost dominion.” Cong. Globe, 28th Cong., 1st sess., app., 530. “Border forays, marauding expeditions, thefts and robberies,” Senator Breese added, “may occur; but such acts do not constitute a war, as understood and practised by civilized nations.” Ibid., 541. See also ibid., 551—52 (Sen. Walker, quoting an 1842 diplomatic dispatch by Secretary of State Webster); ibid., 559 (Sen. Sevier); ibid., 724 (Sen. Buchanan); ibid., 769 (Sen. Woodbury). Both Buchanan (ibid., 726) and Woodbury (ibid., 768) attempted to turn the fact that no treaty could declare war into an argument in favor of annexation: the United States could not be at war until Congress said so. In so doing they lost sight of the purpose of the constitutional provision, which was to spare the country the pains of combat without congressional approval. 44 See Richardson, A Compilation, 4:343; ibid., 261—62. Moreover, said Senator Berrien, both Texas and Mexico considered themselves at war; it was not for the United States to disagree with them. Cong. Globe, 28th Cong., 1st sess., app., 703. For Mexico’s threat see Mexican Foreign Minister J. M. de Bocanegra to U.S. Minister Waddy Thompson, August 23, 1843, S. Doc. 341, 28th Cong., 1st sess., 341, 342 (“[T]he Mexican government will consider equivalent to a declaration of war against the Mexican Republic the passage of an act for the incorporation of Texas with the territory of the United States.”); Mexican envoy J. N. Almonte

to Secretary of State Abel Upshur, November 3, 1843, ibid., 94, 95 (“[T]he Mexican Government is resolved to declare war so soon as it receives information of such an act.”). 45 Richardson, A Compilation, 4:343, 261. 46 Ibid., 262, 343. 47 Cong. Globe, 28th Cong., 1st sess., app., 542. See also ibid., 552 (Sen. Walker): [H]as it come to this, that the treaty power is expunged from the constitution, or can never be exercised, because, if we ratify a treaty, however just, or expedient, or necessary, we may be threatened with war, or it may follow as a consequence? ... [T]he constitutional power of the Senate to ratify or reject a treaty, does not depend upon the fact, whether a war may or may not follow directly as a consequence. Representative Owen drew a more subtle distinction: annexation was proper because it would not give Mexico just cause for war. Ibid., 699. 48 Richardson, A Compilation, 3:265, 267 (December 21, 1836). For a similar suggestion during the annexation controversy, see Cong. Globe, 28th Cong., 1st sess, app., 695 (Sen. Archer). 49 Richardson, A Compilation, 4:352, 356 (December 10, 1844): By adopting that measure the United States will be in the exercise of an undoubted right; and if Mexico, not regarding their forbearance [to seek redress for Mexico’s insults to their “national honor”], shall aggravate the injustice of her conduct by a declaration of war against them, upon her head will rest all responsibility. 50 Like the question of acquisition, that of admitting states from outside the original boundaries of the United States had been debated and laid to rest at the time of the Louisiana Purchase; nothing was added during the Texas debates to cast doubt on Congress’s earlier conclusion. See Currie, The Jeffersonians, 101—3; Daniel Webster to Abijah Bigelow et al., January 23, 1844, in The Papers of Daniel Webster, 6:12, 17: “It would seem very reasonable to confine this provision to states to be formed out of Territories already belonging to the United States.” 51 Occasional speakers argued that it was not necessary to acquire Texas at all, for it was already part of the United States: it had been a part of the Louisiana Purchase, and the president and the Senate had no power to cede territory by treaty. See, for example, Cong.

Globe, 28th Cong., 2d sess., app., 284 (Sen. Ashley); see also Cong. Globe, 28th Cong., 1st sess., app., 762—63 (Sen. Woodbury) (insisting that the surrender of Texas was contrary both to the Constitution and to the Louisiana treaty, which guaranteed that the territory acquired would be incorporated into the United States). Clay, who had argued that the treaty was unconstitutional when it was made, said in his Raleigh letter that it was too late to complain: It is ... perfectly idle and ridiculous, if not dishonorable, to talk of resuming our title to Texas, as if we had never parted with it. We can no more do that than Spain can resume Florida, France Louisiana, or Great Britain the thirteen colonies, now composing a part of the United States. Hopkins, The Papers of Henry Clay, 10:42; see also Cong. Globe, 28th Cong., 1st sess., app., 693 (Sen. Archer); ibid., 704 (Sen. Berrien) (noting that the Senate had unanimously approved the treaty renouncing claims to Texas and that the United States had subsequently recognized its independence). Others denied that Texas had been part of Louisiana to begin with: the Spanish had been there long before LaSalle’s brief visit, and they had driven him off. Cong. Globe, 28th Cong., 2d sess., app., 370 (Rep. Severance); ibid., 357 (Rep. Pollock). See also Cong. Globe, 28th Cong., 1st sess., app., 701 (Sen. Berrien), distinguishing between cession of territory and resolution of a border dispute. 52 See Cong. Globe, 28th Cong., 2d sess., app., 67 (Rep. Stephen A. Douglas); ibid., 124 (Rep. Bayly); ibid., at 167—68 (Rep. Payne); ibid., at 284 (Sen. Ashley). 53 The rejected treaty (see S. Doc. 341, 28th Cong., 1st sess, 10—11; The Calhoun Papers, 18:215, 216, art. I, II) would have made Texas a mere territory, with the expectation of future statehood in accord with the same ambiguous promise of “incorporat[ion] into the Union” that had been made in the case of Louisiana, for after the controversy over the Jay Treaty (see Currie, The Federalist Period, 209—17) it seemed obvious that only Congress could admit Texas as a state. See, for example, Cong. Globe, 28th Cong., 1st sess., 653 (Sen. Benton); Cong. Globe, 28th Cong., 1st sess., app., 693 (Sen. Archer). 54 See, for example, Cong. Globe, 28th Cong., 1st sess., app., 701 (Sen. Berrien); Cong. Globe, 28th Cong., 2d sess., app., 84 (Rep. Brengle); ibid., 386 (Sen. Berrien). “[I]f we may take territory of the Texians from them by force,” argued Virginia Representative Thomas Bayly, “surely we may do it peaceably, with their consent.” Ibid., 123. Senator Archer’s adverse Senate Report, on the other hand, argued that conquest gave only possession, not sovereignty; an agreement was necessary to annex either the territory or the people. S. Doc. 79, 28th Cong., 2d sess., 12—13 (1845). 55 Neither discovery nor conquest, Senator Berrien observed, entailed agreement with a foreign country. Cong. Globe, 28th Cong., 2d sess., app., 384. The war power, Representative Barnard added, authorized the acquisition of territory only by war. Ibid., 350.

56 5 Stat. 797, § 1 (March 1, 1845). 57 Cong. Globe, 28th Cong., 2d sess., 386. 58 29 Annals of Congress 531 (January 9, 1816), quoted by Representative Winthrop, ibid., 397. See also Senator Archer’s almost unreadable Senate Report, S. Doc. 79, 28th Cong., 2d sess., 5, 18 (1845); Cong. Globe, 28th Cong., 2d sess., app., 56 (Rep. J. R. Ingersoll) ; ibid., 59—60 (Rep. Stetson); ibid., 85 (Rep. Brengle); ibid., 328 (Sen. Archer); ibid., 338 (Rep. Garrett Davis); ibid., 349 (Rep. Barnard); ibid., 352 (Sen. Miller); ibid., 378—79 (Sen. Rives); ibid., 386 (Sen. Berrien); ibid., 388 (Sen. Dayton); ibid., at 396 (Rep. Winthrop); ibid., 397—98 (Sen. Huntington); ibid., 404—5 (Sen. Collamer); ibid., at 410—11 (Rep. Rayner). Berrien (ibid., 386) also quoted a recent letter from the respected elder statesman Albert Gallatin: On this occasion the mutual assent of at least two parties - Texas and the United States - is absolutely necessary. Call it agreement, compact, or by any other name, it is only by a treaty that the annexation of Texas can be effected. Gallatin to David Dudley Field, February 10, 1845, in Adams, Writings of Albert Gallatin, 2:607, 608—9. That other constitutional provisions limited what Congress might otherwise do under its enumerated powers, Senator Collamer observed, was obvious: the appointment of officers might be necessary and proper to the raising of armies, but Article II, § 2 made clear that Congress could not appoint them. Cong. Globe, 28th Cong., 2d sess., app., 404. 59 See Currie, The Federalist Period, at 151—52; Cong. Globe, 28th Cong., 2d sess., 345 (Sen. Walker). Representative Douglas added that Congress could authorize contracts with foreign governments under its authority to borrow money. Cong. Globe, 28th Cong., 2d sess., app., 67. 60 U.S. Const. art. I, § 10. See Cong. Globe, 28th Cong., 2d sess., app., 124 (Rep. Bayly); ibid., 252 (Sen. Colquitt). Others invoked agreements with states or reciprocal trade legislation by which the United States would remove commercial restrictions provided other nations did the same. For example, Cong. Globe, 28th Cong., 2d sess., app., 42 (Rep. Belser); ibid., 94 (Rep. Bowlin). As opponents noted, however, agreements with states were not within the treaty power, and trade legislation created no international obligation; it could be freely repealed. Cong. Globe, 28th Cong., 2d sess., app., 60 (Rep. Stetson); ibid., 398 (Sen. Huntington); ibid., 411 (Rep. Rayner). 61 Cong. Globe, 28th Cong., 2d sess., app., 328. See also ibid., 352 (Sen. Miller); ibid., 386 (Sen. Berrien). Several speakers asserted that Congress had admitted foreign nations to statehood without treaties before: North Carolina, Rhode Island, and Vermont. See, for example, Cong. Globe, 28th Cong., 2d sess., 246 (Sen. Walker); Cong. Globe, 28th Cong., 2d

sess., app., 303 (Rep. Dromgoole); ibid., 313 (Rep. Stephens); ibid., 408 (Sen. Henderson). (Representative Morse had the gall to suggest that once nine states had ratified the Constitution all the rest were foreign, ibid., 92.) Whether any of these states had been “foreign” was, as you would suspect, contested. All lay within the boundaries of the United States as defined by the Treaty of Paris; the first two had been members of the Confederation; the third had been claimed as a part of New York, which had consented to its admission pursuant to Article IV, § 3. See Cong. Globe, 28th Cong., 2d sess., app., 84 (Rep. Brengle); ibid., 315 (Rep. Marsh); ibid., 392 (Rep. Barrow); ibid., 398 (Sen. Huntington); ibid., 405—6 (Sen. Collamer). Moreover, neither North Carolina nor Rhode Island had been admitted to the Union by Congress; each took advantage of the standing invitation to join the “more perfect” Union unilaterally that Article VII was understood to extend. Cong. Globe, 28th Cong., 2d sess., 281 (Sen. Morehead); ibid., 361 (Sen. Crittenden). For the story of the three states in question see Currie, The Federalist Period, 97—101. 62 It was further argued that the Framers could not have contemplated admission of a state in the position of Texas because none of its citizens would be eligible to serve in either the House or the Senate, since they had not been citizens of the United States for the requisite seven or nine years. U.S. Const. art. I, §§ 2, 3; see Cong. Globe, 28th Cong., 2d sess., app., 298 (Rep. Kennedy); ibid., 388 (Sen. Dayton). The typical response was that U.S. citizenship meant citizenship in a state, which Texas now was; a great many Texans had been Texas citizens for the requisite period. See ibid., 291 (Rep. Daniel); ibid., 306 (Rep. Dromgoole); ibid., 313 (Rep. Stephens). On this point too Dromgoole and Stephens invoked the cases of Rhode Island, North Carolina, and Vermont; Daniel and Dromgoole added that many Texans had been U.S. citizens before they moved to Texas. See also ibid., 109 (Rep. Tibbatts). Dromgoole suggested that the durational requirements applied only to naturalized citizens, ibid., 306; Rhett said that if all else failed Texas could be represented by carpetbaggers from the older states. Ibid., 145. Dayton (ibid., 388) persuasively responded that the purpose of the requirement was to ensure that members of Congress have a solid knowledge of the country and that those who had been citizens of Texas for the preceding seven years did not. Unless one thought Louisiana had been improperly admitted, however, this argument proved too much; for it applied to the admission of any state outside the original boundaries of the United States, which sensible opponents of immediate annexation conceded could be accomplished by a combination of statute and treaty. See, for example, Van Buren’s Hammet Letter of April 20, 1844, in Schlesinger, Presidential Elections, 822: “The executive and senate may, as I have already observed, by the exercise of the treaty-making power, acquire territory; but new states can only be admitted by congress.” See also the Senate Report, S. Doc. 79, 28th Cong., 2d sess., 18—19 (1845); Andrew C. McLaughlin, A Constitutional History of the United States (New York: Appleton-Century, 1935), 505. The Constitution hardly seemed to require that, as Kennedy suggested, Cong. Globe, 28th Cong., 2d sess., 298, Congress wait nine years between acquisition and admission, as it had done in the case of Louisiana. 63 5 Stat. at 798, § 2 Third.

64 The Senate Report opposing the joint resolution did cast aspersions of a sort on the fivestate provision, but without making any recognizable constitutional objection. S. Doc. 79, 28th Cong., 2d sess, 20-21 (1845). 65 For example, Atlas Credit Corp. v. Ezrine, 25 N.Y 2d 219, 250 N.E.2d 474, 303 N.Y.S.2d 382 (1969) (holding that a cognovit note waiving personal jurisdiction objections to future suits anywhere offended due process); Arthur Von Mehren and Donald Trautman, “Jurisdiction to Adjudicate: A Suggested Analysis,” 79 Harvard Law Review 1121, 1138 (1966). 66 See Currie, The Jeffersonians, 243-45; Coyle v. Smith, 221 U.S. 559 (1911). 67 5 Stat. at 798, § 2 Third. 68 My analysis of constitutional questions arising from the Mexican War will also appear in Currie, Descent into the Maelstrom, chap. 4. 69 See the essays of Efrén Rivera Ramos and Christina Duffy Burnett in this volume; David P. Currie, The Constitution in the Supreme Court: The Second Century, 1888—1986 (Chicago: University of Chicago Press, 1990), chap. 3. 70 For Rhode Island see Currie, The Federalist Period, 97—100; for Governor Houston’s deposition see Currie, Descent into the Maelstrom, chap. 7; for Kentucky and Missouri see David P. Currie, The Confederate Constitution in Congress (forthcoming).

6 The Golden Death of Jefferson’s Dream: California and the Sectional Crisis H. W. Brands

A NATION OF YEOMEN In Thomas Jefferson’s first inaugural address, the new president asserted that the United States had “room enough for our descendants to the thousandth and thousandth generation.” Jefferson didn’t really mean this, any more than he meant his more famous remark about Americans being all Republicans and all Federalists. Jefferson was enough of a scientist to know that the American population was doubling every generation, and, though his prowess in mathematics didn’t match his accomplishments in other sciences, he could reckon that however empty parts of the trans-Appalachian West looked in 1801, in a mere handful of generations—hardly the thousands and thousands of his oratory—the country would begin to be crowded.1 This was more ominous to Jefferson than it would have been to John Adams, Alexander Hamilton, or the rest of the Federalists. Their party looked to the cities of America for its present and future; the merchants, bankers, and manufacturers were their natural constituents and primary payrollers. And ideology echoed politics: the Federalists accepted, indeed embraced, the social stratification that cities produced. Hamilton was the arch-elitist (he argued in the Constitutional Convention for what amounted to an elective monarchy), but other Federalists felt much the same way. A crowded America, one that grew increasingly reliant on cities, suited them perfectly well. Cities encouraged the cream of society to rise to the top, the abler element to be identified and rewarded. Jefferson, by contrast, eyed cities with suspicion, much preferring the rural regions, with their farms and villages. The Republicans’ ruralism was natural for the party of the people, as the vast majority of people in America at the beginning of the nineteenth century lived on or near farms. Yet the preference for farmers also reflected a judgment that land was the great equalizer, the guarantor of republican virtue. “The small landholders are the most precious part of a state,” Jefferson told James Madison in 1785. In contrast to the city dweller, who owed his livelihood to others, the yeoman farmer was as free as a man could be. His judgment was unclouded by the need to please an employer or curry the favor of customers; his character was molded by the beneficent influences of sun, rain, and honest labor. He was the lord of all he surveyed, the equal on his modest demesne of any other man.2

To many of Jefferson’s contemporaries, the yeoman defined the American character. “What is an American?” asked Hector St. Jean de Crèvecoeur. The transplanted Frenchman answered his own question: We are a people of cultivators, scattered over an immense territory.... We are all animated with the spirit of an industry which is unfettered and unrestrained, because each person works for himself. If he travels through our rural districts he views not the hostile castle and the haughty mansion, contrasted with the claybuilt hut and miserable cabbin.... A pleasing uniformity of decent competence appears throughout our habitations. The meanest of our log-houses is a dry and comfortable habitation.... We have no princes for whom we toil, starve, and bleed; we are the most perfect society now existing in the world. Here man is free, as he ought to be.3 The egalitarian virtue of the yeomen became an article of faith among Jeffersonians, the more so as the farmers spread beyond the mountains. Massachusetts-born Timothy Flint, who went west in 1816, described what he saw: “thousands of independent and happy yeomen, who have emigrated from New England to Ohio and Indiana, with their numerous, healthy, and happy families about them, with the ample abundance that fills their granaries, with their young orchards, whose branches must be propped to sustain the weight of their fruit, beside their beautiful rivers.” Flint contrasted these blessed folk with the benighted denizens of mill and cities, and confidently declared that the farmers would never be willing “to exchange the sylvan range of their fee-simple empires, their droves of cattle, horses, and domestic animals, and the ability to employ the leisure of half of their time as they choose, for the interior of square stone or brick walls, to breathe floccules of cotton, and to contemplate the whirl of innumerable wheels for fourteen hours of six days of every week in the year.” The contrast between country and city was physical and moral, as well as occupational. Farmers and their children are strong, and innocent and moral almost of necessity. Compare the cheeks of the milk maid with the interesting but pale faces in the great manufactories. The rigid laws, the stern rules of young associations, the extreme precautions that regulate the intercourse, the moral schools of discipline in these establishments, prove, after all, what the wise and provident superintendents think of the natural tendency of things in them. It is only a besieged city that requires martial law and the constant guard of armed sentinels.4 To strengthen the yeomen, Jefferson and the Republicans believed, was to fortify the republic. And the primary method of strengthening the yeoman was the expansion of American territory. All those prosperous farms and happy children depended on the availability of land.

With land, America would continue to be America, egalitarian and free. Without land, or with land merely in short supply, America would become Europe, class-ridden and rent by riot and tumult. Jefferson’s answer to the problem he didn’t admit in his first inaugural—the problem of potential overcrowding—was, of course, Louisiana. Whether Jefferson would have pursued territorial expansion had Napoleon not dropped the western half of the Mississippi Valley into his lap is an interesting question; considering his constitutional scruples about the purchase, quite likely not. But when the territory came available, he quickly moved to close the deal before Bonaparte changed his mercurial mind. In doing so, he doubled the national domain and bought his beloved yeomen another couple of generations before the crowding set in.

THE SECRET OF DEMOCRACY; THE SEED OF DIVISION At the time of the purchase, devising governments for the new territories seemed straightforward and uncomplicated—not least since Jefferson himself had written the blueprint for organizing the western territories. For his epitaph, Jefferson specified three accomplishments he was most proud of: the Declaration of Independence, the Virginia statute for religious freedom, and the charter of the University of Virginia. He should have added a fourth, but if he had he would have been more insightful than most of his contemporaries, and indeed most historians, who similarly have overlooked the importance of an inconspicuous clause in a document Jefferson wrote for the Continental Congress in 1784. Between jobs as governor of Virginia and American minister to France, Jefferson served as a delegate to the Congress; in the late winter of 1784 he was asked to draft a plan for devising governments for the territories beyond the Appalachians. Jefferson’s plan, delivered on March 1, 1784, specified how the territories were to be divided, what the separate regions were to be called, how they were to be governed while they were being settled, and how they might be fashioned into states. Jefferson went on to recommend that after the year 1800 there should be “neither slavery nor involuntary servitude in any of the said states, otherwise than in punishment of crimes.” This part is well known and has been widely recognized, for it became the basis for banning slavery in the Northwest Territory in 1787.5 What is far less appreciated is another provision, from the next paragraph. Here Jefferson asserted that, when any of the western states attained a population equal to that of the least populous of the thirteen original states, they should be admitted into the United States “on an equal footing with the said original states.”6 It was an aspect of Jefferson’s genius to make the profound appear unremarkable. This was true of his affirmation of human equality in the Declaration of Independence (he later had to defend himself against charges of plagiarism); and it was true of his specification that the new states be admitted to the Union on an equal footing with the old. This directive occasioned no controversy when it was presented to the Congress, for it seemed simply an obvious application of the fundamental principle of republicanism: that people should govern themselves. The war against British colonialism had only just ended; to hold the western territories in colonial thrall to the United States was unthinkable.

Yet the effect on American history of this simple provision could hardly have been more profound. The world history of geographical expansion until that point had been, with minor exceptions, the history of subjugation. Never had a sizable power annexed large territories and accorded them equal status with that of the original polity. What, after all, was the point of expansion if not exploitation? Jefferson could only guess it at the time, but his provision for the equality of new states would open the way to the creation of a continental republic. More than that, it almost guaranteed that this republic would grow more egalitarian as it expanded. American and English observers had long noted that the Atlantic Ocean acted as a kind of social sieve between England and America, preventing both aristocrats and the abject poor from emigrating to America (the former because they had too much money to want to leave, the latter because they had too little to be able to). The Cumberland Gap—and other routes across the mountains —had a similar effect between the American East and the American West, with the result that society west of the Appalachians was even flatter and more egalitarian than society in the East. It was no coincidence that when the western states entered the Union—as full equals of the eastern states, per Jefferson’s formula—they did so with the broadest suffrage in the nation. And once the West, with its burgeoning population, embraced democracy and began electing populist presidents—starting with Andrew Jackson, whose humble heritage quickly became the model for presidential candidates, whether or not they had ever been anywhere near a log cabin—the East had little choice but to follow suit.7 Yet there was a catch. By making the West the equal of the East, Jefferson raised the stakes of territorial politics. The new states fashioned from the Western territories potentially held the balance of power between the North and the South. In the 1780s this problem was minor and readily solved, as witnessed by the ease of adoption of the 1787 Northwest Ordinance. At that point, even many Southerners expected slavery to die out; almost none expected it to expand across the mountains. The problem grew stickier following the Louisiana Purchase in 1803, largely because the new cotton culture, made possible by the cotton gin, gave slavery a new lease on life. Not till 1820 could North and South agree on the Missouri Compromise, which delivered the southern portion of the Louisiana territory to the South (that is, to slavery) and the northern portion to the North (to freedom).

CALIFORNIA; MANIFEST DESTINY; CIVIL WAR Jefferson famously feared what the struggle over Missouri portended, calling it “a fire bell in the night ... a knell of the Union.” But for another generation the bell was muffled, as the country concentrated on settling the regions already acquired. The Texas revolution of 1836 rekindled the old worries, but the unextinguished claims of Mexico and the antislavery suspicions of New England—of John Quincy Adams in particular—warned the Jackson and Van Buren administrations away from annexing the Lone Star republic.8 Expansionism revived in time to elect James K. Polk president in 1844; and in those days of leisurely transition from one administration to the next, John Tyler took advantage of Polk’s popular mandate to maneuver Texas into the Union, by concurrent resolution rather than unratifiable treaty. Yet Polk had a broader vision than Tyler—which was to say, a greater

appetite for territory and a stronger stomach for conflict. California, with its Pacific harbors, was his true aim, and, when Mexico refused to sell (any transfer of territory would have brought down Mexico’s shaky government), Polk employed Texas as a casus belli. His war began with a skirmish on the Rio Grande between Mexican forces and American troops under Zachary Taylor, and ended with the acquisition of California, following an invasion of Mexico that might have delivered far more territory into American hands had Americans not balked at making so many Mexicans into American citizens. (Some expansionists who knew their history now began to second-guess Jefferson’s provision about granting equal status to new territories. Mexico as a colony might have been less objectionable than Mexico as an equal.)9 The Mexican War and the acquisition of the Southwest sparked a new debate about slavery and freedom in the territories. At the beginning of the war, Congressman David Wilmot of Pennsylvania sponsored a rider to the war appropriations bill, requiring that slavery be barred from all territories taken from Mexico. The Wilmot Proviso, as it was called, cleared the House with ease, reflecting the greater Northern numbers in the more popular part of Congress. But it failed in the Senate, where the Southern delegations stood squarely against it. This legislative history alone annoyed both sides in the sectional debate: the South complained of what it interpreted as an attack on an institution that it by now considered synonymous with Southern culture and values; the North objected to the South’s veto on any Senate action, and thereby on any legislation. Northern antislavery men reintroduced—and reintroduced and reintroduced—the proviso, in part to register their disgust at this state of affairs; Abraham Lincoln, the single-term Whig congressman from Illinois, later claimed to have voted for the Wilmot Proviso “at least forty times” (an exaggeration, but not a wild one).10 Yet there was reason to be optimistic that the fruits of the war with Mexico wouldn’t fatally poison the Union. If the Louisiana territory was any model, Congress and the country would have plenty of time to negotiate the terms on which the new territory would be integrated into the Union. Nearly a whole generation had separated the purchase of Louisiana from the Missouri Compromise, and that compromise still held three decades after its devising. The reason for all the time, of course, was that the broad reaches of the trans-Mississippi West took decades (and counting, slowly) to fill up. The distances were great and the resources hardly so enticing as to lure settlers in large numbers from Ohio, Illinois, Kentucky, Tennessee, and the other jumping-off points. Put another way—the way that made all the difference to prospective emigrants—farmable land wasn’t so much cheaper west of the Mississippi as to pay Jefferson’s sturdy yeomen to uproot their families and move there. The lands of the Mexican cession looked even less enticing than Louisiana. Utah and New Mexico were desert, so barren that neither the Spanish, who controlled the region for two hundred years, nor the Mexicans, who ruled for twenty, had been able to persuade their people to relocate there. California was more promising, but almost nowhere on earth was farther from the settled regions of the American East in 1848 than California, in terms of the transportation that might be expected to carry people and cargo there. From New York to San Francisco was some sixteen thousand nautical miles, via Cape Horn, the stormiest promontory on the watery planet. India was closer to New York than San Francisco was; and India had trade goods the American people were willing to spend money on. All California produced

was cowhide. For this reason, though the acquisition of California and the Southwest was cause for political concern, in terms of its impact on the sectional issue it was hardly cause for alarm. Time had allowed for sectional compromises in the past—the three-fifths compromise at Philadelphia in 1787, the Missouri Compromise in 1820, the 1833 compromise that denatured South Carolina’s nullification threats. Several of the leading legislators who had crafted the 1820 and 1833 compromises were still in Congress; surely with their experience and their cleverness, they could find another compromise—if they were given time. But they weren’t given time. Grand events in history tend to acquire, in hindsight, an air of inevitability. The spread of democracy, the settling of the West, the Civil War as the only means of resolving the sectional dispute and ending slavery—all seem to have been destined to happen. To be sure, some things in history are inevitable, or nearly so: the expansion of European civilization across the Atlantic and then across North America, for example. But other things happen by accident, at least in their timing, and have consequences no one could have guessed in advance. Perhaps the greatest accident in American history occurred on January 24, 1848, on the banks of the Middle Fork of the American River in the Sierra Nevada foothills of California, fifty miles above Sutter’s Fort. James Marshall, an itinerant carpenter lately engaged by Swiss expatriate John Sutter to locate and construct a sawmill, happened upon some flakes of gold while overseeing excavation of the millrace. Though Marshall and Sutter tried to keep the discovery secret, word soon got out—courtesy of Samuel Brannan, a lapsing Mormon who owned a dry-goods store at Sutter’s Fort, and who determined to make a fortune from the miners rather than from the mines. Brannan carried a jar of the Sierra gold to San Francisco, where he paraded about the streets of the village shouting, “Gold! Gold! Gold from the American River!”11 Brannan’s bellowing touched off the California Gold Rush, an astonishing mass movement of peoples like nothing since the Crusades of the twelfth century, and utterly unforeseen by anyone anywhere in the world a day before it began. For those many Americans looking for evidence to support their claims of Manifest Destiny, the gold discovery became Exhibit A. The Indians of California had lived there for thousands of years without discovering gold; the Spanish hadn’t found gold in two centuries in California; the Mexicans not in two decades. But Americans hadn’t controlled the place for two months (in fact, they hadn’t quite acquired title at the time of the discovery) before they found gold. If that didn’t indicate that Providence was smiling on America, nothing did. In terms of American politics, the Gold Rush overturned all expectations regarding California. Legislators who thought they’d have decades to figure out what to do with the land acquired from Mexico didn’t have even a year. By mid-1849 California had enough people to warrant a state government; by the end of the year the Californians had written a state constitution and sent it to Washington for approval. Because the California constitution barred slavery, the Southern delegations in Congress denounced it, in the process calling into question

a fundamental premise of the Missouri Compromise, that slavery could be barred from any territory acquired by the federal government. Henry Clay, the master compromiser from border-state Kentucky (Clay had been the principal author of the Missouri Compromise), cobbled together a package intended to wrap the admission of California in measures the South couldn’t refuse. For years Northerners had cringed at the slave auctions held just blocks from the Capitol in Washington, and they hoped to ban the slave trade from the District of Columbia. Many wanted to go further, and ban slavery itself from the District. Henry Clay proposed to eliminate the trade but preserve the institution. To offset the admission of California as a free state, he proposed to organize Utah and New Mexico as territories where slavery might be allowed (repealing the spirit of the Missouri Compromise as it would have applied to Utah, had the 36° 30’ line been extended across the Rockies). But his biggest boon to the South, the prize that made everything else acceptable to the defenders of slavery, was a signally stiffened fugitive slave law. Clay’s compromise evoked violence, with fistfights breaking out on the floor of the House of Representatives and pistols being brandished in the Senate. It also elicited the greatest debate in the history of the Senate. Clay spoke for two days on behalf of his package; he would have gone into a third but his colleagues objected, prompting Clay to promise: “I begin to see land; I shall pretty soon arrive at the end.” Clay was followed by John C. Calhoun, who, speaking through a colleague on account of the tuberculosis that would kill the South Carolinian within weeks, thundered against Clay’s package. Daniel Webster, the Demosthenes of his day, disappointed the fervent antislavery element of his Massachusetts constituency by accepting Clay’s compromise.12 After months of work and reworking—much of it by Stephen Douglas, who became both famous and infamous in the bargain—Clay’s package squeezed past both houses of Congress. Daniel Webster declared, with relief, “The Union stands firm.” More wishful words have rarely been spoken; for the Union didn’t stand firm at all. The California compromise— otherwise known as the Compromise of 1850—destroyed the Whig Party, split the Democrats, and mortally weakened the Union. Northerners were outraged by the Fugitive Slave Act, which put the burden of proving their innocence on African Americans fingered by slave-catchers, and in the process made unwilling accomplices of Northern sheriffs, judges, and ordinary civilians. The South exploited Clay’s violation of the spirit of the Missouri Compromise to press for formal repeal, which they accomplished in 1854 by the Kansas-Nebraska Act. The direct result of the act was a guerrilla war in Kansas that further poisoned relations between North and South, emboldened extremists on both sides, and provided practice for the civil war that many now saw as unavoidable.13 The discovery of gold in California wasn’t alone responsible for this calamitous chain of events. It’s entirely possible that the division between North and South had grown so deep by the mid-nineteenth century that extra-legal, extra-political measures—that is to say, military measures—were required to extract America from the predicament into which it had gotten itself. Yet it’s worth noting that of all the great powers that practiced slavery in the eighteenth and nineteenth centuries—which was to say, nearly all the great powers of the world—only the United States required a full-scale civil war to eliminate it. One of the beauties of America’s

system of divided and federal government is that it rarely does anything rashly, because it rarely does anything swiftly. For seventy-five years before the discovery of gold, the United States managed to muddle through crisis after crisis. Given time, it might have muddled through the crisis that followed the Mexican War. But California’s gold guaranteed that America’s leaders wouldn’t be given the time, and that the continental republic Jefferson had done so much to create would be torn in two. California’s gold changed America in another way as well, a way that was even more lethal to Jefferson’s vision of a nation of yeomen. Jefferson’s vision had been based on the model of freehold farmers, laboring diligently to secure their modest portion of the American dream. Their reward came over decades, and was moral as much as it was material. From Jefferson’s day until 1848, this vision had provided a perfectly viable model of American success. Other visions—based on commerce and land speculation, for instance—existed, but none so resonated in the American mind as Jefferson’s. The Gold Rush furnished a new model of success, one far more dynamic and compelling than Jefferson’s. The hero of the Gold Rush was not the yeoman patiently tending his crops but the miner feverishly panning for the precious yellow metal. The goldhunters hoped for success in days or weeks, not decades, and they envisioned riches beyond the wildest imaginings of any yeoman clodhopper. Their new vision—the vision of El Dorado—emphasized audacity over diligence, mobility over rootedness, the short-term over the long haul. The miners of California knew nothing, or admitted nothing, of the moral virtues that had made the yeoman attractive to Jefferson and many of his generation; at the mercy of the geological chance that determined whether a given claim yielded gold or simply gravel, they lived in a no-fault world beyond the morality of the yeoman. Not everyone in California struck it rich, of course. But some did, and everyone could hope to; and that hope constituted a solvent that corroded Jefferson’s vision. The Forty-Niners often spoke of “seeing the elephant”: of seeing and doing things they never would have seen or done at home. In Gold Rush California, America collectively saw the elephant, and, once it did, it could never settle for life on Jefferson’s farm.14

NOTES 1 First inaugural address, March 4, 1801, in Merrill D. Peterson, ed., Thomas Jefferson: Writings (New York: Library of America, 1984), 492—96. 2 Jefferson to James Madison, October 28, 1785, in ibid., 842. Despite his preference for farmers (among whom he classed himself), Jefferson was realistic enough to know that national prosperity required other forms of economic activity as well. In his first annual message to Congress, in December 1801, he identified “agriculture, manufactures, commerce, and navigation” as “the four pillars of our prosperity.” Ibid., 507. Yet his true feelings on the subject came out in a 1785 letter to John Jay, in which he said, “Cultivators of the earth are the most valuable citizens. They are the most vigorous, the most independent, the most virtuous, and they are tied to their country and wedded to its liberty and interests by the most lasting bonds. As long therefore as they can find employment in this line, I would not convert them into

mariners, artisans or anything else.” Ibid., 818. 3 J. Hector St. John Crevecoeur, Letters from an American Fanner (New York: Fox, Duffield, 1904), 49—50. 4 Henry Nash Smith, Virgin Land: The American West as Symbol and Myth (Cambridge, Mass.: Harvard University Press, 1950, 1970), 139—40. 5 “Report on Government for the Western Territory,” March 1, 1784, Peterson, Thomas Jefferson: Writings, 377. 6 Ibid. 7 Data on the distribution of wealth in the early republic are sketchy, but they allow Kevin Phillips to declare, “The greatest concentrations of assets and levels of economic polarization came where similar trends had been visible in the eighteenth century—in the large commercial centers like New York, Philadelphia, Boston, and Baltimore.” Wealth and Democracy: A Political History of the American Rich (New York: Broadway Books, 2002), 22. See pp. 15 —31 for more on this subject. 8 Jefferson to John Holmes, April 22, 1820, Peterson, Thomas Jefferson: Writings, 1434. 9 The best account of the expansionist ideology and politics of the 1840s is still Frederick Merk, Manifest Destiny and Mission in American History: A Reinterpretation (New York: Knopf, 1963). Also valuable and even more venerable is Albert K. Weinberg, Manifest Destiny: A Study of Nationalist Expansion in American History (Baltimore: Johns Hopkins Press, 1935). 10 Lincoln speech at Peoria, Illinois, October 16, 1854, in Roy B. Basler, ed., Abraham Lincoln: His Speeches and Writings (Cleveland: World, 1946; New York: Da Capo, 1990), 288. 11 H. W. Brands, The Age of Gold: The California Gold Rush and the New American Dream (New York: Doubleday, 2002), 43. 12 Ibid., 293—301. 13 Ibid., 304. 14 This argument is developed at greater length in Brands, The Age of Gold, chaps. 17—18.

7 A Promise of Expansionism Paul Kens [Our] claim is by the right of manifest destiny to overspread and possess the whole of the continent which Providence has given us for the development of the great experiment of liberty and federated self-government entrusted to us. John Louis Sullivan, February 27, 1845 John Louis O’Sullivan coined the phrase “Manifest Destiny” in an 1845 editorial justifying America’s claim to Oregon.1 The beauty in his words lies in how succinctly they captured the argument that America’s expansion to the Pacific Ocean was inevitable. There is little doubt that the idea that the United States was predestined to spread from the Atlantic to the Pacific was captivating in its time. There is even less doubt that it has become deeply ingrained in American folklore. Furthermore, despite the complications of slavery and sectionalism, the belief that United States territory should stretch across the continent was widely popular. Manifest Destiny, one historian has explained, was a national mood rather than a precise program—a mood characterized by buoyant optimism as Americans looked expectantly toward Texas, Oregon, and California.2 Nevertheless, there was nothing inevitable about this expansion. Prior to the 1840s, most Americans did not think of their nation as encompassing the entire continent. Although some eastern merchants undoubtedly dreamed of ports on the Pacific and trade with the Orient, the continent itself imposed a formidable barrier to expansion. Those who thought about the territory west of the Mississippi at all commonly referred to it as the Great American Desert.3 Both the fact of expansion and the means of expansion thus involved policy decisions: controversial decisions that required the government, primarily the Tyler and Polk administrations, and others who favored the policy to provide justifications.4 It is understandably tempting to think of expansion of the 1840s as simply a continuation of the Louisiana Purchase. In some ways it was. But the 1840s expansion was also different. Rather than resulting from a purchase, American expansion in the 1840s involved a compromise with England over the disputed Oregon Country, annexation of the sovereign nation of Texas, and war with Mexico. These events raised some very practical concerns.

Some opponents of expansion worried especially about England’s reaction to aggressive expansion, fearing that, if pushed too far on the Oregon question and threatened by American control of the Texas cotton crop, England would opt for war. When the United States itself opted for war with Mexico, some critics worried about how much the war would cost and how the government would be able to carry out a war in so distant a land. The most conspicuous difference, however, is that 1840s expansion became engulfed in the question of slavery. The link is so strong that it is not unusual for historians to treat expansion of the 1840s primarily as a prelude to the Civil War. In such studies abolitionism, sectionalism, the expansion of slavery, or the road to civil war tend to overshadow other topics.5 There were, however, other important issues surrounding expansion. One set of these issues dealt with the flip side of the slavery question. If new territories were not to be open to slavery, then what was the alternative? In this respect 1840s expansion resembled the Louisiana Purchase in that it included questions about what representative democracy should look like: questions about what kind of nation would best assure the continuation of a republican form of government. These questions grew in importance after the United States had annexed Texas as a slave state and Americans had begun to realize the prospect of taking the Mexican territories of California and New Mexico. Although similar to the Louisiana Purchase, the 1840s debate about the nature of American democracy had it own unique character. More than forty years had passed since Jefferson purchased Louisiana. That may not seem like a great deal of time in historical terms. But the United States, which was still something of an infant nation in 1803, had gone through a new stage of development. The debate over expansion in the 1840s reflected that development. It was, in other words, influenced by the problems and the ideals of the age of Jackson. One idea that grew out of that age was that American democracy was threatened by the emergence of a connected elite that was able to use its wealth to capture and despoil the democratic process. This dilemma framed an aspect of the expansion debate that I will emphasize in this chapter. It begins with the evolution of the argument, borrowed from Jefferson but molded to a new time and new circumstances, that expansion offered an opportunity to solve the dilemma. Jefferson saw the Louisiana Purchase as a chance to build an agrarian republic; his heirs in the 1840s saw in expansion a chance to preserve true representative democracy. Their vision began with the presumption that acquisition of new lands in the west would provide opportunities for small farmers. The result would be a significant increase in the size of the class of yeoman farmers who, in turn, would offset the influence of the connected elite and thus preserve representative democracy. Since America succeeded in adding vast new territory in the 1840s, it is reasonable to ask whether the expansionists’ prediction, or promise, was fulfilled. With that in mind, the second part of this chapter traces the history of land reform in the later part of the century. Land reformers believed the nation would take advantage of the opportunity expansion created only if the federal government adopted a policy of distributing newly acquired public domain in small amounts to actual settlers. There is little doubt that land reform made significant gains. But a look at congressional land policy from the 1850s to the 1880s and treatment of land cases in the federal courts in the later part of this chapter will demonstrate that the federal policy that

ultimately emerged was hostile to land reform. It did little to fulfill the promise expansionists’ made in the 1840s that acquisition of new territory would move the nation in the direction of the ideal agrarian republic.

A PROMISE OF EXPANSIONISM Measured in terms of territory gained, the administrations of Tyler and especially Polk were enormously successful. In 1845 the United States absorbed the Republic of Texas. Texas, which had won independence from Mexico in 1836, joined the union by mutual agreement. The Tyler administration next added most of what was then known as the Oregon Country. In 1846, after years of simmering dispute, Great Britain and the United States entered into a treaty that gave the United States control of all the Oregon territory below the 49th parallel. That same year, the United States declared war against Mexico. The war, ostensibly begun as a dispute over the Texas boundary, ended with Mexico ceding almost one-third of its territory to the United States. The 1848 Treaty of Guadalupe Hidalgo gave the United States the Mexican territories of New Mexico and California. The United States gave Mexico fifteen million dollars for the ceded territory. In three short years the United States added more than a million square miles of land, more than doubling the size of the nation. In his third annual message to Congress, Polk bragged that the acquisition of California and New Mexico alone “constituted of themselves a country large enough for a great empire and is second only in importance to that of Louisiana in 1803.”6 Not everyone was convinced that the acquisition of a country large enough for a great empire was a good thing, however. The early debate over expansion broke down along party lines. Democrats generally favored rapid and aggressive expansion. Whigs either opposed expansion or had reservations about the speed and method. There were exceptions to be sure. Whig President John Tyler, for example, favored annexation. Nevertheless, the importance of party affiliation in the early stages of expansion was made evident when the Senate voted in favor of the resolution to annex Texas. Every Democrat in the Senate and three Southern Whigs voted for annexation.7 The presence of three Southern Whigs among the majority in the Senate vote on annexation of Texas, however, hinted that slavery and sectionalism would complicate matters for the political parties. Abolitionists could generally be counted among the most persistent opponents of expansion. But both sides of the slavery debate potentially had something to fear from expansion. Opponents of slavery, mostly northerners, feared that admission of new territory as slave states would further enhance the already disproportional power of the southern states in Congress. Slavery’s advocates feared that closing new territory to slavery would stifle their economic system and increase the political power of those who would abolish slavery altogether. Although the Democratic Party was able to maintain solidarity on the Texas vote, after the admission of Texas the prospect of adding still more territory as slave states was too much for antislavery Democrats to accept. In August 1846, with the United States and Mexico still at war, President Polk asked Congress for two million dollars to “defray the extraordinary expenses of war.” Polk’s enemies in Congress suspected that he actually wanted the money to

offer to buy California and New Mexico as part of a peace agreement. During debate on this appropriations bill, David Wilmot, a Democratic congressman from Pennsylvania, offered an amendment that would prohibit slavery in all the territory acquired from Mexico. The Wilmot Proviso highlighted a growing rift in the Democratic Party as antislavery Democrats—most of them northerners and westerners—began to join abolitionists and Northern Whigs in opposition to expansion.8 Slavery, sectionalism, and party are the front-page stories of the history of expansion. Like everything in American politics, however, the issue was more complex, subtle, and fluid. Opponents raised other objections to expansion to the west. Two of these found their source in the fundamental principles of American government. First, some of expansion’s opponents questioned the legitimacy of United States designs on new territory. Second, they argued that expansion was inconsistent with a republican form of government. These arguments occupied a position on the fringe of the debates over annexation of Texas and the treaty for Oregon, but they grew in importance in the debate over war with Mexico. The aspect of this debate that is most interesting, however, was the expansionists’ responses to these arguments, or how proponents developed norms to justify aggressive expansion and the war. Texas joined the United States by mutual assent, thus the questions of what right the United States had to the new territory and questions about inconsistency with republican government were not particularly pressing issues. But the process by which annexation was accomplished did raise a related question of constitutional interpretation. Early in 1844, President Tyler submitted a treaty admitting the Republic of Texas to the Union for Senate approval. Although Tyler favored annexation most in his Whig Party did not. With presidential nominations and a fall election looming, many Whigs hoped to stake out an an-tiannexation position for the party. They had strength enough in the Senate so that, when the treaty came up for a vote on June 8, 1844, it failed to receive the two-thirds necessary for approval. Although this first attempt at annexation failed, proponents did not give up. James K. Polk, a Democrat and ardent annexationist, was elected in November. Annexationists, encouraged by the result, did not wait for the inauguration to make another attempt to annex Texas. They devised a plan to avoid the Article II requirement that treaties be approved by two-thirds of the Senate by proposing a joint resolution of Congress that provided for annexation. The resolution, which was introduced on December 2, 1844, and passed both houses in February 1845, provided that the president could either offer Texas immediate admission as a state, or conduct further negotiations and submit any pact of annexation to the Senate or full Congress as the president saw fit.9 On March 3, 1845, his last day in office, Tyler offered Texas immediate annexation. Polk sent the same offer the next day. Texas accepted and was admitted to the Union on December 29, 1845. Opponents of annexation had argued that the Constitution does not provide for the annexation or absorption of another sovereign nation. But neither does the Constitution prohibit annexation. Chief Justice John Marshall had addressed this question in American Insurance Co. v. 365 Bales of Cotton (Canter ) (1828). “The Constitution confers absolutely on the government of the Union, the power of making war, and that of making treaties,” Marshall wrote. “Consequently, that government possesses the power of acquiring territory, either by

conquest or by treaty.” Marshall’s language implied that the power to acquire territory is an inherent characteristic of souvereignty.10 In this sense the annexation of a sovereign state may have been novel but was not necessarily contrary to the constitutional plan. But the fact that this inherent characteristic grew out of the power to make war and enter treaties also implied a key role for the Congress and, in the case of treaties, the Senate. Thus the method annexationists used to accomplish their goal was more worrisome. Employing the joint resolution technique to avoid Senate ratification represented a subtle but significant increase in the power of the executive. Opponents worried that this shift would upset the Constitution’s fundamental plan of checks and balances. Moreover, at least symbolically, it postured the president as the main policy maker regarding questions of American expansion. Questions of the right to new territory and the relation of expansion to democratic government were more relevant in regard to American claims to the Oregon Country. Great Britain also claimed the territory, and one of the greatest concerns of those opposing an aggressive stance on Oregon was the fear of pushing the country into a war with England. Nevertheless, U.S. expansion into Oregon was attractive for a number of reasons. To Northern merchants it satisfied a need for markets and a source of raw material. It would secure for the United States ports on the west coast to facilitate trade with Asia. Additionally, the acquisition of Oregon as a free territory arguably offset the entrance of Texas as a slave state. The problem was that the American claim to the territory was weak. It had no claim by discovery, no claim by treaty, and little by occupation. In terms of principles of international law, England probably had the stronger claim to the territory. Not to be discouraged, expansionists offered a series of justifications to support the U.S. claim to Oregon and the beginnings of a theory to support U.S. expansion in general. Couched in quasi-scientific terms, these justifications implied an element of predestination that expansionists believed trumped international convention. One postulated that it was as normal for a young nation to grow as it was for a young organism. Because the growth instinct was natural, it concluded, it was also morally supportable.11 Another borrowed from Sir Isaac Newton. This law of political gravitation reasoned that, because people were naturally drawn toward a republic, adjacent territories would be drawn into the Union as inevitably as a ripe apple would fall to earth.12 Such theories gave expansionists cause to argue that true title to the Oregon territory did not rest with conventions of international law, but rather with natural law. Expansionists provided additional force to the argument by adding an element of antiimperialism. Manifest destiny, some said, included “the right of the Americans in Oregon to free government and the liberty to choose their own laws without monarchical interference.”13 They did not bother to consider how American annexation would guarantee the free choice of British subjects living in Oregon. But expansionists could look to another idea to address that problem. Territory-hungry Americans had earlier developed a natural law theory to justify taking lands from Native Americans. The idea was founded on the proposition that the Creator intended for land to be cultivated. Indians may have first inhabited the lands of North America, it reasoned, but, because native people were hunters and gatherers, they did not possess any true ownership rights in the land. Their rights were more like a lessee or tenant at will. From

that point it was only a small step to conclude that the “true title” to the land belonged to the Anglo cultivator.14 Some expansionists used this reasoning with respect to Oregon, claiming that the British claim to the land was weak because they were only interested in the territory for the fur trade and their presence was limited to trapping and hunting. They would turn to it again to justify taking Mexican territory. If talk about the conflict between expansion and the ideal of republican government seemed abstract with respect to expansionists’ designs in Texas and Oregon, it was crystallized by the war with Mexico. The war ostensibly began as a border dispute. When Texas won its independence from Mexico, the new Republic claimed the Rio Grande River as its southern border. Mexico had never accepted that border, but instead claimed that its territory ran to the Nueces River some 150 miles farther north. The United States inherited this border dispute when Texas joined the Union. Expansionists were willing to talk of war to settle the issue. Opponents were less enthusiastic. They argued that pushing Mexico toward war would jeopardize trade and credit with England and reduce the likelihood of settling the still festering dispute over Oregon. They worried about the cost of pursuing a war, especially given the remoteness of the battlefields. Of course, some abolitionists also viewed the conflict with Mexico as part of a Southern strategy to further extend the strength and influence of slavery. A few intellectuals, driven by opposition to slavery, pacifism, or both opposed the war as immoral. Henry David Thoreau called it “the work of a comparatively few individuals using the standard government as their tool.”15 Ignoring critics, President Polk ordered General Zachary Taylor to move troops to the town of Matamoros, on the north bank of the Rio Grande. As American troops moved south, Polk tried to coax Mexico not only into recognizing the Rio Grande as the border, but also into ceding New Mexico and California to the United States. The Mexican government was not intimidated. On April 25, 1846, Mexican troops crossed the Rio Grande and attacked a squad of U.S. troops stationed there, killing eleven, wounding five, and capturing more. The skirmish gave Polk the excuse he needed to intensify the hostilities. The president did not ask Congress for a declaration of war. Rather, in a message to Congress on May 11, 1846, he asked Congress to recognize that war already existed and to give him the authority to prosecute that war to a “speedy and successful termination.”16 With hostilities already commenced, opponents of the war found themselves in an impossible position. Congress immediately granted the president’s wish. Despite earlier opposition to war on both practical and moral grounds, only fourteen members of the House and two senators voted against a resolution giving the president the power to carry out the war. A few Whigs complained that Polk had usurped the power of Congress. But it was John C. Calhoun, a member of Polk’s own Democratic Party, who was most vocal on this constitutional objection. War did not exist until Congress declared it, Calhoun argued. By his actions, Polk had “set an example which will enable all future presidents to bring about a state of things in which Congress shall be forced, without deliberation, or reflection, to declare war, however opposed to its convictions of justice or expediency.”17 The Whigs did not take up this theme in earnest until the war had dragged on for more than a year. Then, in 1848, Congressman

Abraham Lincoln introduced his “spot resolution” demanding to know whether the particular spot on which the blood of our citizens was so shed, was or was not at that time our own soil.“18 A Whig majority in the House of Representatives later followed with a resolution declaring that the war was ”unnecessarily and unconstitutionally begun by the President of the United States.“19 Mexican defeats on the battlefield and the war’s imminent conclusion highlighted the tension between expansion and democracy. Although the war was originally justified as a battle over disputed territory, Polk demanded as a condition of peace that Mexico cede to the United States all of New Mexico and California. Polk’s offer to pay Mexico for the territory did little to conceal the fact that the war had become, if it was not always, a war of conquest. This gave added weight to a long-held view that seemingly unrestrained growth of the nation was inconsistent with a republican form of government: that the United States was beginning to more resemble a vast empire than a small republic. Jefferson had faced that problem in 1803 with regard to the Louisiana Purchase. Polk’s designs on Mexican territory now gave it a new twist that Horace Greeley captured by asking, “Has the world ever known a republic which extended its boundaries by the subjugation of diverse and hostile races without undermining thereby its own liberties?”20 Acquisition of territory through war, anti-expansionists argued, was a perversion of the most basic principle of American democracy—consent of the governed. Expansionists met this objection by implying that the acquisition of California and New Mexico would not be a matter of conquest but rather an application of America’s natural right to land that was not being fully utilized by its inhabitants. This notion of “true title” had previously been used to justify taking land from native peoples; now expansionists would apply it to Mexicans.21 Besides, expansionists said, the acquisition of this new territory would not be a betrayal of America’s mission as a model republic. Quite to the contrary it would expand the institutions of republican government into that territory. The ultimate effect of expansion in this regard would be to spread democracy. In their terms, it would have the effect of “regenerating less fortunate races.”22 Not everyone agreed with this view of America’s mission. Opponents believed that Polk’s demands for California and New Mexico had turned the conflict into a kind of raw imperialism that was inconsistent with constitutional democracy. Elder statesman and diplomat Albert Gallatin was not willing to admit that the American people possessed a hereditary superiority of race over Mexicans. But even if one were to make that presumption, he said, it gave “Americans no right to infringe upon the rights of the inferior race.”23 The United States could encourage the spread of republican government, he said, only by providing a moral example. Senator Joseph R. Underwood of Kentucky expressed similar sentiment; “I am unwilling to enter upon military crusades with a view to teach our politics or religion to other nations of the earth.... Sir, it is not the nature of man to be taught true religion, or the true principles of civil liberty and republican government, at the point of a bayonet.” 24 Perhaps the most revealing rejection of this view of mission came from a proponent of expansion, Senator Lewis Cass of Michigan. “We do not want the people of Mexico, either as citizens or subjects,” Cass said.

“All we want is a portion of the territory which they nominally hold.”25 Cass’s bluntness was founded on a racism that was rampant in the debate over expansion and carried over into the history of these territories after U.S. acquisition.26 That is an important story in itself. But the significance here is that Cass’s bluntness also revealed that expansionists were not really interested in spreading the blessings of republican government to “less fortunate races.” While expansionists did sometimes attempt to meet head-on the complaint that acquiring territory through conquest was inconsistent with self-determination, their primary strategy was to deflect that complaint. They accomplished this by turning the nation’s focus to how expansion would strengthen republican government and secure the liberty of those people already living in the United States. The expansionists’ most energetic and forceful arguments, in other words, were not about regeneration of the “less fortunate races,” but rather about regeneration and salvation of republican institutions in America: for the benefit of “the nation’s more fortunate” citizens. This theme, that adding new territory would protect liberty and enhance democracy, was familiar. Decades earlier, Thomas Jefferson had asserted that the acquisition of new unsettled land acquired in the Louisiana Purchase would encourage republicanism by dispersing power. Imperialism, he pointed out, threatened liberty because power tended to be concentrated and centralized. By contrast, power of government in the American system was already spread out among the branches of government and between the central government and the states. The system of federalism, especially, would distinguish American expansion from British imperialism. If America remained true to the federalist system, the addition of new territory, and eventually new states, would tend to even further disperse the central government’s power. The American commitment to federalism might avoid one problem of empire: the concentration of governmental power. But more interesting in relation to the promise of expansion in the 1840s was the issue of concentration of economic and political power. To avoid this prospect, Jefferson’s ideal of republican empire depended upon widespread ownership of land. For it to work the government would have to distribute new lands into the hands of a class of yeoman farmers. Thus Jefferson opposed anything that smacked of the aristocratic system. In England a system of feudal tenure concentrated land ownership in the hands of a small elite, and legal rules of succession like primogeniture perpetuated aristocracy.27 Expansionists of the 1840s continued to play on this liberty versus aristocracy theme. It served them in justifying a claim to the Oregon Country. It served them in attempting to justify supplanting what they portrayed as feudal rule in Mexican territory. It also served them as a means of highlighting what they viewed as the major social, economic, and political ills of their day. Expansionists painted a picture of Europe as a civilization on the decline in which the system of exclusionary land ownership, combined with rapid industrialization, produced a disastrous result for the working classes: congestion in the cities, exploitation of workers, poverty among farmers, and social discontent that was, by 1847, leading Europe to the brink of revolution. Alarmists among them saw the beginnings of the same situation festering in the urban areas of New England.

The tendency to play on this fear of falling into the same quagmire as European monarchies reflected a discomfort with modernization and an admiration of agrarianism familiar in Jefferson’s ideas. However, expansionists of the 1840s added their own twist to these familiar themes. While they warned of the dangers of aristocracy, these expansionists articulated rudimentary economic arguments that addressed problems associated with the developing market economy. Some pro-expansion Democrats promised that expansion would protect workers from wage servitude. Anti-expansionist Whigs, they said, “were trying to chain free men to the steam engine and the loom.”28 The acquisition of new territory provided one solution for expansionists, who viewed the West as a safety valve. Availability of cheap land would draw off some urban workers, reduce congestion, provide markets for raw materials and goods made in the eastern states, and increase the bargaining power for those workers who chose to stay.29 Although promises of economic gain for white, working-class Americans were clearly part of the expansionists’ equation, their justification focused on a future of American democracy. Most expansionists of the 1840s were products of the age of Jackson. They feared the impact that connected elites had on democracy and thus on individual liberty. This “special privilege,” as they called it, generated a perpetual cycle. Connected elites obtained wealth acquired from government largess, influence, power, or oppression. Their wealth tended to concentrate political power in that it gave people with the most money the means to influence government. This influence, in turn, resulted in their receiving more special privilege. In this scenario, the unconnected were left powerless. Special privilege destroyed their ability to truly influence government. It is important to emphasize that this was not just a theory of popular economics. It was, at its heart, a political ideal. The classic Jacksonian solution to the problem of special privilege involved calls for limited government, opposition to general corporations, and lowering of tariffs. Jacksonians also idealized agrarian society, and hoped that populating the country with independent and self-sufficient yeoman farmers would balance the political influence of the privileged elite.30 They borrowed the idea from Jefferson and passed it on to 1840s expansionists. Peter Onuf observed that, in Jefferson’s time, the notion of republican empire was the “radical republican counterpoint to a British imperial regime that threatened to transplant feudal corruption to the new world.”31 The notion of republican empire for the 1840s expansionist was something more. It was also a response to weakness within the democratic system itself: a tendency to concentrate power in the hands of an economic elite. To them, corruption of democracy was probably a more realistic threat to individual liberty than was feudal corruption. To them modernization, urbanization, and growth of the market economy exacerbated this tendency by providing ever increasing means to concentrate wealth and increase the cycle of influence and special legislation. The prospect of acquiring new territory allowed 1840s expansionists to continue looking toward agrarianism as one solution to these problems. To be successful, however, the new republican empire would have to avoid not only archaic rules that supported aristocracy, but

also any tendency to distribute land in large blocks to speculators and land companies. In the expansionist line of reasoning, a policy of distribution of newly acquired territory to individuals in small amounts would not only increase the influence of the class of independent yeoman farmers they so admired but also enhance geographic and social mobility. The resulting dispersion of power would go far in assuring real representative government: one free of domination by a politically connected elite and the pernicious effect of special legislation.

PROMISE FULFILLED? Thomas Hietala summed up the expansionist argument rather nicely. The expansionists, he said, regarded the acquisition of new lands as a prerequisite for republican government, and for an economic society based upon individual acquisitiveness, geographical and social mobility, and a fluid class structure. 32 Those goals certainly seemed within reach in the immediate aftermath of the war with Mexico and acquisition of California, especially when attention is drawn to the California gold rush. Perhaps at no other time in American history have the ideals of individual liberty, social mobility, and self-government flourished in such a degree. Letters and journals of the forty-niners reveal that they shared a strong sense of emancipation from both social and economic constraints. Men and women who came to work the gold fields or provide services for miners took great pride in the fact that they worked for themselves, not as wage laborers. As they forged into new territory, they had to create the rules and regulations that would govern their own particular civil society. As H. W. Brands amply demonstrates in his contribution to this volume, the discovery of gold had an enormous impact on the direction of American history. In one respect, however, its impact was not as lasting or fundamental as Brands suggests. The hero of the gold rush, the miner feverishly panning gold to get rich quick, did not supplant the yeoman farmer. Like the easy strikes in the gold fields, the frenzy of liberty and social mobility quickly played out. Within a decade from the start of the gold rush, placer mining, which could be worked by an individual, was giving way to hard rock or hydraulic mining, which was capital intensive. Some miners and newcomers turned to farming. Other men and women who came to California seeking economic independence were faced with the prospect of working for wages in the mines, for the railroad, or for other businesses. In a short time, Americans once again turned to the ideal of the small farmer. The excitement of the gold rush makes it tempting to overlook that the key to the promise of expansionism lay in the land itself. Whether the acquisition of this vast territory would produce a republican empire on the order of what expansionists envisioned depended, in great measure, on the federal government’s policy for distribution of public domain in the West. National land policy before the 1840s certainly did not favor distribution to actual settlers in small blocks. In a government strapped for cash, sale of the land was considered a necessary and convenient source of revenue. Thus federal policy was to survey the land then sell it at auction, usually in large blocks to speculators and land companies. Pioneers tended to outpace the government, however, settling on public land before the authorities could survey it. Those who did were technically trespassers and, from time to time, government officials threatened to

remove them. In the 1820s Westerners and Democrats responded by pressing for preemption laws that gave particular settlers the option to purchase the property on which they had illegally settled. These first preemption laws were ad hoc reactions that applied only to specific regions. Congress passed a general preemption law in 1830. This law remained retrospective however, giving rights only to those who had already taken the risk of settling on unsurveyed land. In the late 1840s the ideals of expansionists coincided with a growing movement for land reform. Reformers like George Henry Evans, Horace Greeley, and George Julian maintained that every man had a right to a share of the soil. “The lands belong to the people,” they said, and the public domain should be freely granted to them in small tracts.33 Congressman George Julian of Indiana, one of the era’s most persistent advocates of homestead laws, made the link between land reform and expansionism in demanding that, “in laying the foundation of empire in the yet unpeopled regions of the great West, Congress shall give its sanction to the natural right of the landless citizen of the country to a home upon its soil.”34 Julian did not ignore the political aspect of the expansionist vision. The independent farmers that homestead policy would produce, he said, “are everywhere the basis of society and true friends of liberty.”35 The reformers ultimate goal was to use the public domain to provide free land to a class of actual settlers. Legislation from the 1840s through the 1860s seemed to be moving federal policy in that direction and, at the same time, making strides toward realizing the expansionist dream of agrarian empire. The Preemption Act of 1841 was unlike earlier preemption laws in that it was prospective. Rather than giving squatters a right to lands upon which they had illegally settled, it directed the government to dispose of surveyed public land by selling small plots to settlers who were willing to settle on it and cultivate it. While the preemption act did not provide free land, it was like a homestead law in the sense that it allowed settlers to move onto public domain and stake a claim. Land reformers also saw some success in the government’s treatment of the public domain in some of the territory acquired from Mexico and England. In areas where the government felt a need to build population it offered free land to attract settlers. The Oregon Donation Act of 1850 granted single individuals 320 acres and married couples 640 acres if they lived on the land and cultivated it for four years. Similar laws granted homesteads in Washington Territory and New Mexico. Congress also extended the preemption right to unsurveyed lands in the West.36 Land reformers continued to press for a general law providing free homesteads for actual settlers. Reformers pushed a homestead bill through Congress in 1860. President Buchanan vetoed that bill, but Lincoln’s victory in 1860 all but assured that another attempt would be successful. In May 1862, Congress overwhelmingly passed a law that provided free homesteads to any persons who were heads of families or twenty-one years of age and who were citizens or filed a pledge of their intention to become a citizen. In general homestead claims were limited to 160 acres and could be claimed only on surveyed lands. The Homestead Act of 1862 marked the crowning achievement for land reform. There can

be little doubt that land reformers won a significant victory and that the homestead and other laws they supported provided opportunities for some people to settle small farms in the West. Congress seemed to be moving in the direction of a policy that favored dispersing public land in small blocks to actual settlers. When it came to achieving the goal of agrarian empire, however, congressional policy had one major failing. It did not prohibit the government from continuing to sell public domain for revenue or do anything to discourage accumulation of land in large blocks. Land reformers of the late 1840s and 1850s were quite aware of this failing. Horace Greeley and the National Land Reform Association advocated banning sales of public land to speculators. George Julian called for an end to the policy of “frittering away” public lands by grants to states and private corporations for the benefit of “special objects.”37 The Homestead Act was simply superimposed on an already existing land policy. Paul Wallace Gates, who spent a lifetime studying land policy, counted 3500 federal land laws in existence in 1880. Nothing in the law prohibited the government from offering public lands for cash sale. On the contrary, Gates noted that after Congress enacted the 1862 Homestead Law some 84 million acres of public lands were available for unlimited purchase and that speculators and lumber companies, beating preemptors and homesteaders to the spot, were generally able to purchase large blocks of choice land at $1.25 per acre. In addition, Congress granted roughly 120 million acres in railroad grants. As a result, Gates speculated that, “Anxious landseekers moving westward after 1862 may well have wondered whether the Homestead Act was the boon it was supposed to be.”38 Gates referred to the result as an “incongruous land system.”39 Some aspects of the system promised distribution of land to actual settlers, but others provided ample opportunity to accumulate large blocks and remove vast quantities of land from the public domain that might otherwise have been available for homesteading. It was also a system that was destined to produce conflict over specific tracts of land. This was nowhere more apparent than in disputes over Mexican land grants in California and those arising from Congress’s grants to aid in construction of railroads. These disputes often found their way to the federal courts. The U.S. Supreme Court alone handled hundreds of such cases: most of them complex and many dealing with minutia of specific statutes. Simply counting outcomes is not a very profitable method of finding a pattern or general policy preference. Some of the decisions favored railroads or large landowners, some favored settlers. A better means of understanding the court’s sentiment is to look at cases that illustrated the presumptions of law the court applied in land cases. These cases reveal that the land policy as it emerged from the courts was not so much incongruous as it was hostile to the concept of providing free or cheap land to actual settlers. This sentiment was quickly demonstrated in cases involving Mexican land grants. As part of the 1848 Treaty of Guadalupe Hidalgo, ending the war with Mexico, the United States promised, “Property of every kind now established [in the ceded territory], shall be inviolably respected.” Most commentators agreed that these terms guaranteed that all grants of land made by the Mexican government were to be considered valid to the same extent that they would have been valid if the territory had remained under Mexican rule.40 What this meant in practice, however, was open to interpretation. Congress attempted to sort out the problem with

the California Land Act of 1851.41 Over objections of grant holders, who would have preferred a plan that allowed them to simply register their claim and presume its validity, the California Land Act required grant holders to appear before a commission to prove his or her claim. By placing the burden of proof on people who claimed to hold Mexican grants, the new law seemed to create a presumption that favored designating as much land as possible as public domain that would then be available for settlement. That changed with the U.S. Supreme Court’s decision in Frémont v. United States (1854). The case involved John C. Frémont’s claim to a rancho called Las Mariposas.42 In 1847 Frémont, the famous explorer and politician, purchased the rights to this grant from Juan B. Alvarado. The original 1844 Mexican grant was generous. It was a floating grant that gave Alvarado the exclusive right to lay out a rancho of ten square leagues (approximately 44,784 acres or 70 square miles) from within a larger specified area estimated to be as much as 900 square miles. But the grant also included a number of explicit conditions. Alvarado was forbidden to sell the property, and he was required to inhabit it within a year, survey the property, and place landmarks. Mexican law required that Alvarado obtain a patent from the local alcalde, and file a crude map called a diseño with the supreme government. At the time Frémont presented his claim to the United States land commission in 1852, neither he nor Alvarado had done anything to meet these conditions.43 All arguments aside, it is fair to say that the letter of the Mexican law had not been followed with respect to this grant. Existing precedent indicated that the Court would rule that Frémont’s claim was invalid. In earlier cases involving claims in Florida and Louisiana, the Court had required that claimants strictly comply with the letter of Spanish law under which the grants were made.44 But Mexican law, they concluded, was different. In an opinion written by Chief Justice Taney, the Court applied informal “Mexican customs and usages” and “the common or unwritten law of every civilized country” to hold for Frémont. Taney had written some of the earlier cases that required strict compliance; nevertheless, he distinguished Frémont’s claim by noting that the earlier precedent involved Spanish law, which had made the “conditions precedent” to ownership. Here, he reasoned, the Mexican government has granted the land outright. Because the grant conveyed a present and immediate interest, the conditions imposed on Alvarado were only “conditions subsequent.”45 If the Court seemed to be searching for a way to recognize the grant, it was not the only example. In the 1860s the U.S. Supreme Court held that the words “five leagues more or less” supported a grantee’s claim for eleven leagues. It validated a grant of two leagues even though the document had been altered, changing it from one league to two. And it validated a grant even though it was dated after the time Mexican authorities said they had quit issuing grants. This trend continued into the 1870s and 1880s.46 It should be pointed out that former Mexican citizens were seldom the beneficiaries of these rulings.47 If these cases are viewed as a struggle between individuals claiming Mexican land grants and the government claiming public domain, one might say the Court weighed the equities in favor of individual property rights. However, the underlying struggle, in cases like Frémont, was actually over how land in the far west would be distributed.48 At a time when land reform

seemed to be gaining ground in Congress, Frémont set the tone for future decisions in the courts, creating a presumption of law that tended to favor distribution of land in the western territories to corporate land companies, land speculators, and other holders of large blocks of land. The same tone emerged from cases involving federal grants to aid in the building of railroads. Although specific railroad grants differed in some details, most shared common characteristics. The grants were made either directly to the railroad or to a state or territory to be used for the purpose of building a railroad. The grants did not usually specify a particular route, but rather required that a railroad be constructed from one place to another. The government gave railroads land for a right of way. But it also granted the railroads large blocks of land with the idea that the land would be used to finance construction or provide raw materials. Typically these grants gave the railroads the land in alternating twenty sections parcels on either side of the right of way. If property within these parcels was already claimed through homestead, preemption, or purchase, the railroad could choose an equal amount of “lieu lands” from the public domain. Before any land was actually transferred, however, the railroad was required to form a company, lay out a route, file a route plan, and build sections of the road. Usually the railroad received some land after a specified distance of the line was completed and received the rest as construction progressed. One source of conflict regarding railroad grants involved the question of who possessed what rights to the land during the time between the date Congress made the grant and the time the railroad met the conditions of the grant. It is important to emphasize that this question did not apply only to right of way. It also applied to vast, but vaguely identified, expanses of land granted to the railroads as sources of revenue and raw materials. Railroad attorneys argued that these grants were grants in praesenti, that is, they took effect immediately and vested a property right at the moment the act of Congress was passed. Early decisions rejected this theory. In Rice v. Minnesota & N.W.R. Co. (1861), a divided Court ruled that the railroad obtained no rights to the property until it had completed twenty miles of the road.49 Justice Nelson later provided perhaps the strongest rational for rejecting the railroads’ theory, explaining that, “Until the line of the railroad was definitely fixed upon the ground there could be no certainty as to the particular sections of lands falling within the grant.”50 Thirteen years later, however, the Court completely reversed this rule. De-emphasizing the conditional nature of the grant, Justice Stephen Field ruled that federal grants to railroads were indeed in praesenti. At the time Congress passed the statute that created the grant, the railroad obtained a property right in land, even if the location of that land was not clearly identified. The direct impact of this rule was that railroads presumed to have a property right in the land they eventually chose. This right was superior to homesteaders or preemptors who settled on the land in the interim period or anyone else who laid a claim to the land during that time. There was a reasonable policy rationale for choosing the in praesenti rule. Congress’s purpose in providing the land was to allow the railroads to raise the money needed for construction of the lines. At a time when a fledging railroad might have little more to offer than hope and the land granted, the in praesenti rule added weight to the grant.

The in praesenti rule may have represented a policy choice, however it was a choice fraught with social costs. It was arguably not the choice favored by Congress. And it was a choice that vividly displayed the judiciary’s attitude toward use of the public domain. Because most grants gave railroads flexibility in choosing the specific route, the status of land that lay along any of the possible routes was in question until the railroad filed a final route plan. Vast quantities of the public domain were tied up for months and even years. Until there was a route plan on file, settlers and other businesses had no legal notice of the railroad’s claim. Some of these people may have been taking a calculated risk, but the rule also worked a hardship on innocent homesteaders, preemptors, or purchasers who settled on land between the time of the grant and the time of filing the route plan. In Iowa Railroad Land Company v. Courtright (1874), one of the first cases applying the in praesenti rule, a railroad transferred land to one of its contractors in payment for grading work. The railroad failed to complete the line, thus failing to meet the conditions of the grant. Although the grant was then forfeited, the Court held that transfer gave the contractor a good title to the property.51 It is interesting that Courtright occurred during the time of the Credit Mobilier scandal. In 1867 key directors of the Union Pacific Railroad set up a corporation, Credit Mobilier, they completely owned. Acting as Union Pacific directors, they then gave construction and service contracts on wildly favorably terms to their own company. In this way they were able to siphon off to Credit Mobilier money that others had invested or the federal government had paid to Union Pacific. Revelation of the scheme and of payoffs to key members of Congress led to passage in 1873 of the Credit Mobilier Act. This statute directed the Secretary of Treasury to withhold payments of money the government owed to Union Pacific and ordered the attorney general to attempt to recover money lost as a result of the scheme. In 1879 the U.S. Supreme Court overruled the act, stating that while the Credit Mobilier scheme constituted fraud against innocent stockholders of Union Pacific the government had no right to intervene.52 No fraud was alleged in the Courtright case. However, events of the time might justify suspicions that railroads could take advantage of the in praesenti rule by passing land to dummy or related corporations. A later offshoot of the in praesenti rule held that, although all grants provided that the railroad’s failure to meet the conditions forfeited the grant, forfeiture was not automatic.53 What this meant was that, even in the case of a failed venture, a railroad kept the rights under the grant until Congress or the attorney general took positive action to forfeit it. This interpretation seemed to be an invitation to political shenanigans. More clearly, it had the effect of once again throwing the status of vast quantities of land into limbo. Nevertheless there was nothing inherently sinister about the in praesenti rule. The Court chose a time for property rights to pass from the public domain to a private owner. It applied the rule with consistency and, in later decades of the nineteenth century, sometimes applied it to the disadvantage of railroads. The in praesenti rule, and the presumption of property right it gives to railroads that claim public domain, says a great deal about the Court’s sentiment in public land cases. The Court’s use of the rule is even more meaningful, however, when it is contrasted to the presumptions the Court applied to individuals who claimed public domain

under homestead and preemption laws. The Homestead Act of 1862 and Preemption Act of 1841 both required a settler to occupy the land, cultivate and improve it, and pay a small price or administrative fee to the government. Federal courts tended to strictly interpret these rules holding that, until they had satisfied all three of the requirements, settlers under these laws obtained no property right in their claim. Frisbie v. Whitney (1869) serves as an example. This case involved a dispute over the Suscol Ranch in Northern California. John Frisbie claimed ownership to the ranch under a Mexican land grant. He kept part of the ranch and sold other portions of it to investors in the 1850s. In 1862, however, the U.S. Supreme Court declared the Mexican grant to be invalid.54 Assuming that the Supreme Court decision meant that the land was public domain, settlers streamed into the area and staked claims under the Preemption Act of 1841. A year later Congress complicated matters when it passed a law giving former claimants under the Suscol grant the right to claim “as much land as had been reduced to their possession” prior to the Supreme Court’s decision invalidating that grant. Taking advantage of Congress’s enactment, Frisbie secured a federal patent—and thus formal title—to a large block of the former Suscol lands. During the time between the Supreme Court decision and Congress’s action, Whitney had settled on land within the block Frisbie claimed. Whitney erected a house, occupied it with his family, cultivated crops, improved the land, and filed an application in the general land office. He argued that, because he had complied with these steps as required by the Preemption Act of 1841, he was a “bona fide settler” who had a “vested right” to the lands. Although Frisbie had obtained formal title, Whitney believed he had a superior equitable right to the land. Given the Court’s earlier decisions that gave grant holders like John Frémont a property interest in land even though they had not fully satisfied the conditions of their grant, he might have been justified in thinking so. But the Supreme Court did not see it that way. Whitney had taken some steps to secure the land it noted, but the act of occupying land and cultivating it in accordance with the law did not give settlers either a vested or an equitable interest in their claim. The preemption laws gave settlers no equitable rights it reasoned.55 Until they had paid the fee, the government still owned the land and could dispose of it in any matter it saw fit. Land reformer George Julian served as the attorney in another case that tested the extent of settlers’ rights. In the Yosemite Valley Case he argued that the government was bound by good faith to protect settlers who had cultivated and improved the land.56 The law treated unperfected Mexican grants as a property right. It treated conditional railroad grants as property right. For Julian and other land reformers, the act of staking a claim under homestead and preemption statutes likewise created a property right. The federal courts did not see it that way, however. They treated homesteading as a privilege.57 For them, Congress’s act of offering a homestead to anyone who would settle on the land and cultivate it was nothing more than a gratuity: one that the government could deny or withdraw at its discretion.

CONCLUSION

Expansionists of the 1840s maintained that America could absorb, acquire, and conquer the new territory in the West without consequently acquiring the baggage of imperialism. American expansion, they argued would be nothing like the European imperialism they so despised. Where European imperialism tended to strengthen and reinforce an aristocratic elite, American expansion would have a leveling effect that would strengthen representative democracy and protect liberty. This was possible, they said, because the acquisition of new territory in the West would provide an opportunity for widespread ownership of land. The resulting explosion of the class of independent small farmers would reduce to insignificance the influence of connected elite on the democratic process. The expansionist promise presumed that the newly acquired public domain would be distributed in a way that encouraged widespread ownership of the land. Land reformers picked up on this theme and pressed for a land policy that provided cheap or free land in small plots to actual settlers. Despite the enactment of the Homestead Act of 1862 and other reform legislation, however, the idea of distributing public domain directly to actual settlers never dominated federal land policy. Inconsistent federal legislation removed millions of acres from the pool of land that might otherwise have been available for homesteading and created an environment that assured conflict between settlers and large landholders. When such conflict reached the courts, judicial interpretation of federal land laws tended to be hostile to homesteading. By the 1890s it was inescapable that land reform had failed to achieve its goal. Late nineteenth-century reformers certainly thought land reform had failed. They continued to complain about the growth of a land-holding elite. Henry George, for example, observed in his 1871 Our Land and Land Policy that, “In all of the new States of the Union land monopolization has gone on at an alarming rate, but in none of them so fast as in California.”58 In Progress and Poverty (1880), written almost a decade later, he continued to believe that, “Poverty deepens and wealth increases ... because land, which is the source of all wealth and the field of all labor, is monopolized.”59 Many historians have also viewed the efforts at land reform as a failure. Noting that between passage of the Act in 1862 and 1900, only 372,659 new homestead entries were perfected, Henry Nash Smith concluded that the Homestead Act almost wholly failed to have the result predicted.60 Paul Wallace Gates, the most prolific historian of land policy, provided a variety of other indicators of the failure of land policy to achieve this goal. For example, he calculated that between 1868 and 1873, with more than six million acres of public land available, California saw only 5,009 new homestead entries totaling a mere 809,621 acres.61 On the other side of the ledger, Gates emphasized the breathtaking size of large land holdings that were carved out of the public domain.62 He also pointed out that, contrary to land reform’s goal of encouraging a class of yeoman farmers, in the late nineteenth century a significant number of farms were operated by landlords and worked by tenants. 63 Gates was less direct than Smith in declaring homestead a failure, but the overall tenor of his work is one of disappointment for an opportunity lost. In a lifetime of study Gates produced an incredible body of work capturing the details and impact of public land policy. Yet he has had his critics. Some have observed that railroads

played an important role in colonization of the West and that land companies and land speculators functioned as intermediaries in transferring land from the government into the hands of private owners.64 Applying a version of cost-benefit analysis, some economic historians argue that the policies the government actually pursued were an efficient means of settling the West.65 Others maintain that, even given access to free land, it was exceedingly difficult for eastern workers and farmers to raise the resources necessary to take advantage of homestead legislation.66 Their point is that Gates’s tendency to idealize the small farm and paint the history of land policy as a battle between settlers and speculators is too simplistic. Thus, Donald Pisani advises that historians should mine the details and avoid treating the history of land policy as a morality play that pits homesteaders against speculators.67 He and others point out that the evils attributed to land speculation were really the result of a great excess of land in relation to population. They also maintain that the tendency for public land to fall into the hands of large landowners was attributable to the nature of the geography and economy of parts of the West.68 Such economic histories undoubtedly add richness and depth to our understanding of what occurred in the nineteenth century. It is important to realize, however, that they emphasize economic efficiency rather than political ideals. If they are correct, these studies imply that 1840s expansionists sold the country on a pipe dream. Whether expansion failed to create economic opportunity for the white working class is a matter of debate. But whether it failed in its political promise, to protect representative democracy from the corrupting influence of a connected elite, is not. No one disagrees that the federal government’s land policy distributed much of the public domain to large landholders. They only maintain that geography or circumstances made this inevitable or that railroads and land companies served as an efficient conduit for transferring public lands into the hands of small farmers. In either case, rather than reducing the influence of a connected elite, this land policy created a new elite. Efficient populating of the West did not produce the agrarian republic expansionists had promised. It may be worthwhile to speculate why. One possibility is that expansionists’ ideas were sound in principle but that representative democracy was already corrupted beyond salvation, or that the temptation to use the new territory to amass incredible wealth and political power was too great to be resisted. If American democracy was suffering from the influence of connected elites, it may have been absurd to think that simply throwing more public assets into the mix would create the kind of representative democracy that the followers of Jefferson and Jackson envisioned. Another possibility is that expansionists and reformers misidentified land as the key source of economic and political power. Although the 1840s is thought of as a prelude to civil war and an era of western expansion, two other historical developments also began during this time. Development of the general corporation provided an efficient vehicle, even better than land ownership, to amass great wealth. The transportation revolution, especially the development of the railroad, provided a recipient for government largess, a product that could yield great wealth, and, in some instances, a means of controlling trade. The corporation and the railroad did become targets for reformers like the Grangers later in the century. Certainly

land reformers did not entirely ignore these developments either, but their emphasis misconstrued the power of equal land distribution to save representative democracy from the corrupting influence of a connected elite. It is, of course, possible that proponents of expansion lied. They never really believed that the acquisition of new territory would foster an agrarian republic or that American expansion into Texas, disputed regions in Oregon, and Mexican territory was much different from British empire building. A less cynical version of the same idea is that Americans deluded themselves: expansionists in the desire to find a justification for their policy and Eastern workers and farmers in the hope of finding a solution to their ills. It may be that opponents of expansion were right and that the kind of territorial acquisition in which the United States engaged in the 1840s is incompatible with republican government.

NOTES 1 New York Morning News, February 27, 1845. O’Sullivan had used the phrase earlier with regard to the annexation of Texas. “Annexation,” The Democratic Review 17 (July and August): 5—10, 5. For background and quotations see Robert W. Johannsen, “The Meaning of Manifest Destiny,” in Sam W. Haynes and Christopher Morris, eds., Manifest Destiny and Empire: American Antebellum Expansionism (College Station: Texas A& M University Press, 1997), 7—9. 2 John H. Schroeder, Mr. Polk’s War: American Opposition and Dissent, 1846—1848 (Madison: The University of Wisconsin Press, 1973), 34. 3 Sam W. Haynes, James K. Polk and the Expansionist Impulse (New York: Longman, 1997), 90—91. 4 Thomas R. Hietala, Manifest Design: Anxious Aggrandizement in Late Jacksonian America (Ithaca, N.Y: Cornell University Press, 1985) makes this point most forcefully. 5 Hietala, Manifest Design, 209 expressly makes this point in a footnote, but Hietala’s entire book represents an attempt to point out a variety of issues at the same time it provides a detailed treatment of the slavery issue. 6 James D. Richardson, Messages and Papers of the Presidents (NP, 1898), 4:588; Polk’s Message to the Senate and House of Representatives (July 6, 1848), as quoted in Hietala, Manifest Design, 89. 7 Hietala, Manifest Design, 49. 8 Schroeder, Mr. Polk’s War, 46—50. The two million dollar bill, with the Wilmot Proviso added, passed in the House of Representatives but died after a short filibuster in the Senate. The issue wasn’t settled until the Compromise of 1850, which admitted California as a free state and created new territories of New Mexico and Utah with instructions that each would be admitted as a state “with or without slavery, as their constitutions may prescribe at the time of

admission.” 9 Cong. Globe, 28th Cong., 2d sess., 362 (February 27, 1845); Journal of the Senate, 28th Cong., 2d sess., February 27, 1845 (Washington, 1845); Cong. Globe, 28th Cong., 2d sess., 372 (February 28, 1845); Hietala, Manifest Design, 41—54. 10 American Insurance Co. v. 365 Bales of Cotton (Canter), 26 U.S. 511, 542 (1828). Sarah H. Cleveland, “Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth-Century Origins of Plenary Power over Foreign Affairs,” Texas Law Review 81 (November 2002), 1—284, traces the growth of the concept of inherent powers of sovereignty in American constitutional law. 11 Albert K. Weinberg, Manifest Destiny: A Study of Nationalist Expansionism in American History (Glouchester, Mass.: Peter Smith, 1958), 191. 12 Weinberg, Manifest Destiny, 224—25. 13 Weinberg, Manifest Destiny, 147. 14 Weinberg, Manifest Destiny, 72—99 refers to this theory as “The Destined Use of the Soil.” Anders Stephanson, Manifest Destiny: American Expansionism and the Empire of Right (New York: Hill and Wang, 1995), 24—26. Both authors note the difficulty of applying the theory to the Cherokee, who had adopted agriculture and “other accoutrements of civilization.” See also, Hietala, Manifest Design, 194, referring to a natural right to land not fully utilized by its inhabitants. 15 Henry David Thoreau, Civil Disobedience, in Charles R. Anderson, ed., Thoreau’s Vision (Englewood Cliffs, N.J.: Prentice-Hall, 1973), 195. 16 Richardson, Messages of the Presidents, 4:443; Schroeder, Mr. Polk’s War, 3—19. 17 Calhoun to Conner, May 15, 1846, Henry C. Conner papers, Library of Congress, as quoted in Schroeder, Mr. Polk’s War, 24. For a more detailed discussion of the activities leading to the war see Schroeder, chapters 1 and 2. 18 Cong. Globe, 30th Cong., 1st sess., 64 (1848), as quoted in Schroeder, Mr. Polk’s War, 153. 19 Cong. Globe, 30th Cong., 1st sess., 95 (1848), as quoted in Schroeder, Mr. Polk’s War, 154. The Supreme Court did not weigh in on this issue until after the war. Cross v. Harrison, 57 U.S. (16 How.) 164 (1853) recognized that the president, rather than Congress, had the power to establish military government in California. In Fleming v. Page, 50 U.S. (9 How.) 603 (1850), it recognized that the United States could demand and acquire territory as a condition of peace. 20 New York Tribune, November 27, 1846, as quoted in Schroeder, Mr. Polk’s War, 54-55.

21 Hietala, Manifest Design, 194-95; Haynes, James K. Polk, 98—100. 22 Weinberg, Manifest Destiny, 160—89. 23 Albert Gallatin, “Peace With Mexico,” in Henry Adams, ed., The Writing of Albert Gallatin (Philadelphia: J. B. Lippincott & Co., 1879) 3:585—86. 24 Underwood spoke during debates on a proposal to annex all of Mexico. Cong. Globe, 30th Cong., 1st sess., app., 308 (1848), as cited in Schroeder, Mr. Polk’s War, 155—56. 25 Cong. Globe, 29th Cong., 2nd sess., app., 213—21 (February 10, 1847), as cited in Hietala, Manifest Design, 161—62; see also Robert W. Johannsen, The Meaning of Manifest Destiny, in Haynes and Morris, Manifest Destiny and Empire, 15. 26 For a detailed discussion of racism in the debate itself see, Hietala, Manifest Design, chap. 5, and Schroeder, Mr. Polk’s War, chap. 4. Standard books on racism in the development of the American West include: Leonard Pitt, The Decline of the Californios (Berkeley: University of California Press, 1966); Robert F. Heizer and Alan F. Almquist, The Other Californians (Berkeley: University of California Press, 1971); David Monte-jano, Anglos and Mexicans in the Making of Texas, 1836—1986 (Austin: University of Texas Press, 1987). 27 Peter S. Onuf, Jefferson’s Empire: The Language of American Nationhood (Charlottesville: University Press of Virginia, 2000) develops these themes in detail. See also, Hietala, Manifest Design, 174—76, 182—83. 28 Hietala, Manifest Design, 115—16. 29 William F. Deverell, “To Loosen the Safety Valve: Eastern Workers and Western Lands,” Western Historical Quarterly 29 (August 1988): 269—85, links the safety valve theory about expansion to an emerging labor movement and the effect of expansion on labor through the 1880s; Hietala, Manifest Design, 102—104, also links the safety valve theory and labor. 30 See Harry L. Watson, Liberty and Power: The Politics of Jacksonian America (New York: Noonday Press, 1992); Lawrence Fredrick Kohl, The Politics of Individualism: Parties and the American Character in the Jacksonian Era (New York: Oxford University Press, 1989); Arthur M. Schlesinger, Jr., The Age of Jackson (Boston: Little, Brown, 1945); Marvin Meyers, The Jacksonian Persuasion: Politics and Belief (Stanford, Calif.: Stanford University Press, 1957); Donald B. Cole, The Presidency of Andrew Jackson (Lawrence: University Press of Kansas, 1993); Charles Sellers, The Market Revolution: Jacksonian America, 1815—1846 (New York: Oxford University Press, 1991); Daniel Feller, The Jacksonian Promise in America, 1815—1840 (Baltimore: Johns Hopkins University Press, 1995). 31 Onuf, Jefferson’s Empire, 36.

32 Hietala, Manifest Design, 256. See also ibid., 97, 121. 33 Paul Gates, History of Public Land Law Development (Washington, D.C.: U.S. Government Printing Office, 1968), 390—92. 34 George W. Julian, Speeches on Political Questions (New York: Hurd and Houghton, 1872), 51. 35 Julian, Speeches on Political Questions, 55. 36 Gates, History of Public Land Law Development, 388—89, 395. 37 Julian, Speeches on Political Questions, 51. Reformers advocated making homesteads inalienable, placing restrictions on inheritance, and providing that land revert to the government under certain conditions. Although the Homestead Act did contain some protections from misuse none of these more radical provisions to avoid accumulation of large blocks found their way into law. Gates, History of Public Land Law Development, 392—97. 38 Gates, History of Public Land Law Development, 397. Gates also noted that a variety of other laws dealing with swamp lands, timber lands, and school lands also closed much land to homesteading. 39 Gates, History of Public Land Law Development, chap. 16; Gates, “The Homestead Act in an Incongruous Land System,” American Historical Review 41 (July 1936): 652—81. 40 See Richard Griswold del Castillo, The Treaty of Guadalupe Hidalgo: A Legacy of Conflict (Norman: University of Oklahoma Press, 1990), 180, 182, 190; Charles I. Bevans, ed., Treaties and Other International Agreements, 1776—1949 (Washington, D.C.: Department of State, 1972), 9: 791—806. 41 An Act to Ascertain and Settle Private Land Claims in the State of California, 9 Stat. 631 (March 3, 1851). 42 Fremont v. United States, 58 U.S. (17 How.) 542 (1854). 43 See Lewis Grossman, “John C. Fremont, Mariposa and the Collision of Mexican and American Law,” Western Legal History 6 (Winter/Spring 1993): 17—50. 44 See Carl Brent Swisher, History of the Supreme Court of the United States. Vol. 5: The Taney Period 1836—1864. (New York: Macmillan, 1974), 780. 45 Frémont v. United States, 58 U.S. (17 How.) 558. Although the California Land Act allowed the commission and the courts to consider Mexican usages and customs to help determine the validity of a grant, the Court in Frémont used them to a much greater end. The decision created a revised general guideline that significantly reduced the burden of proof and

made it much easier for those claiming large estates to prove that their claims were valid. 46 United States v. D’Aquirre, 68 U.S. (1 Wall.) 311 (1863); Malarin v. United States, 68 U.S. (1 Wall.) 282 (1863); United States v. Yorba, 68 U.S. (1 Wall.) 412 (1863); United States v. Halleck, 68 U.S. (1 Wall.) 439 (1863). Mexican law limited the size of grants to eleven leagues. Nevertheless, in Trameling v. Interstate Freehold Company, 93 U.S. 644 (1876); and U.S. Maxwell Land-Grant Case, 121 U.S. 325 (1887) and 122 U.S. 365 (1887), the court validated grants that exceeded that limit. 47 See, for example, W. W. Robinson, Land in California (Berkeley: University of California Press, 1948); Paul Wallace Gates, Land and Law in California: Essays on Land Policies (Ames: Iowa State University Press, 1991). 48 The struggle in Frémont involved the right to mine gold in Mariposa County, California, and was a little more complicated. Ultimately it pitted Frémont and his allies against a somewhat smaller mining company. Independent miners in the county fought against Frémont on the political front. See Biddle Boggs v. Merced Mining Company, 14 Cal. 279 (1859); Grossman, “John C. Frémont,” 17—50. I have discussed this in more detail in Paul Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age (Lawrence: University Press of Kansas, 1997), 70—92. 49 Rice v. Minnesota & N. W. R. Co., 66 U.S. 358 (1861). 50 Burlington & M.R.R. Co. v. Fremont County, 79 U.S. 89, 95 (1869). Some cases involved grants to the state or territory for the purpose of building a railroad. 51 Iowa Railroad Land Company v. Courtright, 88 U.S. 310 (1874). 52 United States v. Union Pacific R.R., 98 U.S. 569 (1879); see also United States v. Union Pacific R.R, 91 U.S. 72 (1875). 53 Schulenberg v. Harriman, 88 U.S. 44 (1874); Bybee v. Oregon & California R’d Co., 139 U.S. 663 (1890). 54 United States v. Valejo, 66 U.S. 541 (1862). 55 Frisbie v. Whitney, 76 U.S. (9 Wall.) 187 (1869). Gates, Land Law in California, 212—28 discusses this case in more detail. 56 Yosemite Valley Case (Hutchings v. Low), 82 U.S. (15 Wall.) 77 (1872); see Brief for the Plaintiff in Error, microfilm records. 57 These courts treated homesteaders in much the same way some twentieth-century courts would treat welfare recipients. See Smith v. Board of Commissioners of the District of Columbia, 259 F. Supp. 423 (USDCDC, 1966); but see Goldberg v. Kelly, 397 U.S. 254

(1970); Charles A. Reich, “The New Property,” 73 Yale Law Journal 733 (1964). 58 Henry George, Our Land and Land Policy, 36, reprinted in Paul Wallace Gates, The Fruits of Land Speculation (New York: Arno Press, 1979). 59 Henry George, Progress and Poverty (1880; repr., New York: Robert Schalkenbach Foundation, 1940), 328. 60 Henry Nash Smith, Virgin Land: The American West as Symbol and Myth (Cambridge, Mass.: Harvard University Press, 1950), 190. 61 Gates, Land and Law in California, 263. See Donald J. Pisani, Water, Land, and Law in the West: The Limits of Public Policy 1850—1920 (Lawrence: University Press of Kansas, 1996), 90. 62 Gates, History of Public Land Law Development, 440. 63 Gates, History of Public Land Law Development, 218, 403, 442—43; see also Paul Wallace Gates, Landlords and Tenants on the Prairie Frontier (Ithaca, N.Y: Cornell University Press, 1973). 64 For a review of some of these works, see Harry N. Scheiber, “The Economic Historian as Realist and as Keeper of Democratic Ideals: Paul Wallace Gates’s Studies of American Land Policy,” The Journal of Economic History 40 (September 1980): 585—93. 65 Richard L. Stroup, “Buying Misery with Federal Land,” Public Choice 57 (1988): 69; Terry L. Anderson and Peter J. Hill, “The Race for Property Rights,” Journal of Law and Economics 33 (1990): 177—98. 66 Deverell, “To Loosen the Safety Valve: Eastern Workers and Western Lands,” 285. 67 Pisani, Water, Land, and Law in the West, 222—23n5. 68 Daniel Feller, The Public Land in Jacksonian Politics (Madison: The University of Wisconsin Press, 1984), 195—97; Pisani, Water, Land, and Law in the West, 91—101.

8 Puerto Rico’s Political Status: The Long-Term Effects of American Expansionist Discourse Efrén Rivera Ramos The conundrum of the status of Puerto Rico has deep roots in the decisions known as the Insular Cases.1 Those cases were decided between 1901 and 1922 to deal with the constitutional issues arising from the annexation of Hawaii in 1898, the acquisition of the islands of Puerto Rico, Guam, and the Philippines as a result of the Spanish-American War of the same year, and, to a lesser extent, the situation still prevailing in the Territory of Alaska. Those decisions, in turn, reflected many of the attitudes that permeated the expansionist movement of the United States during the nineteenth century. This chapter explores some of the issues emanating from the basic framework established by the Insular Cases that relate to the constitutional and political location of Puerto Rico and Puerto Ricans within the United States as a political community as we enter the twenty-first century. I address three basic topics: the power perspective from which the U.S. government approaches the matter; the question of citizenship; and the issue of rights. I also mention some of the difficulties inherent in the several alternatives proposed to alter the present relationship between the United States and Puerto Rico. In the course of the analysis I hope to shed some light on the relevance of the questions surrounding the status of Puerto Rico to other political and constitutional issues facing the United States.

SOME BASIC HISTORICAL FACTS The Puerto Rican territory comprises a group of islands located between the Caribbean Sea and the Atlantic Ocean which have a combined extension of slightly more than 3,500 square miles. According to the latest census estimates, its current population is about 3.9 million.2 Close to 3.7 million people of Puerto Rican descent live in the states and other territories of the United States.3 Puerto Rico was a colony of Spain for over four hundred years. During that time, a convergence of peoples, which included the islands’ native inhabitants, European settlers,

mostly from the Iberian Peninsula and the Canary Islands, and Africans brought to work as slaves, gradually conformed the ethnic and demographic characteristics of the particular people that we now know as Puerto Ricans. When the United States acquired Puerto Rico, as a result of the Spanish-American War, the islands had only about one million inhabitants and housed a mostly agrarian, rural population, alongside an incipient manufacturing sector and a slowly growing rural and urban proletariat. Throughout the centuries, the country had served mainly as a Spanish military post in the region. However, by the end of the nineteenth century, it had an organized civilian government, a formal legal system based on the continental European civil law tradition, and some relatively well established economic, cultural, and civic institutions. Spanish was the prevalent written and spoken language. Most Puerto Rican professionals and intellectuals had been educated in Spain or Cuba, although a relatively small number had studied or lived in the United States.4 Upon occupying Puerto Rico, the United States installed a military government that lasted until 1900. Two successive organic laws, passed in 1900 and 1917, provided for the organization of the civilian government of the new territory.5 In 1917 Puerto Ricans were collectively made U.S. citizens.6 Until 1947, the governor of Puerto Rico was appointed by the president of the United States. The president also appointed the justices of the Puerto Rico Supreme Court. In 1950, the U.S. Congress authorized Puerto Ricans to draft their own constitution,7 which was finally adopted in 1952. Pursuant to the 1952 Constitution, Puerto Rico now has an elected governor, a popularly elected two-chamber legislature, and a Supreme Court whose members are appointed by the governor with the advice and consent of the Puerto Rican Senate. In the early twentieth century, Puerto Rico was declared by the U.S. Supreme Court an “unincorporated territory” of the United States.8 Residents of Puerto Rico do not vote for the U.S. president nor elect voting representatives to Congress. Instead, they are represented by a nonvoting Resident Commissioner who sits in the House. The U.S. Congress legislates over many fundamental aspects of Puerto Rican life, including citizenship, the currency, the postal service, foreign affairs, military defense, communications, labor relations, the environment, commerce, finance, health and welfare, and many others. By federal legislation, residents of Puerto Rico are exempted from paying federal income tax, although they do contribute Social Security and other taxes.9 Many federal social welfare programs have been extended to Puerto Rican residents, although usually with caps inferior to those allocated to the states.10 The executive branch of the U.S. government performs important governmental functions in Puerto Rico. The U.S. military possesses numerous facilities and carries out multiple operations in Puerto Rican territory. Many provisions of the U.S. Constitution have been held to apply to Puerto Rico. These include the Supremacy Clause of Article VI, the Territories Clause of Article IV, and most of the guarantees of the Bill of Rights.11Decisions of the U.S. Supreme Court are binding on the islands. In certain circumstances, that Court may review decisions rendered by the Supreme

Court of Puerto Rico.12 The U.S. District Court for the District of Puerto Rico and the U.S. Court of Appeals for the First Circuit, to which Puerto Rico has been assigned, pass judgment over a variety of legal controversies that affect the country’s government and population.13 Most Puerto Ricans consider themselves a distinct national group.14 The vast majority of those residing in Puerto Rico speak Spanish as their first language and feel extremely proud of their Puerto Rican national heritage. Puerto Rico routinely sends its own representatives to international sports competitions, including its own Olympic team. It has observer status, but not full membership, in several regional and international economic and political bodies. As U.S. citizens, Puerto Ricans, whether born in Puerto Rico or in the mainland, carry U.S. passports when traveling abroad.

THE INSULAR CASES The basic constitutional framework designed to govern Puerto Rico as a territory of the United States was established in the Insular Cases decided in the early part of the twentieth century. After the acquisition of the territories formerly held by Spain, the United States was faced with several crucial constitutional and political questions. What was the location of these new possessions in the constitutional system of the nation? What was the extent of the power of the U.S. Congress, the federal executive, and the federal courts over these lands? What rights accrued to their inhabitants? Was the Constitution fully extensive to them? Did the Constitution allow the federal government to acquire territory and hold it under its direct control without fully incorporating its population into the American body politic? After a very intense national debate, the answers began to flow from the U.S. Supreme Court, which eventually settled these questions for all practical purposes. The constitutional doctrine established by the Insular Cases developed gradually over a span of twenty-one years, from the first cases decided in 1901 to the last decision of the series rendered in 1922. However, by 1904 the central elements of the doctrine were already in place. The doctrine is relatively simple to state. The Court started by asserting that the Constitution did confer power on the federal government to acquire territory, by virtue of several constitutional provisions, including the power to make war. Then, it proceeded to make a distinction, until then unknown in U.S. constitutional jurisprudence, between what it called “incorporated” and “unincorporated” territory. Incorporated territory, according to the Court, was territory that was constitutionally part of the United States. Its inhabitants were clearly intended to be integrated into the American political community, through the eventual admission of the territory as one of the states of the Union. Unincorporated territory, on the other hand, “belongs to, but is not a part of the United States.”15 Over this type of territory Congress enjoys “plenary powers.” In Grafton v. United States,16 Justice Harlan clarified the meaning of this concept. He explained that the relationship between a territory and the United States was not the same as that between a state and the U.S. government. The government of a state derives its powers from the people of the state, whereas the government of the territory owes its existence wholly to the United States. The Court thus seems to equate plenary to exclusive power. The U.S. government could exert over the territory power that it could not

exercise over the states. “The jurisdiction and authority of the United States over that territory [referring to the Philippines] and its inhabitants, for all legitimate purposes of government is paramount,” Justice Harlan asserted. This power, however, is not absolute, for it is restrained by some then-undefined “fundamental rights” possessed by anyone subject to the authority of the U.S. government. Many of the cases decided by the Court after 1904 constituted attempts to clarify, little by little, what those fundamental rights might be. The constitutional doctrine of the Insular Cases is still considered good law. It has been reiterated over the decades by the U.S. Supreme Court not only to address controversies related to the territories to which it applies,17 but to buttress decisions taken in other, unrelated legal contexts.18 Lower federal courts, Congress, and the executive have continuously relied on those decisions to justify their exercise of power over the lands and peoples of the territories. The doctrine, in essence, constituted the unincorporated territories into subordinated political communities subject to the plenary power of Congress, and their residents into subjects of the federal government with restricted rights. Those decisions, and the political and constitutional understandings upon which they rested, had wider implications for the United States as a political community. First, they legitimated the proposition that there are places that can be subjected to the full authority of the United States, without being considered part of the United States as a political community. They also confirmed the principle that peoples subjected to the full authority of the United States can be denied certain rights, or put another way, that people subjected to the full authority of the United States do not necessarily enjoy the full panoply of rights enshrined in the U.S. Constitution. Thirdly, they opened the way for still another framework of fragmented American citizenship that distinguishes among classes of U.S. citizens, recognizing full rights to some and lesser rights to others. In other words, the constitutional framework adopted by the Insular Cases provided for a fractured political community from the point of view of membership and rights. Of course, this latter phenomenon was not new in American political and social history. After all, Native Americans, African slaves and their descendants, and women had also been treated as less than full members of a radically fractured political community for many years. In this sense, the Insular Cases represented a high degree of continuity with that history. In another sense, that related to the history of territorial populations in the United States, the Insular Cases clearly marked a pronounced discontinuity. Until 1901, territory acquired by the United States was always thought to be intended to be integrated into the rest of the United States, however drawn out the process might be (as Alaskans would be prone to point out).19 The notion of the unincorporated territory deviated from that historical understanding. There is a very significant difference between the treatment given to the territories acquired as a result of the Spanish-American War and that purchased from France in 1803. The Louisiana Purchase Treaty of April 30, 1803, stated in its Article III that “The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all these rights, advantages and immunities of citizens of the United States, and in the mean time they

shall be maintained and protected in the free enjoyment of their liberty, property and the Religion which they profess.” In effect, the Louisiana Territory provided all or most of the territorial basis for the eventual configuration of fifteen states of the Union. The Treaty of Paris, which ended the Spanish-American War, did not contain similar provisions. It only stated that “The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.”20 This broad concession of power, together with the provisions of the Territories Clause of Article IV of the U.S. Constitution, has served as a basis for the “plenary powers” element of the doctrine of nonin-corporation and as a justification for the enormous flexibility accorded Congress in its dealings with the current territories. The constitutional doctrine and congressional policy designed to deal with the territories after 1898 were permeated by an ideological outlook that incorporated many of the beliefs of the times: Manifest Destiny, Social Darwinism, the idea of the inequality of peoples, and a racially grounded theory of democracy that viewed it as a privilege of the “Anglo-Saxon race” rather than as a right of those subjected to rule.21 The new lands were treated as property, an ideological stance that justified governing them with faculties akin to those enjoyed by property owners.22 Moreover, the doctrine of nonin-corporation was predicated on an ingrained notion of a right to expand that had become part of the national ethos since the early days of the Republic.23 To a large extent, the Louisiana Purchase had been a product of that ethos and had also served to strengthen it experientially as its success as a national strategy became more and more evident in the following years. The language of the Insular Cases and the rhetoric surrounding their adoption were part of the legacy of the early expansionist movement, although the new circumstances brought about by the acquisition of large groups of distant, different peoples gave a new twist to the governing policies of the new imperial power. The doctrine of legal precedent, which allows for the reiterated application of a principle adopted by the courts, in abstraction of its original ideological underpinnings, has made it feasible for the federal courts, Congress, and the executive to keep applying to the unincorporated territories this decidedly imperial principle of constitutional and political subordination even to this day. In the process, the ideological foundations of the doctrine continue to be invisibly reproduced. The political consequences of the policy adopted by Congress and the executive and of the constitutional doctrine sanctioned by the U.S. Supreme Court regarding the unincorporated territories flew in the face of commonplace understandings in American political discourse. The rebel cry of “no taxation without representation” was good for the American Revolutionaries, but not for the people of the territories acquired from Spain. (The analogous claim of “no conscription without representation,” raised by the Alaskan pro-statehood movement in the mid 1950s,24 is also belied by the status of the nonincorporated territories.) The very basic notion of government by consent of the governed is contradicted by the theory of plenary powers, the disenfranchisement of the residents of the territories, and the state of political subordination to which they are subjected. The motto of “one nation, indivisible” is decried by the constitutional creation of communities that supposedly belong to, but are not a part of, the United States, and by the reality of a fractured political community in which large

masses of U.S. citizens are excluded from basic participatory rights. The constitution of separate, subordinate communities within the American body politic justified governing them without the restraints imposed by membership in the larger political community of the imperial power. At the same time, constructing those communities as somehow inferior in political capacity—as the rhetoric of the times propounded—justified not treating them as equals in the community of sovereign nations. Thus, even the liberal principle of formal equality was flouted in its two basic senses: equality of status within the domestic political community; and equality of respect within the international community.25 These contradictions may partially explain why the question of the remaining U.S. territories has been kept so muted in recent U.S. political history and current debates. The dissenters in the Insular Cases repeatedly pointed out that the constitutional doctrine fashioned by the Court was contrary to the founding myths and the self-image of the Republic. Maybe the only way to deal with this flagrant contradiction was to make it invisible: to make the territories and their peoples disappear from the public conscience, from public and constitutional debate. Perhaps this is one of the reasons why, as it has been pointed out, the Insular Cases vanished for so long from the canon of U.S. constitutional jurisprudence.26

PERSISTENT ISSUES As we enter the twenty-first century, there remain unsolved several issues flowing from the decision to acquire Puerto Rico in the final years of the nineteenth century and to govern it according to the principles established in the Insular Cases. On the part of the United States, three questions stand out: (1) Will the United States continue to hold entire populations in a condition of political subordination without granting them full access to participatory rights within the American body politic or, in the alternative, recognizing their full rights of selfdetermination as separate, sovereign entities? (2) Will the United States continue to embrace a fragmented notion of citizenship that distinguishes between different classes of citizens, based mainly on territorial considerations? (3) Will the United States continue operating on the basis of a theory and practice of rights that differentiate between the sources and extent of rights of those subjected to its authority, also on the basis of territorial status? On the other hand, as a political community, Puerto Rico must address its own questions. Some of them will be formulated below.

The Question of Power and Subordination U.S. policies toward so-called unincorporated territories, such as Puerto Rico, are based on a particular perspective of power. The United States proceeds under the premise that Congress enjoys full power to make determinations regarding the condition and future of the territory. This perspective not only legitimates the condition of political and legal subordination that characterizes the relationship of the territory with the metropolitan power. It also places severe constraints on the process by which that relationship can be transformed. For the federal government understands that its prerogatives include the definition of the political alternatives available to the territories and the very determination of the process by which their peoples are to exercise their “right to self-determination.” As a consequence, the territories may choose

among several options but, barring a unilateral declaration of independence that would imply a total rupture with the United States, the election is to be made under conditions specified by the U.S. government. Failed congressional attempts made during the last fifteen years aimed at providing mechanisms through which Puerto Rico could decide its political future clearly revealed that Congress always sought to retain the upper hand in all stages of the game. This was accomplished by making sure that Congress could resort to the trump card of the Territories Clause of the Constitution, as interpreted by the Insular Cases, to condition, derail, or stop the decisional process at any moment. In other words, the process has not been viewed as a negotiation among political equals, but as the exercise of power, however well intentioned, by a metropolitan state wielding supreme authority over a subordinate political community. In fact, the conceptual framework developed by the Insular Cases, upon which congressional policies rely, is incompatible with any notion of self-determination. At a minimum, the contemporary understanding of the right to collective self-determination implies the legal or moral right of a people or group (however it is defined) to determine its status and associations with other peoples or groups and to fashion the organizing principles of its social existence. Yet, the logic of the Insular Cases presupposes the plenary power of the United States to determine the political condition and the civil and political rights of the people of the territories. The crucial question, as we enter the twenty-first century, is whether the United States will continue to guide its policies by an imperialistic principle of governance fashioned and developed for another era, or whether it will adopt a different power perspective in its dealings with the peoples of the territories. In other words, whether it will continue to act as an imperial power or whether it will transform itself into a fully democratic political community.

The Question of Citizenship By virtue of the Jones Act of 1917 and several subsequent statutes, persons born in Puerto Rico are considered U.S. citizens by birth. According to the prevalent interpretation, however, they are to be considered statutory rather than Fourteenth Amendment citizens. This extension of U.S. citizenship to people born in Puerto Rico has created a legal status, with important political, social, and cultural consequences, that raises complex issues both for the United States and for Puerto Rico. In effect, the interplay between the constitutional status of Puerto Rico as an unincorporated territory and the legal condition of Puerto Ricans as statutory U.S. citizens has produced a regime of fragmented citizenship, in terms of the rights and limitations attached to it, based principally on territoriality. The following examples will illustrate several layers of this complexity. A Puerto Rican born in Puerto Rico and living in Puerto Rico is considered a statutory U.S. citizen who cannot vote for president of the United States or elect voting representatives to Congress. A Puerto Rican born in the United States and living in the United States is considered a Fourteenth Amendment citizen of the United States and will be able to vote for president and for U.S. senators and representatives, enjoying the full rights of citizens of the state in which

she resides. A Puerto Rican born in Puerto Rico and living in the United States will be considered a statutory U.S. citizen but will have full voting rights for president and members of Congress. A Puerto Rican born in the United States and living in Puerto Rico is considered a Fourteenth Amendment U.S. citizen, but will not be able to vote for president or voting members of Congress. A Puerto Rican born in Puerto Rico, with residence in the United States, but living temporarily abroad, is considered a statutory citizen of the United States, but will have full voting rights as an absentee voter in the state of her residence. A Puerto Rican born in the United States, with residence in the United States, but living temporarily abroad, is considered a Fourteenth Amendment citizen, with full voting rights as an absentee voter in the state of his residence. A Puerto Rican born in the United States, with residence in Puerto Rico, and living temporarily abroad, is considered a Fourteenth Amendment citizen, but will not be able to vote for president or elect voting members of Congress. A Puerto Rican born in Puerto Rico, who has Puerto Rico as her residence, but lives temporarily abroad, is a statutory citizen who cannot vote for president or voting members of Congress. A non-Puerto Rican U.S. citizen, whether born or naturalized in the United States, who is living in Puerto Rico, will not be able to vote for president, senators, or representatives. In other words, the moment she moves from Alaska, New York, or Texas to Puerto Rico, she loses her voting rights. A non-Puerto Rican U.S. citizen, who resides in any state, and is temporarily abroad, will be able to cast her absentee ballot for president and members of Congress. But if she changes her residence to Puerto Rico, and is temporarily abroad, she will lose her right to cast an absentee ballot. It is in the sense illustrated by the above examples that people speak of the citizenship held by Puerto Ricans in Puerto Rico as a second-class citizenship. It is a second-class citizenship on account of territoriality, not ethnicity, although there is no doubt that, in its origins, the classification of Puerto Rico as an unincorporated territory owed much to racial and ethnic factors.27 This version of “second-class citizenship” must be distinguished from the sense in which African Americans, Puerto Ricans living in the United States, and other minorities have been considered second-class citizens, based on purely racial or ethnic considerations. This disenfranchisement of an entire population of U.S. citizens subject to the full authority of the federal government raises serious questions regarding democracy, self-government, and self-determination. The pressing question, therefore, is whether the United States, as a political community, will continue to maintain this system of fragmented citizenship or is willing to move to a more egalitarian arrangement. From the point of view of Puerto Rico and Puerto Ricans living in the islands, there are also questions to be addressed.

The extension of U.S. citizenship has had many side effects in Puerto Rican society. I have examined them extensively elsewhere.28 U.S. citizenship has also had multiple meanings for Puerto Ricans. For some it is a welcome link to the United States, regardless of the political status of the territory. For others, it has been nothing more than an imposed identity by an imperial power. Still others regard it as a useful asset that provides access to certain rights and tangible benefits and opportunities. And there are those that cherish it as a constituent element of their self-image and identity.29 The open questions for Puerto Rico as a community are what meaning or meanings will prevail and what value will ultimately be placed on U.S. citizenship when deciding Puerto Rico’s political future.

The Question of Rights The territorial status of Puerto Rico raises basic theoretical questions about the nature and source of rights. What is the nature of the rights enjoyed by Puerto Ricans living in Puerto Rico? What is their source? American political theory has long subscribed to the thesis of inalienable rights. It is those inalienable rights that, ultimately, the Framers of the Constitution sought to protect. In the Insular Cases the Supreme Court decreed that there are certain fundamental rights enjoyed by the peoples of the territories that are beyond the reach of Congress. However, according to the Court, not all rights contained in the Constitution are fundamental in this regard. The several majority opinions elaborated a discourse based on the differences between “fundamental” and “non-fundamental” rights; or between “natural” and “artificial” rights; or between “fundamental rights” and “questions of procedure”; or between “personal” and “political” rights; or even between “natural rights” and those “peculiar to Anglo-Saxon jurisprudence,” under which one of the justices placed the “rights of citizenship, to suffrage, and to the particular methods of procedure pointed out in the Constitution.”30 These “methods of procedure” included the constitutional right to be tried by jury, which was held not to apply to the territories.31 The deepest question pertains to the source of rights and the source of the authority to govern. In traditional American political discourse, rights, as well as the authority to govern, have their foundation in the people themselves. Yet, in the case of the territories, the rights deemed to apply to their people, as well as those denied them, have their source in a constitution they have not approved nor have the power to amend. The power to govern the peoples of the territories is thought to emanate, not from their will, but from the authority granted Congress in the Constitution by the people of the United States. The inhabitants of the territories are not considered to be, constitutionally, a part of that people. The inhabitants of the territories do not enjoy any constituent powers to affect the nature, extent, or limitations of the right to govern them or of the rights to be enjoyed by them. These determinations are deemed a prerogative of the imperial power. As long as the doctrine of unincorporation remains unaltered, this is the constitutional, theoretical, and ideological basis under which the peoples of the territories will be governed.

THE ALTERNATIVES Since very early in the twentieth century, three alternative solutions have been proposed to deal with the status of Puerto Rico: statehood; independence; or some form of enhanced autonomous condition growing out of the current status. Recently, a fourth solution has been proposed: the status of a sovereign Puerto Rico closely linked to the United States by a treaty of association. Popular support for each of these formulas has varied throughout the century. All of them offer advantages and pose difficulties. The degree of support garnered by each of them at various moments has depended on many factors. They include the evaluation made by the different sectors of Puerto Rican society of the extent to which each proposed solution is able to harmonize three basic concerns: economic survival; cultural identity; and political empowerment. The successful articulation of these aspirations will determine the direction which popular support will take in the years to come. That articulation could be expressed in arrangements unexplored until now. It would be naïve to suppose, however, that any given formula will immediately wash away all the problems, tensions, and contradictions that have been hatched during the American colonial regime. As I argued in my book, The Legal Construction of Identity,32 statehood will not exhaust self-determination claims, especially regarding cultural matters. It will not dissolve strains over national and cultural identity, particularly relating to the question of language. 33 In fact, those tensions may intensify. Some have raised the specter of a movement for secession. The formal equality that the statehood solution offers would not erase the problems posed by cultural differences. And it is not clear what the economic consequences of statehood would be. The status of associated republic, on its part, would enhance collective autonomy, but would still harbor the difficulties of curtailed sovereignty, struggles over American citizenship, and its own variants of the problems of personal and collective identity.34 As I argued in the cited work, after more than a century of American presence, even national independence raises complex issues.35 They include, of course, the question of economic viability, but extend beyond that. For example, what will happen if large numbers of Puerto Ricans are not willing to relinquish their U.S. citizenship? How to keep close ties with the United States without becoming a dependent, neocolonial state? How to deal with the intense demographic links that have developed with the United States through the millions of Puerto Ricans who either live or have relatives there? I have not argued in this chapter for any particular solution, although, as a Puerto Rican, I entertain my own preferences. When all is said and done, they are ultimately preferences, based not only on my notions of what is viable, but also on deeply held values that tinge my beliefs about what is desirable. As a scholar I must admit that there may be several alternatives that satisfactorily address the chronic issues discussed in this chapter. From a normative point of view, however, those alternatives must lead to a resolution of the problem that dismantles colonialism and treats Puerto Ricans with dignity and equality (in whatever sense the term is used).

The opportunities for success under any formula will depend on decisions made by the people of Puerto Rico as well as on the willingness of the United States to support an effective transition to a noncolonial, nonsubordinate status. Both Puerto Rico and the United States will be forced to explore new, imaginative approaches to many of these questions.

THE LARGER PICTURE The questions raised by the current situation of Puerto Rico and the other territories are relevant to other domestic and international political issues faced by the United States. To a great extent, the approach taken by the United States ruling elites to deal with the territories after 1898 reflected some of the attitudes deployed domestically when dealing with other groups, such as Native Americans, African-Americans, Mexicans, Chinese and Japanese immigrants, and, in varying degrees, non-Anglo-Saxon European immigrants of working-class and peasant origin.36 At the same time, the ideological underpinnings of territorial policy reinforced the continued subjugation of those domestic groups for many years to come. The treatment historically accorded the latter have also had long-lasting effects. The transformation of the United States into a more egalitarian society necessarily entails superseding the ideological undercurrents and the practices that keep those groups and the peoples of the territories in conditions of subordination. Progress in one area should hopefully stimulate changes in the other. Territorial citizenship undermines the integrity of the very notion of U.S. citizenship. It puts into question the democratic character of the Republic. It is a sign of imperial power, much in the same way in which Roman citizenship became a distinctive mark of the policies of the Roman Empire or the multilayered system of British citizenship constituted an integral part of British imperialism. If the United States is to leave behind any accusation of imperialism and colonialism, it must address the inequitable consequences of territorial citizenship. Finally, the power perspective from which the U.S. government manages its relationship with Puerto Rico and the other territories shares many of the features of the approach it has frequently taken when facing international problems. The specific policies and justifications for the exercise of power which that perspective has produced have spilled over into other contexts. For example, the extraterritorial powers claimed by the United States to capture, prosecute, and punish people outside its borders without the full protection of constitutional guarantees have been justified with reference to the notions first articulated and expressed in the rationale of the Insular Cases. Witness the current situation in Iraq and in Guantánamo Bay, where the United States holds under detention hundreds of persons while withholding from them rights deemed fundamental in the American civil rights tradition. This has everything to do with the American Republic’s self-image as well as the perception others may have of the United States as a world actor. Ending colonialism at home may contribute to healthier relations abroad.

NOTES 1 De Lima v. Bidwell, 182 U.S. 1 (1901); Goetze v. United States, 182 U.S. 221 (1901); Crossman v. United States, 182 U.S. 221 (1901); Dooley v. United States, 182 U.S. 222

(1901); Armstrong v. United States, 182 U.S. 243 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Huus v. New York and Porto Rico Steamship Company, 182 U.S. 392 (1901); Dooley v. United States, 183 U.S. 151 (1901); Fourteen Diamond Rings v. United States, 183 U.S. 176 (1901); Hawaii v. Mankichi, 190 U.S. 197 (1903); González v. Williams, 192 U.S. 1 (1904); Kepner v. United States, 195 U.S. 100 (1904); Dorr v. United States, 195 U.S. 138 (1904); Mendozana v. United States, 195 U.S. 158 (1904); Rassmussen v. United States, 197 U.S. 516 (1905); Trono v. United States, 199 U.S. 521 (1905); Grafton v. United States, 206 U.S. 333 (1907); Kent v. Porto Rico, 207 U.S. 113 (1907); Kopel v. Bingham, 211 U.S. 468 (1909); Dowdell v. United States, 221 U.S. 325 (1911); Ochoa v. Hernández, 230 U.S. 139 (1913); Ocampo v. United States, 234 U.S. 91 (1914); Balzac v. Porto Rico, 258 U.S. 298 (1922). 2 For information on the census see: Census.gov/main/www/cen2000.html. 3 Ibid. 4 For a succinct history of Puerto Rico during the Spanish colonial regime, see Efrén Rivera Ramos, The Legal Construction of Identity: The Judicial and Social Legacy of American Colonialism in Puerto Rico (Washington, D.C.: American Psychological Association, 2001), 45-54. 5 Foraker Act, chap. 190, 31 Stat. 77 (1900); Jones Act, chap. 190, 39 Stat. 951 (1917) (codified at 48 U.S.C. § 731 (1987)). 6 U.S. citizenship was extended to residents of Puerto Rico by virtue of the Jones Act, chap. 190, 39 Stat. 951 (1917) (codified at 48 U.S.C. § 731 (1987)). 7 Public Law 600, 64 Stat. 319, 48 U.S.C.A. 731b (1950). 8 Downes v. Bidwell, 182 U.S. 244 (1901); Kopel v. Bingham, 211 U.S. 468 (1909). 9 Internal Revenue Code, Pub. L. No. 99-514 § 1272 (d) (3), 100 Stat. 2594, 26 U.S.C. § 933 (1986). 10 For a comprehensive, although now dated, analysis of federal programs made extensive to Puerto Rico, see Richard Cappalli, Federal Aid to Puerto Rico (1970). 11 See, for example, Bianchi v. Morales, 262 U.S. 170 (1923); Secretary of Agriculture v. Central Roig, 338 U.S. 604 (1950); Calero Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974); Examining Board v. Flores de Otero, 426 U.S. 572 (1976); Califano v. Torres, 435 U.S. 1 (1978); Harris v. Rosario, 446 U.S. 651 (1980); Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 1046 (1986). 12 Pub. L. No. 100-352, 100 Stat. 662, 28 U.S.C. § 1258 (1988).

13 For a more detailed description of the situation of Puerto Rico under U.S. rule, see Rivera Ramos, The Legal Construction of Identity, 55-70. 14 See Nancy Morris, Puerto Rico: Culture, Politics, and Identity (Westport, Conn.: Praeger, 1995); Rivera Ramos, The Legal Construction of Identity, 11-13. 15 Downes v. Bidwell, 182 U.S. 244, 287 (1901), especially Justice White’s concurring opinion, at 311-12. 16 206 U.S. 333 (1907). 17 See, for example, Califano v. Torres, 435 U.S. 1 (1978) and Harris v. Rosario, 446 U.S. 651 (1980) (deciding that under the Territories Clause, as interpreted by the Insular Cases, Congress can discriminate against the residents of the territories in the extension of social welfare programs). 18 See, for example, United States v. Álvarez Machaín, 504 U.S. 655 (1992) (relying on the rationale of the Insular Cases to sustain actions of American law enforcement agents in Mexican territory). 19 “Alaska,” Microsoft® Encarta® Online Encyclopedia 2003, at encarta.msn.com; Eric Gislason and Senator Ernest Gruening, “Let Us Now End American Colonialism,” at xroads.virginia.edu/CAP/BARTLETT/colonial.html. 20 Treaty of Paris, December 10, 1898, U.S.-Spain, art. IX, 30 Stat. 1754, 1759-1760. 21 See Rivera Ramos, The Legal Construction of Identity, 35-39, 111-13. 22 Ibid., 113-15. 23 Ibid., 36. 24 Eric Gislason and Senator Ernest Gruening, “Let Us Now End American Colonialism.” 25 Rivera Ramos, The Legal Construction of Identity, 113. 26 See generally J. M. Balkin and Sanford Levinson, “The Canons of Constitutional Law,” 111 Harvard Law Review 963 (1998). 27 For a fuller account, see Rivera Ramos, The Legal Construction of Identity, 111-13. 28 See Rivera Ramos, The Legal Construction of Identity, especially chap. 7. 29 Ibid.

30 For a fuller discussion, see Rivera Ramos, The Legal Construction of Identity, 110-11. 31 Hawaii v. Mankichi, 190 U.S. 197 (1903); Dorr v. United States, 195 U.S. 138 (1904); Dowdell v. United States, 221 U.S. 325 (1911); Balzac v. Porto Rico, 258 U.S. 298 (1922). 32 Rivera Ramos, The Legal Construction of Identity, 247. 33 In a survey conducted by Ateneo Puertorriqueño, a leading cultural institution in Puerto Rico, 93.3 percent of respondents answered that they would not relinquish Spanish as their language if Puerto Rico ever became a state of the Union and the United States required English as the “official language.” Hispania Research Corporation, Memorando analítico sobre el estudio del idioma en Puerto Rico-Sometido a: Ateneo Puertorriqueño 60 (1993). 34 Rivera Ramos, The Legal Construction of Identity 247. 35 Ibid. 36 For comprehensive accounts of the legal doctrines developed by the U.S. Supreme Court to deal with Native Americans and immigrants during the nineteenth century—doctrines that, in many ways, prefigured and served as foundations for those developed in the Insular Cases— see T. Alexander Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Cambridge, Mass.: Harvard University Press, 2002) and Sarah H. Cleveland, “Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the NineteenthCentury Origins of Plenary Power over Foreign Affairs,” 81 Texas Law Review 1 (2002).

9 The Constitution and Deconstitution of the United States Christina Duffy Burnett* In the preface to his classic study Abraham Lincoln and the Second American Revolution, Civil War historian James M. McPherson observes that “[t]he United States went to war in 1861 to preserve a Union; it emerged from war in 1865 having created a nation. Before 1861 the two words ‘United States’ were generally used as plural nouns. After 1865 the United States became a singular noun. The loose union of states became a nation.” McPherson is not trying to make a controversial point here; he is simply noting the grammatical symptom of a familiar and significant transformation. Whatever questions the Civil War left unsettled, the indivisibility of the American nation is not supposed to be one of them, and the transformation of the United States from a plural to a singular entity reflects this reality. Between 1861 and 1865, as we all know, these united States became this United States. Yet a review of the debate over American imperialism several decades later tells a different story. In those fretful years, the prospect of a global American empire prompted many Americans to reconsider what sort of polity their nation could and should be. In the wake of the United States’ defeat of Spain in the Spanish-American War and its annexation of the Philippines, Guam, and Puerto Rico, Americans found themselves wondering whether these new island possessions, like their continental predecessors, had now become part of the “United States”—and what that might imply. Must these new territories be admitted into statehood someday? Or could they be kept as territories indefinitely? Must they be kept at all? Or could they be ceded to another power, or even granted their independence? If the “United States” was truly a single and indivisible nation, and territories subject to its sovereignty were part of the United States, how could such territory be relinquished? Thus the question of whether the Civil War had forged one nation out of the United States, single and indivisible, reemerged, unsettled, in the debate over American imperialism. Students of the period have not paid much attention to this aspect of the imperialism debates of the late nineteenth and early twentieth centuries: they have focused for the most part on territorial expansion and overextension, not territorial consolidation or contraction. They have, however, long taken for granted the United States’ power to relinquish sovereignty over the

territories beyond its continental borders. Disagreements over when and how to grant independence to the Philippines arose before the ink dried on the treaty of cession, while Puerto Rican independence has been considered a constitutionally unproblematic alternative for as long as anyone can remember (with only its popularity and practicality being seriously questioned). But contemporary contributions to the debate at the turn of the twentieth century reveal that some Americans at least had serious doubts about whether the United States, having annexed territories, could constitutionally deannex them. And the answer to that question turned on precisely how one defined that critical phrase, the “United States.” In this chapter, I trace the deannexationist thread in the debate over American imperialism through several contemporary sources: contributions to the nation’s leading law reviews between 1898 and 1901; the litigants’ arguments in the Supreme Court’s decisions in the Insular Cases of 1901; and Justice White’s concurring opinion in the most important of those decisions, Downes v. Bidwell, in which he set forth what came to be known as the “doctrine of territorial incorporation.”1 I show that the phrase “United States” lent itself to a surprisingly broad range of interpretations; that at stake in these various alternative definitions was the question of whether the United States could, constitutionally, deannex territories; and that Justice White’s concurrence in Downes answered this question in the affirmative, by reasoning that the United States’ new island possessions, though subject to U.S. sovereignty, remained outside a narrowly defined “United States.” White distinguished between territories “incorporated” into the United States and those not incorporated, which later came to be known as “unincorporated” territories. The distinction between incorporated and unincorporated territories has long been characterized as a distinction between territories where the Constitution applied in its entirety and territories where only its “fundamental” provisions applied. According to this traditional interpretation of White’s doctrine, the Insular Cases facilitated American empire by ensuring that Congress could govern its new territories unhindered by all but a few constitutional restraints. But I argue here that the crucial distinction between incorporated and unincorporated territories lay elsewhere: as White himself explained in Downes, in language that has been overlooked by scholars, the difference between them lay in that unincorporated territories could be separated from the United States, or deannexed, while incorporated territories could not. Justice White’s constitutional theory of deannexation allayed anxieties inspired as much by the United States’ recent past as by its imminent future. The debate over imperialism unfolded in the shadow of lingering constitutional crisis, in a nation still recovering from the trauma of secession, Civil War, and Reconstruction.2 The unconstitutionality of state secession had been settled by violence within recent memory. Sectional reconciliation now rested on the unsteady foundation of reinvented racial subjugation, redesigned to pass constitutional muster. Now, after just barely putting the pieces of their nation back together in a tense and fragile peace, Americans in search of adventure embraced the idea of conquering other nations. But the more cautious among them discerned in the prospect of global territorial expansion the specter of renewed territorial dissolution. The question was bound to arise: if the United States conquered territories worldwide, but

their prospective colonial subjects resisted, could Americans simply walk away? States could never leave the Union; that much was settled. But what about territories? Could they be separated from the United States? As long as territorial expansion had been confined to the continent (where the likelihood of white migration to what many Americans imagined were sparsely inhabited lands made new territories seem plausible candidates for statehood), the issue lay dormant. But when Americans imagined distant places densely populated by unfamiliar races, many of them no longer saw candidates for admission into an “indestructible union, composed of indestructible states.”3 By confirming that annexation did not preclude deannexation, Justice White furnished imperialists with a means of retreat, from what might become the unbearable burdens of empire. The Insular Cases thus refashioned the American nation as a divisible entity, capable of calving off future problem regions. The doctrine of territorial incorporation made the dissolution of domestic territory not only conceivable, but constitutional. It did so by crafting a constitutional theory of territorial deannexation, and subtly inserting it into the law of American territorial expansion.

DEFINING THE “UNITED STATES” The outward thrust of empire was accompanied by an inward turn: the question of whether the United States could acquire and govern colonies gave rise to the question of what, precisely, the “United States” was. Could the United States comprise states, the District of Columbia, territories—and colonial possessions? Could the people of the United States include American citizens—and colonial subjects? One forum in which Americans debated these questions were the major law reviews of the period.4 There, legal scholars gave sustained attention to the constitutional difficulties raised by the prospect of American imperialism. They asked, in short, whether the United States could stretch a republican constitution to embrace a colonial empire. The answer, evidently, depended on precisely how one defined the “United States.” Some legal commentators tried to ground the phrase, the “United States,” in something tangible. One, for instance, explained that although the new territories had ceased to be Spanish colonies, they had not become independent, either, “their very soil forming a constituent portion of the physical area of the United States.”5 Another offered that the United States “is something which can be pointed out upon a map; and I think that the map upon which it can be pointed out is what we hang upon our walls and call the map of the United States.”6 Yet another gave added historical specificity to this observation, pointing out that every map of the United States since 1865 had included both states and territories.7 These commentators defined the United States broadly, while others insisted that the “United States” could include only the states (and, in some cases, the District of Columbia), such as one who argued that the United States could include only “the constituent members of the Union,” by which it was clear from the context of the statement that he did not mean territories.8 Yet the territories of the United States were not exactly foreign, either. How to account for them, if the United States included only states? More than one commentator took up this challenge by proposing several definitions of the “United States,” and arguing that only one of these definitions included the territories—and that

this broader usage did not appear in the text of the Constitution. In their view, the territories were part of the United States in a colloquial sense, but not in a “constitutional” sense. In his contribution to this debate, Christopher Columbus Langdell, for example, put forward three definitions, of which only two, he argued, appeared in the Constitution. These included: (1) “the collective name of the States”; (2) “the name of a sovereign”; and (3) “all territory over which the sovereignty of the United States extended.”9 The first of these, Langdell explained, was “the original, natural, and literal meaning of the phrase,” and referred either to the first thirteen states—or, according to a letter he subsequently published, the first eleven (i.e., those that had adopted the Constitution by the time Congress first used the phrase “United States” in the Judiciary Act of 1789).10 The first and second meanings, he went on, referred exclusively to the states, while the third encompassed both states and territories. In contrast to the first two, “constitutional” meanings, the third was “purely conventional.”11 Similarly, James Bradley Thayer argued that the territories could only be a part of the United States in an “international sense.”12 Carman F. Randolph, in turn, proffered two, not three definitions of the “United States,” found both of them in the Constitution, and argued that one included the territories. Sometimes, wrote Randolph, the phrase referred only to the states, but more often “the ‘United States’ is, in the language of Chief Justice Marshall, ‘the name given to our great republic, which is composed of States and Territories.’” 13 Here Randolph was quoting a passage from Loughborough v. Blake (1820), a decision that figured prominently in this debate, and in the Court’s opinions in the Insular Cases, because it offered such strong support to those who argued that the “United States” included both states and territories.14 A majority of the Court would soon dismiss this passage from Loughborough as dicta, which, as far as the territories were concerned, it arguably was, as the holding in Loughborough dealt only with the District of Columbia.15 Both singular and plural versions of the “United States” made their way into the discussion. Langdell argued that his first two definitions, which encompassed only states, were plural, while the third was singular. Another contributor to the debate argued that the transition from plural to singular was still happening at the end of the nineteenth century—that the plural usage was, at that moment, gradually passing “under stress of the increasing sense of unity in national life.”16 This writer added that he thought the shift represented “a wholesome sign marking the progressive confirmation of our nationality, without indicating a tendency to political consolidation, which, undoubtedly, would be a symptom of national decay.”17 Other terms offered clues to the many meanings of the “United States.” Simeon Baldwin, for instance, focused his argument on the word “America.” 18 Whatever the United States of America included, Baldwin observed, it obviously could not include territory outside of America, and he therefore drew a line between those “islands off the coast of Asia,” which could not be part of the United States of America, and Puerto Rico, which could—and, in his view, would—once the treaty ceding it to the United States had been ratified. Edward B. Whitney agreed with Baldwin, and listed Hawaii among the islands that could never become part of the United States of America because they were not in “America.”19 An equally useful word, according to Langdell, would have been “empire,” if only Americans had not been so

reluctant to use it.20 When other nations confronted the need to designate all territory over which they exercised sovereignty, he pointed out, “the word ‘empire’ was adopted to satisfy it.”21 But for some reason, “‘United States’ is the only term we have had to designate collectively either the States alone, or the States and Territories.”22 Thus it would have to do —but one must not forget, Langdell insisted, that this third usage had “no legal or constitutional meaning.”23 The parties’ briefs in the Insular Cases produced their own heady variety of definitions of the phrase “United States,” though, again, they roughly divided between those that located every meaning of the “United States” somewhere in the Constitution, and those that identified at least one meaning that did not appear in the constitutional text. “What is the meaning of the three words, ‘the United States’?” asked the brief for the appellants in Goetze v. United States. “That, we take it, is the only question to be discussed.”24 Hoping to persuade the Court that Puerto Rico was now part of the United States, they, like Randolph, proffered two definitions: one comprising the states only, and one comprising the states plus the territories. Both, they argued, appeared in the Constitution, but the latter represented by far the more common usage: specifically, fifty-two out of fifty-three references to the United States in the Constitution echoed Loughborough’s definition (“our great Republic, composed of States and Territories”), with the only exception being the clause barring the president from receiving emoluments “from the United States, or any of them.”25 The government (the appellee in Goetze) offered in turn something resembling Langdell’s framework: the phrase had three meanings, went the argument, and the third or “international” sense was the only one that included the territories, and had no place in the Constitution.26 This breakdown, reminiscent of Langdell’s, included the corporate name of the nation or governmental entity, the states, and the international (and nonconstitutional) sense. However, the third meaning was then further subdivided into two categories: the properly international (“all territory under our dominion”) and the domestic (all territory made “part of the United States” by treaty or legislation).27 It is not clear why the government did not simply argue that the phrase had four meanings; in any event, the brief’s main concern was to establish that territories did not belong in any of the “constitutional” definitions. Oddly, in De Lima these arguments, but not their conclusions, were the reverse: in these briefs, the argument that the “United States” had three definitions led to the conclusion that all three of them appeared in the Constitution, and the argument that it had two definitions left one of them out of the Constitution. The De Lima appellants, who (like the appellants in Goetze) sought to convince the justices that Puerto Rico was part of the United States, argued that the phrase had three meanings.28 Although these three definitions also sounded somewhat Langdellian (the “corporate name of the nation”; the states; and the “ordinary meaning in the language of the day—that whole portion of the earth’s surface over which the flag of the United States flies in sovereign dominion”), the De Lima appellants parted ways with Langdell when they insisted that the expansive third meaning, or what they called the “international sense,” was also a constitutional sense.29 Meanwhile, the government argued that the phrase had only two meanings, and that only one of these was found in the Constitution:30 “The term ‘United

States’ may mean the territory which governs or the territory over which the government extends.”31 The former was the “constitutional,” the latter the “international, or it may be the legislative, sense.” Only the latter, the brief went on, included the territories.32 The singular/plural distinction showed up in these briefs as well. Here, the arguments of the appellants in De Lima and Goetze converged. The appellants in De Lima argued that the “United States” could not mean the same thing in the Constitution as it had in the Articles, for the Constitution was a “pouring of old wine into new bottles. Some of the form remained, but the spirit was gone.”33 The appellants in Goetze insisted that, in order to understand the meaning of the United States, “we must discard the interpretation which would make them synonymous with the States United”—a suggestion that would have been more persuasive if the appellants had remembered to replace “them” with “it.”34 No one, evidently, could predict which way the various alternatives cut: whether the United States had one, two, or three meanings did not dictate what those meanings were, whether some or all of them appeared in the Constitution, or, if they did, where. Among them, the contributors to this debate came up with the following variations (among others): that the phrase “United States” had one meaning which referred only to states; that it had one meaning which included states and territories; that it had two meanings, but only the more restrictive appeared in the text of the Constitution; that it had two meanings, but the more expansive one appeared more often in the Constitution; that it had two meanings, and both showed up in the text; that it had three, and only two were constitutional; and that it had three, and all three were constitutional; that it had three meanings, but when you counted them, they somehow turned to four. One striking illustration of the procrustean qualities of the phrase “United States” came during an oral argument in the Insular Cases, in which Solicitor General John K. Richards changed his position on the meanings of “the United States” mid-course, revising the proposed number of definitions from two to four. Richards did so in response to a suggestive question from Justice White, and the exchange between them foreshadowed the emergence of a definition of the United States that would exclude only some territories—a distinction between categories of territories that would soon be the key ingredient in the doctrine of territorial incorporation. According to the transcript of the argument, White asked the Solicitor General: Do you make a distinction in your mind or is there any distinction ... between the States and the Territories of the United States, and the States and the territory of the United States? Does not “the territories” in these cases which you have quoted from refer to territories in which Congress has organized a government, thus making them impliedly a part of the United States? Does not the article of the Constitution giving power to dispose of the “territory” suggest a distinction between the Territories which have been organized, and “territory” belonging to the United States as such?35

At first, Richards seems to have thought that White was asking whether a distinction could be drawn between the original territories of the United States (those subject to the Northwest Ordinance), and those acquired afterwards (beginning with the Louisiana Purchase in 1803). Richards asked: “Does your honor mean to ask me whether the territories subsequently acquired came within the power thus granted to Congress to make all needful rules and regulations for the government of the territory of the United States, or is it confined simply to the territory which existed at the time of the adoption of the Constitution, outside the thirteen States?”36 White then rephrased his question, asking instead whether Richards intended to challenge Marshall’s famous passage in Loughborough on the meaning of the “United States.” Richards responded that Marshall had been correct insofar as the United States “in a geographical sense” included the territories, but that in a “constitutional sense,” the United States encompassed only the states.37 But when arguments continued the following day, Richards revised his answer, noting that he “did not hear the question distinctly nor comprehend the full purport of it.”38 Having thought it over more clearly, he now suggested that the relevant distinction was neither one between original and later territories, nor one between geographical and constitutional senses of the phrase “United States.” Rather, one was obliged to distinguish between organized territories (that is, those for which Congress had passed an organic act establishing a civil government) and unorganized territories. This distinction, he proposed, pointed toward a revised understanding of the oft-quoted passage in Loughborough. That language, Richards now argued, referred to states, the District, and organized territories only. In other words, the famous Loughborough passage did include territories, as Chief Justice Marshall had made clear—just not all of them. It used the United States in its “legislative” sense, Richards explained, not in its “international” sense. Only the latter sense included all of the territories. Thus, according to the Solicitor General’s revised argument, organized territories were part of the United States in the legislative sense; unorganized territories were part of the United States only in the international sense. “So really,” Richards concluded, “there are four meanings which may be conveyed by the phrase United States,” and he listed them: (1) the “sovereignty itself,” or “that grand corporation”; (2) the constitutional sense, comprising “the American confederacy”; (3) the “legislative” sense, including states, the District, and those territories to which Congress had extended the Constitution and laws of the United States; and (4) the “international” sense, encompassing all territory under the dominion of the United States, whether organized or not.39 This precise set of distinctions, among others floated in the legal debate, would not ultimately make it into Justice White’s concurrence in Downes, perhaps because Congress had already passed an organic act establishing a civil government in Puerto Rico without extending the Constitution of the United States to the island, which undermined Richards’s attempt to equate Congress’s “organization” of territory with Congress’s “extension” of the Constitution.40 To rest the distinction between territories within and outside the “United States” upon whether or not they had been organized would in any event have unduly curtailed Congress’s flexibility in governing territories, as it would have prevented Congress from establishing civil governments in those territories that it otherwise wanted to exclude from a

narrowly defined United States. Nevertheless, this remarkable exchange at oral argument offers nothing less than a glimpse of White’s distinction between incorporated and unincorporated territories in tentative formation.

DISTINGUISHING BETWEEN ACQUISITION AND INCORPORATION In pressing this line of questioning, White was pursuing an analysis already mooted in the legal literature on the subject: similar distinctions between categories of territories had emerged in the legal debate before the Insular Cases reached the Court. Some commentators had argued that the United States included only the states and others that it included both states and territories, but a few had proposed that the United States included only certain territories. Abbott Lawrence Lowell’s piece in the Harvard Law Review set forth the best known of these proposals, and has been credited with inspiring Justice White’s doctrine of territorial incorporation.41 Lowell described his own position as a compromise or “third” view between the two extremes (on the one hand that the United States included only the states, and on the other that it included not only the states but also all of the territories). Instead, Lowell argued, the United States included the states and some of the territories. The reason for this, he argued, was that it was one thing to “acquire” territory, and another thing entirely to “incorporate” it into the United States. Obviously, only territory incorporated into the United States could be a part of the United States.42 Although Lowell’s piece has been remembered best as the one that staked out the middle ground, other contributors to the debate offered variations on this theme. They argued that territorial acquisition could happen in stages, and that not all of these stages involved a territory’s becoming part of the United States.43 Some commentators carved out a stage of “protection” during which a territory was subject to U.S. sovereignty but not yet part of the United States. One writer distinguished between territories “protected” by the United States, and territories “governed” by Congress specifically.44 Another explained that “[t]he conquest of the island under the authority of the Executive made it ours by military title, but the conquest did not incorporate the island within the United States.”45 Thayer, for instance, distinguished among stages of annexation, arguing that the mere acquisition of territory could not make it a part of the United States. Like Lowell, Thayer argued that annexation brought a territory under U.S. sovereignty, but that only a treaty or legislation could make it part of the United States. Conceding that “it is the prevailing legal opinion, supported by some judicial decisions, that the territories are a part of the United States, not merely in the eye of international law, as all agree, but in the sense of our municipal law,” Thayer insisted that “little in the text of the Constitution itself” supported that conclusion.46 He also distinguished between territory in a general sense and “territory” as a term of art (thus anticipating—or perhaps inspiring—Justice White’s question to Richards at oral argument): “[W]hen a new region is acquired,” he explained, “it does not at once and necessarily become a part of what we call the ‘territory’ of the United States,” and he illustrated his point by analogy to the anomalous status of Native Americans. 47 Meanwhile, Randolph argued that the Philippines would become a part of the United States “internationally” if the treaty of peace were ratified, but that something more

would be necessary in order to “domesticate” them, thereby bringing them under “normal sovereignty.”48 These proposals contemplated a separation between the exercise of sovereignty and the scope of the Constitution, according to which the boundaries of the Constitution coincided with those of the national territory, even as sovereignty reached beyond national boundaries.49 “Since its inception and up to the present time,” went one account, “the government, in numerous cases, has exercised sovereignty independently of the Federal Constitution.”50 Langdell’s explanation of the third meaning of “the United States,” described above, relied on a similar distinction: as he put it, the phrase did not appear in the Constitution, but designated all of the territory subject to the sovereignty of the United States. Charles A. Gardiner asserted that the power to acquire, govern, and dispose of territory existed independent of the Constitution, and that the Territories Clause simply designated Congress the agent of this sovereignty, empowering it to exercise extraconstitutional powers of governance and disposition. 51 In a response to Lowell’s “third view,” one commentator wrote that Lowell had convincingly demonstrated that the United States could, in theory, acquire full sovereignty over a territory while stipulating at the same time that such territory had not become a part of the United States—though he disagreed with Lowell’s conclusion that the treaty with Spain had accomplished this exclusion, as that treaty contained no such stipulation.52 This gap between the reach of sovereignty and the scope of the Constitution bolstered the conclusion that only fundamental constitutional provisions applied to the unincorporated territories. In addition, the separation between a virtually unbounded sovereignty and its constitutionally bounded counterpart mirrored another distinction: namely, that between temporary entanglements and permanent commitments. Sovereignty, that is, could be extended temporarily, but to exercise sovereignty by embracing a territory fully within constitutional boundaries was to take an irreversible step—or this seemed to be the view of a number of those who addressed the issue of deannexation directly. No one in the turn-of-the-century legal debate disputed that the United States might temporarily govern occupied foreign territory in time of war, or during a transitional period at the end of war, and subsequently withdraw from it; no one disagreed that such temporary government might even combine some elements of civil governance with military authority. But the contributors to the debate disagreed about the implications of a territory’s transition from “foreign country” (where U.S. sovereignty could be exercised temporarily under certain circumstances) to “part of the United States” (where the assertion of sovereignty had—until then—marked the first stage in a process leading ultimately to the admission of a state into the Union). Somewhere in this transition lay the point of no return; at some point, a temporary entanglement turned into a permanent commitment. But when? Upon the admission of a territory into the Union as a state? Or at some point before then? To answer this question by drawing a line between two classes of domestic territory meant rejecting the longstanding assumption that all territories were on their way to becoming states. Throughout the nineteenth century, American expansion had served the purposes of a constitutional republic: all annexed territories eventually entered the Union as states on an

equal footing with other states, and their inhabitants attained full equality as citizens—al— though, like other exceptionalist narratives, this one required a blind spot for the very different perspectives that Native Americans, among others, would have brought to the story. On a number of occasions, the Court had relied on the familiar premise that the United States took territory only for the purpose of making equal states, upholding Congress’s so-called plenary power to govern territories denied federal representation—a very un-republican kind of power —precisely on the ground that territorial status was merely a way station on the road to statehood.53 But if eventual statehood justified this (temporary, transitional) exercise of plenary power, then perhaps Congress only had the power to govern territories intended for statehood. If so, then Congress’s establishment of civil government in a domestic territory might in turn imply that the United States had entered into a permanent union with such territory, even prior to statehood. Some contributors to the debate simply adhered to the familiar assumption that the territorial phase ended in statehood, apparently without contemplating the possibility of separation following annexation. One, for example, insisted that the Territories Clause and the Admission Clause must be read together and that, as a result, every territory acquired by the United States, without exception, must become a state.54 This writer even included Cuba in this category, dismissing the McKinley administration’s disclaimers of any intent to keep sovereignty over that island. Cuba and Puerto Rico are “already practically ours,” he wrote, and “must inevitably, sooner or later, be merged into our national life as a component part of our Federal Union.”55 Another broke down the stages following the annexation of territory into three phases: from “district,” to “territory,” to state; he too did not address whether separation could follow acquisition.56 This author also noted (perhaps with Texas in mind) that territory could be admitted into statehood “without passing through the political status of an inferior form of government,” but he did not say whether territory that did pass through that inferior stage could later be deannexed. Still another denied that Congress’s broad powers to govern territories included the discretion to alter their “constitutional” relationship to the United States: Congress in its discretion may make political subdivisions of this outlying dominion or parts of it; ... may set up or tear down these political subdivisions at will; ... their relation to the general government is practically that of counties to states; ... they are in substance municipal corporations; but ... neither setting up nor tearing down these political subdivisions has any effect on the constitutional relations of such territory to the Republic.57 This argument proved too much, for Congress obviously had the power to make states, which was one way to have an “effect on the constitutional relations of such territory to the Republic.” But the point was that once territory came under the exclusive sovereignty of the United States, Congress could do nothing to change this—meaning, presumably, that it could

never deannex it. This author did not discuss whether any other branch of the federal government had the power to change the constitutional relations of a territory to the United States, nor whether such a change could encompass deannexation. Other commentators, however, parsed the stages of territorial annexation in such a way as to accommodate deannexation. Their contributions to the debate reveal both considerable uncertainty about the constitutionality of deannexation, and serious concerns about the consequences of ruling it out. One anti-imperialist writing in 1899 articulated these concerns in especially stark terms, darkly expressing his fears that the acquisition of territory might be taken to imply some sort of permanent commitment. “If the people [of the United States] should hereafter realize that this so-called [imperialist] policy imperils and may wreck our institutions,” he wrote, “can they not, and should they not, by their future representative government, repeal unconstitutional laws, release subjugated people from our dominion, and restore the supremacy of the constitution?” He went on: Their abstract right to do so is indisputable, but their power to exercise it may be challenged. However anxiously the natives of those islands may plead their claim to independence, small but influential classes will have acquired valuable industrial and commercial interests there, which they may decline to surrender voluntarily. The government, backed by large military power, may then be controlled by organized capital, and future “irrepressible conflicts” may be in store for us before the people regain supremacy.58 Others favored deannexation with somewhat less urgency, but still insisted on the importance of preserving it as an option. Some were more confident of its constitutionality than others; to the former, the obstacles to deannexation involved practical rather than strictly legal considerations. One commentator declared that the United States could simply “retire” from the Philippines if this strategy were to prove “expedient.”59 Thayer, who distinguished between the acquisition of territory and its incorporation into the United States, pointed out that the ratification of the treaty itself “simply detaches those islands from Spain,” and argued that the United States should first ratify the treaty, and then decide what to do with the Philippines.60 He took issue with “the policy of throwing them back upon Spain or upon themselves, merely because we individually do not want them,” as alternatives “unworthy of the nation and of the subject in hand,” but not as unconstitutional.61 Whitney made a stronger claim, addressing the “very singular misapprehension” that territory that “becomes a part of the United States ... could no more be ceded to a foreign country than one of the States could be.”62 In response, Whitney argued: First, that if the territorial clause of the Constitution applies to territory acquired since 1800, then there is an express power to dispose of it; second, that in any

case the power to acquire territory implies the power to dispose of it; third, that even a portion of a State can be ceded to a foreign government if the State gives its consent that the cession be made.63 That third scenario, he noted, “would not deprive the inhabitants of the ceded district of their citizenship.”64 Whitney also drew upon Baldwin’s argument, described above, that territories outside “America” could not be part of the United States, as an additional ground in support of the possibility of deannexation, adding that “the Supreme Court may yet deprive us, or relieve us, of those islands, by ruling that the Constitution gives to Congress and the Executive no power to annex, either as States, territories, colonies, or subject provinces, dominions which are no part of America.”65 In this view, even if these islands had been annexed in fact, the Court could decide that they had never been annexed in law (because they were not within the America to which the Constitution referred). In other words, not only did the Constitution pose no obstacle to deannexation; the Constitution made it possible to argue that annexation had never really happened in the first place, as if the deannexation of such territories were more like an annulment than a divorce. Another contributor to the discussion of deannexation similarly dismissed constitutional objections to the existence of such a power, although he acknowledged some limits upon its exercise. “The principle ... that Territory qualified for self-government is entitled to admission as a State ... holds good in all cases; though in cases conceivable, if not confronting us, the attempt fully to realize it might stretch out to the crack of doom.”66 There was no cause for concern, however, because we are not bound, morally or constitutionally, to shut our eyes to any fair chance of throwing off the burden, without injury to ourselves or to its contents. In the event of meeting with such a chance, or of bringing it to pass, the treaty making power, exercised in negotiating a treaty of independence, or even of cession, might open the door of honorable relief from a situation become intolerable to us, without any countervailing benefit to the Old Man of the Sea lashed on our shoulders by treaty, and pinned to them by bayonets. This is a constitutional possibility.67 Treaties, then, afforded a constitutional means of deannexation—unless the territory somehow proved itself fit for admission into statehood. That Congress could postpone admission until it deemed a territory ready was no surprise: Congress had always had the discretion to postpone admission on these grounds, a discretion it was then exercising with respect to Arizona, New Mexico, and Oklahoma (as well as Alaska and Hawaii, which the Court would soon declare incorporated territories).68 But the idea that Congress could simply throw off the burden was novel enough to require emphasis.

Linking the prospect of deannexation to an early stage in territorial acquisition was one way to reconcile nineteenth-century practices with twentieth-century imperatives. The notion that some territories could be deannexed need not be inconsistent with the idea that other territories had always been on the way to statehood, and still were; it all depended on which of several options Congress had selected. As one commentator explained, Congress could: (1) cede the territories to some other nation; (2) authorize an immediate withdrawal of American troops; (3) extend the protection of the United States over them, temporarily or permanently; or (4) govern them as territories of the United States.69 With respect to the fourth, familiar territorial stage, this writer added that it was unnecessary to determine whether Congress could govern such territory “permanently as such, or only temporarily until it shall become fitted” for statehood. But he did not say that it could be governed temporarily “until it shall become fitted” for independence.70 Instead, he associated deannexation with the earlier stages—those of military occupation and of protection. Thus he distinguished between those territories on their way to statehood (his fourth category) and those not necessarily headed in that direction. Gardiner made a similar point when he described a broad-ranging congressional power to make “preliminary” decisions concerning territory: “All questions also incident to acquisition and preliminary to government—whether the territory be contiguous or remote; whether our tenure be temporary or permanent; whether we keep, or give back, or sell, or lease; these are all political problems intrusted [sic] without appeal to the discretion of Congress.”71 His characterization of these alternatives as “preliminary to government” implied that, once Congress had begun to govern the territory, not all of these choices would remain available. Solicitor General Richards, who in addition to arguing the Insular Cases contributed an article to the debate that preceded them, emphasized the importance of preserving the option of withdrawal by delaying the incorporation of annexed territory. Resorting to a hypothetical that White would resurrect in Downes, Richards explained that the United States might acquire territory at the end of a war “to indemnify its citizens for the injuries they have suffered, or to reimburse its government for the expenses of the war.” But “[t]o incorporate such territory into the Union and make it part of the United States might defeat the very object of acquisition. Once there it would have to stay, for no power exists within the Union to dismember it.”72 Baldwin addressed the question of deannexation in some detail.73 His discussion sheds some light on the ambivalence that underlay these efforts to keep the option of deannexation open, which combined both a skepticism of the capacity of the inhabitants of the new territories to govern themselves and a suspicion of the federal government’s efforts to run their affairs for them. On the one hand, Baldwin insisted that the new territories could be relinquished. On the other, he resisted the idea of giving them independence, as opposed to ceding them to another power. At the same time, he opposed the further pursuit of imperialist objectives by the United States. “To acquire, of course, is one thing,” began Baldwin; “to keep another.”74 Noting that “a conqueror is not bound and may not be able to retain what he receives,” he asked: “If we should be unable or unwilling to hold them permanently as a colonial dependence, how could we get rid of such possessions?”75 First Baldwin considered the possibility that a treaty could

accomplish a deannexation by transferring the territory “to some other power.”76 His language in the relevant passage suggests that he did not consider the Filipinos themselves the sort of power competent to engage in such a transaction, though he conceded that a successful revolt could result in independence for the Philippines.77 Then Baldwin discarded the possibility of deannexing the territory simply by way of a treaty, because deannexation would require the exercise of powers belonging to Congress as well.78 He explained: To sell or give away any part of the national domain reduces by so much the national resources. As all measures to raise revenue must originate in the House of Representatives, and to stop the revenues from any territory by its alienation would require raising more revenue by taxation, it would seem proper, if not necessary, that the whole of Congress and not merely the President and Senate should concur in any measure that reduced the area of the republic.79 In other words, although territory could not be deannexed by treaty, it could be deannexed by simple legislation.80 Baldwin then added, however, that a “temporary ... military or colonial government” could be established at first, but that, upon ratification of the treaty of cession, “Congress could replace the temporary government ... and maintain it until the inhabitants may be fit to govern themselves” through statehood.81 Thus Baldwin limited the possibility of deannexation to an early stage in the acquisition of territory. The power of deannexation that Baldwin seems to have had in mind had other limits as well. On the question of whether the United States could grant independence directly to the Philippines (as opposed to ceding them to another power), he wrote: No authority for such a transaction is expressly given in the Constitution. If implied, it would probably have to rest on the assumption that the Philippines had proved a damnosa hereditas. There would be greater difficulty in defending it on the ground that we had taken them as an act of humanity to spread the blessings of independent liberty over an oppressed people, after we had elevated and educated them sufficiently to make them fit to use it aright. For foreign missionary work of this kind in another continent, our Constitution contains no provision.82 In this view, the United States had an implied constitutional power to cede the territory directly to the Filipino people only if they became a burden to the United States. Otherwise, some combination of the power to dispose of territory and the power to make treaties could amount to a distinct constitutional power to cede the Philippines to another nation. Baldwin did not make a very persuasive case for a constitutional distinction between the power to grant independence to troublesome territories on the one hand, and the power to cede

territory to other nations on the other hand. In fact, he seemed both to go out of his way, and to weaken his arguments, in an effort to affirm the possibility of deannexation while resisting the corollary of Philippine independence. But Baldwin does not seem to have been interested merely in denying the Filipinos self-government. Like other contributors to the debate, he seems also to have been concerned that American officials would take up their self-imposed white man’s burden with too much enthusiasm. Thus he sought to refute the notion that the United States could go about the world, indiscriminately acquiring territory, for the ostensibly humanitarian purpose of preparing foreign peoples to govern themselves. It is possible to detect in these discussions of deannexation a sense of disquiet over the consequences of an American colonial empire for the future of the American constitutional republic. As we have seen, one commentator spoke of the crack of doom; another of a damnosa hereditas; yet another of future irrepressible conflicts. Something about these new territories—some combination perhaps of foreignness, race, population density, distance, and noncontiguity (along, no doubt, with the Filipinos’ immediate success in revealing chinks in the armor of the American military)—inspired these misgivings, which concerned the integrity of the nation itself as much as the risks looming beyond its borders (whatever those borders had now become; that they were so difficult to pin down doubtless contributed to the anxiety). “It will be argued by some,” declared Lebbeus F. Wilfley in a farewell address to the bench and bar of St. Louis prior to leaving to serve as a judge in the Philippines, “that this radical departure is destined to shorten the life of our Republic and carries with it the seeds of decay.”83 Wilfley’s answer to these fears stands out for its temerity: To this I can only reply that with nations as with individuals, their value does not depend on their length of life. Length of days in itself is not a virtue.... It may be that our Republic will pass away and be followed by a greater. But if it does, of one thing we may be sure, that American liberty and American justice will descend to posterity along with Hebrew faith, Greek art, and Roman law, as one of the most precious heritages of mankind.84 These musings on the consequences of empire for the future of the United States as a constitutional republic were more courageous than most. Wilfley’s contemporaries proposed numerous ways to reconcile two seemingly contradictory visions—constitutional republic or colonial empire—but, unlike Wilfley, they seemed to take it for granted that the goal was to preserve the Union as they knew it, while sorting out what to do about its brand-new colonies. Some insisted that the only way to combine constitutional republic with colonial empire was to admit every annexed territory into statehood. Others argued that the two visions had always been consistent, and that it made little difference if the United States now turned from maintaining colonies temporarily to keeping them permanently. Meanwhile, those who turned to deannexation for a solution likewise assumed the importance of preserving the American system. In their view, colonial empire could be reconciled with constitutional republic, but the

only way to do so was to make space for an honorable, and constitutional, retreat.

FROM UNINCORPORATION TO DEANNEXATION Justice White’s concurrence in Downes gave the proponents of deannexation what they were looking for. As the preceding discussion suggests, it was far from obvious prior to the Insular Cases that the United States could constitutionally deannex territory—at least not once it had become domestic territory, and governed by Congress under the Territories Clause. Sometime soon thereafter, this question ceased to be debated, and it came to be widely taken for granted that there was no constitutional obstacle to the independence of places like the Philippines and Puerto Rico. White’s concurrence in Downes made, I believe, a critical contribution to this transition, with its distinction between incorporated and unincorporated territories. As White explained, the deannexation of territory subject to U.S. sovereignty remained constitutionally possible as long as such territory remained unincorporated, regardless of what other steps (short of statehood) Congress took otherwise to integrate it into the United States. Several passages in Justice White’s concurrence in Downes reveal that he recognized the importance of keeping open the option of deannexation, and that he crafted his doctrine accordingly.85 These passages have received little or no attention in the scholarship on the Insular Cases, which has long adhered to a more familiar interpretation of the doctrine of territorial incorporation, according to which it distinguished between territories to which the Constitution applies in its entirety and those to which only its fundamental provisions apply. I challenge this interpretation of the doctrine and review the relevant language in White’s concurrence in more detail elsewhere.86 Here, I simply point to some of these passages, which I believe support a deannexationist interpretation of the doctrine of territorial incorporation. In his concurrence in Downes, White explained, for instance, that neither the treaty ceding the former Spanish colonies to the United States nor subsequent congressional legislation respecting them had provided for their incorporation. He then reasoned that this failure to incorporate gave cause for relief, for, if the territories had been incorporated, the result would have been “that the millions of people to whom that treaty related were, without the consent of the American people as expressed by Congress, and without any hope of relief, indissolubly made a part of our common country.”87 Reviving the hypothetical that Solicitor General Richards had used in his article, White asked: “Would not [a] war, even if waged successfully, be fraught with danger if the effect of occupation was to necessarily incorporate an alien and hostile people into the United States?”88 The United States, he continued, might be faced with the need “to hold the conquered country for an indefinite period, or at least until such time as Congress deemed that it should be either released or retained because it was apt for incorporation into the United States.”89 A rule of immediate incorporation, in contrast, would have deprived Congress of the power to decide whether a territory should be “released or retained.” White also argued that American citizenship must be withheld from the inhabitants of an annexed territory unless and until Congress was ready to incorporate it. Here, again, his reasoning appears to have rested on the assumption that unincorporated territory could be

separated from the United States: as he put it, a grant of citizenship to the inhabitants of unincorporated territory would render such citizenship “precarious and fleeting, subject to be sold at any moment like any other property”90—presumably because such territory could be deannexed. The exception proved the rule. “True,” White acknowledged, the exigencies of war could force the expatriation of American citizens. However, this fact “cannot justify the general proposition that territory which is an integral part of the United States may, as a mere act of sale, be disposed of.”91 As for those territories not an integral part of the United States, they, apparently, could be disposed of. That was precisely the reason not to incorporate them. As noted above, this and similar language in White’s concurrence has been overlooked by scholars of the Insular Cases, who have focused instead on passages that support the traditional interpretation of these cases (to wit, that they held the Constitution applicable in incorporated territories, and almost entirely inapplicable in unincorporated territories). But the implications of White’s reasoning did not entirely escape notice among contemporary observers. Assessing the results of the Insular Cases in 1902, one commentator described how the Court’s distinction between old and new territories had resolved his own doubts about deannexation. Praising their holdings, he wrote that he was glad to feel that it is possible to retrace the step which has been taken if such course shall be found to be advantageous to our nation, and that our government to-day has the power to throw off “the white man’s burden” which we have perhaps rashly assumed, and sell the Philippine Islands if it will benefit the United States, so as to part with them, without making sale of a single citizen of the United States.92 This writer assumed a necessary connection between citizenship and incorporation that the Court would later reject, when it held that, despite the grant of U.S. citizenship to Puerto Ricans in 1917, the island had still not been “incorporated” into the United States.93 Of course, that later decision would have offered this writer further reassurance, for it strengthened the proposition that the acquisition of territory need not trigger a series of events that would preclude their release: if even a grant of citizenship did not rule out deannexation, it was difficult to imagine what, short of statehood itself, would. Randolph also wrote about the decisions soon after they came down, and also identified deannexation as one of several goals served by the doctrine of territorial incorporation. “The sponsors of the incorporation theory,” he explained, “disclose the apprehensions which have provoked its fabrication.”94 These included “the disturbance of our economic system, the extending of our citizenship to obnoxious persons, the hampering of our activity in war, and the difficulty, if not the impossibility of ridding ourselves of undesirable possessions.”95 Conceding that these indeed constitute “[g]rave apprehensions,”96 Randolph nevertheless saw no need to go to such lengths as the Court had gone.

Justice White, wrote Randolph, “seems to think that if the Philippines are part of the United States, we cannot sell them to a foreign government, which no one now contemplates, nor recognize a local government under our protectorate, to which some look forward as the best settlement of the Philippine question.”97 White, Randolph added, had discussed “the question of sale from the premise that selling United States territory means selling citizens.”98 But selling land, Randolph insisted, did not amount to selling the people on it, just as buying land did not amount to buying its people.99 “Given the power to dispose of territory,” Randolph went on, “there is nothing in our Constitution to prevent the making of suitable treaty stipulations with its new government in regard to its administration,” a move that “would lie within the sphere of foreign relations.”100 Randolph made it sound easy, but of course the power to dispose of territory, set forth in the Territories Clause, belonged to solely Congress, whereas the treaty power did not. Doubts surrounding the possibility of deannexation had arisen largely because it was not at all clear that the power to dispose of territory belonged within the sphere of foreign relations. Justice White’s doctrine had dealt with precisely this difficulty, by reading the discretion over incorporation into Congress’s power under the Territories Clause, and thus preserving the power of deannexation for territory that had otherwise ceased to be within the sphere of “foreign relations.” One could have concluded, as Randolph and others did, that the power to govern territories simply included the power to “retrace the step which has been taken,” and that nothing further was needed to keep open the option of deannexation. But for those who had doubts, the Insular Cases provided the necessary reassurance. Justice White’s concurrence in Downes resolved these doubts by establishing that annexation by the United States need not amount to incorporation into the United States. Annexed territory would not become part of the United States, regardless of evidence to the contrary, until Congress specifically provided for its incorporation. Barring that, deannexation remained possible. As long as the Constitution—and constitution—of the United States did not follow the flag, deconstitution still could.

CONCLUSION Why has the deannexationist content of the doctrine of territorial incorporation been overlooked? As noted above, the possibility of independence for unincorporated territories itself has not been ignored—on the contrary, it has long been taken for granted (not to mention implemented, in the case of the Philippines). But the existence of this option as a constitutionally viable alternative has not been traced to Justice White’s doctrine, which instead has been summed up as having withheld constitutional provisions and a promise of statehood from the unincorporated territories. Why? The answer may lie precisely in the effectiveness with which the doctrine put to rest contemporary anxieties about deannexation. The distinction between territories within and outside the United States was instrumental here: of course the unincorporated territories could be separated from the United States; they had never been part of the “United States” to begin with. Like the commentator who was “glad to feel that it is possible to retrace the step which

has been taken if such course shall be found to be advantageous to our nation,” the exclusion of these territories from the United States proper meant there was no need for anxiety over territorial dissolution where these territories were concerned. They were subject to national sovereignty, yes, but not really part of “our nation.” Their deannexation could change nothing essential about the United States itself. Thus the issue (and the territories themselves) could be forgotten by most Americans, as indeed they were. The effects of the doctrine played out somewhat differently in those unincorporated territories that, unlike the Philippines, never received a promise of eventual independence, much less independence itself. There, too, the availability of independence as a constitutionally viable option has been widely assumed, and confirmed by the evolution of the idea of self-determination over the course of the twentieth century. Yet the idea that these territories were not really part of the United States has had to contend with the inescapable reality that, for most practical purposes, they were. In Puerto Rico, for instance, which is by far the largest remaining unincorporated territory, this phenomenon has been particularly pronounced, due to its proximity to the United States and Puerto Ricans’ history of extensive migration to (and return from) the mainland. Although Puerto Rico has never had federal representation and has always been exempted from a few otherwise generally applicable federal laws, these exceptions are like sand castles under a tidal wave of integration into the United States—economic, political, cultural.101 For every way in which Puerto Rico has been excluded from the United States, there are innumerable ways in which it has been treated as if it were a state of the Union. Not surprisingly, many find the idea that Puerto Rico is not really a part of the United States difficult to take seriously. Still, everyone knows that, in some sense, Puerto Rico is not fully part of the United States. With this uncertainty comes a pervasive ambivalence among many Puerto Ricans about their relationship to the United States, which manifests itself, among many other ways, in a curious contradiction: while the notion of a distinct Puerto Rican nationality enjoys significant popularity on the island, the option of independence commands almost no support at the polls. Instead, at least since the mid-twentieth century, most of those political leaders who insist on the idea of a distinct Puerto Rican nationality have simultaneously struggled to secure from Congress an unequivocal declaration that Puerto Rico and the United States are bound to each other in “permanent” union. Most other Puerto Rican political leaders have insisted on permanent union, too, in the form of statehood.102 The ever-present possibility of deannexation has thus had some intended effects and some entirely unpredictable consequences. Among the former, the idea that Puerto Rico was not quite part of the United States proved extraordinarily resilient, and may well explain why the island’s potential for separation from the United States does not agitate most (non-Puerto Rican) Americans, though Puerto Ricans have been U.S. citizens since 1917 and the island’s relationship to the federal government is in many ways quite like that of a state.103 It may be that Puerto Ricans are so different from other U.S. citizens that the preservation of the option of deannexation just makes sense. Then again, it may be the other way around: the fact that deannexation has never been ruled out for Puerto Rico has undoubtedly contributed to the

stubborn notion that Puerto Ricans are not quite American. The most unpredictable of the consequences of White’s doctrine, however, must be the way in which the ever-imminent possibility of deannexation produced, in Puerto Rico at least, a constant clamor for, of all things, permanent union with the United States.104 Even as the power of deannexation has been rhetorically transformed into an asserted right to independence under international law, Puerto Rican political leaders have worked feverishly, and so far unsuccessfully, to relinquish this unsolicited right. Seldom has a colonial situation been more perverse. In the final analysis, in view of its aims, Justice White’s doctrine must be declared a resounding success in that it did indeed preserve the option of deannexation while at the same time mitigating lingering anxieties about the dissolution of domestic territory and the separation of American citizens from the United States. As long as the place in question was not “really” American, its separation gave (other) Americans no cause for alarm. But in retrospect, the doctrine has not proved nearly as effective in excluding the unincorporated territories from some conception of the United States as a national entity. The denial of incorporation in name has not wholly precluded incorporation into the United States in fact; incorporation of the latter sort has proceeded apace. Ultimately, by its push and pull, White’s doctrine created an American nation with a retractable outer boundary, and relegated the inhabitants of the American colonial possessions to its disposable margins. It thus reconstituted the “United States,” as neither singular nor plural, but rather as the indivisible core of a newly divisible American nation.

NOTES * I am grateful to the participants in “The Louisiana Purchase and American Expansion: A Bicentennial Symposium” (U.T. Austin School of Law, February 2003) for their reactions to an earlier draft of this chapter. I especially appreciate the detailed comments of volume editors Sanford Levinson and Bartholomew Sparrow, commentators Sarah Cleveland and T. Alexander Aleinikoff, and my co-panelist Dean Efrén Rivera Ramos, as well as the generous feedback of D. Graham Burnett and Eric Yellin. Many others have offered their suggestions on an article in the University of Chicago Law Review where I develop the arguments here in greater detail; see “Untied States: American Expansion and Territorial Deannexation,” 72 University of Chicago Law Review 797 (2005), and acknowledge them in that piece. 1 The most frequently cited contributions to this legal debate were five articles published in the Harvard Law Review in 1898 and 1899. See Abbott Lawrence Lowell, “The Status of Our New Territories: A Third View,” 13 Harvard Law Review 155 (1899); James Bradley Thayer, “Our New Possessions,” 12 Harvard Law Review 464 (1898); Simeon E. Baldwin, “Constitutional Questions Incident to the Acquisition and Government of by the United States of Island Territory,” 12 Harvard Law Review 393 (1898); C. C. Langdell, “The Status of Our New Territories,” 12 Harvard Law Review 365 (1898); Carman F. Randolph, “Constitutional Aspects of Annexation,” 12 Harvard Law Review 291 (1898). In this essay I discuss these and other articles addressing American imperialism that appeared in the following publications

between 1898 and 1901: American Law Register (now the University of Pennsylvania Law Review), American Law Review, Columbia Law Review, Harvard Law Review, Michigan Law Review, and Yale Law Journal. In addition, I draw upon the parties’ arguments in the Insular Cases of 1901. See Albert H. Howe, ed., The Insular Cases: Comprising the Records, Briefs, and Arguments of Counsel in the Insular Cases of the October Term, 1900, in the Supreme Court of the United States, including appendixes thereto, H.R. Doc. No. 509, 56th Cong., 2d sess. (1901). Justice White’s concurrence is at Downes v. Bidwell, 182 U.S. 244, 287 (1901). 2 See generally, for example, David W. Blight, Race and Reunion: The Civil War in American Memory (Cambridge, Mass: Belknap, 2001). Blight discusses the role of still-vivid memories of the Spanish-American War and the imperialist period at 345—54. 3 Texas v. White, 74 U.S. 700, 725 (1868). 4 See note 1. 5 Charles A. Gardiner, “Our Right to Acquire and Hold Foreign Territory,” 33 American Law Review 161, 183 (1899). 6 Edward B. Whitney, “The Porto Rico Tariffs of 1899 and 1900,” 9 Yale Law Review 297, 314 (1900). For a discussion of the important role played by maps in shaping popular conceptions of the “American empire” at the turn of the century, see Raymond B. Craib and D. Graham Burnett, “Insular Visions: Cartographic Imagery and the Spanish-American War,” 61 The Historian 101 (1998). 7 Selden Bacon, “Territory and the Constitution,” 10 Yale Law Review 99, 115 (1901). 8 See William Bradford Bosley, “The Constitutional Requirement of Uniformity in Duties, Imposts, and Excises,” 9 Yale Law Journal 164, 169 (1900). Bosley did not say whether the District of Columbia counted as a “constituent member of the Union.” Although Whitney also focused on the meaning of the phrase in the Uniformity Clause, he took into account the clauses immediately preceding it, arguing that these prior clauses obviously referred to both states and territories, and that “it would be an unjust reflection upon the draftsmen of that instrument to say that they were using it twice in this paragraph with different meanings.” Whitney, “The Porto Rico Tariffs of 1899 and 1900,” 313-14. 9 Langdell, “The Status of Our New Territories,” 365, 368, 370. 10 Ibid., 365; C. C. Langdell, “The Status of Our New Territories” (letter to the editor), 12 Harvard Law Review 494 (1899). This list did not include North Carolina or Rhode Island. Langdell argued in his letter that “the authors of this Act, who may also be said, without great exaggeration, to have been the authors of the Constitution, did not regard either the states of Rhode Island and North Carolina, or the great North-West Territory, as constituting any part of the United States at the time when the Act was passed.”

11 Langdell, “The Status of Our New Territories,” 370-71. Langdell situated the origins of this version of the phrase prior to the adoption of the Constitution, on September 3, 1783, when Britain first ceded sovereignty to the (collective) United States over lands outside their boundaries. See ibid., 371; see generally D. W. Meinig, The Shaping of America, vol. 2: Continental America, 1800-1867 (New Haven: Yale University Press, 1993), 123-25. 12 Thayer, “Our New Possessions,” 482. 13 Randolph, “Constitutional Aspects of Annexation,” 296-97. 14 18 U.S. (5 Wheat.) 317, 319 (1820). Professors Levinson and Sparrow note the importance of Loughborough and quote its famous passage in full in the introduction to this volume. 15 Even the passage asserting that the District formed part of the United States was part of one of two alternative arguments that Chief Justice Marshall offered in support of the holding. 16 Paul R. Shipman, “Webster on the Territories,” 9 Yale Law Journal 185, 189 (1900). 17 Ibid. 18 Baldwin, “Constitutional Questions,” 409. 19 Whitney, “The Porto Rico Tariffs of 1899 and 1900,” 320. 20 Langdell, “The Status of Our New Territories,” 371. Their reluctance has proved lasting. See Niall Ferguson, “Hegemony or Empire?,” 82 Foreign Affairs 154, 155 (Sept./Oct. 2003). (“[W]hereas the British were generally quite open about the fact that they were running an empire, few American politicians today would use the ‘e’ word as anything other than a term of abuse.”) 21 Langdell, “The Status of Our New Territories,” 371. 22 Ibid. 23 Ibid. 24 Brief for Appellants, Goetze v. United States, in Howe, The Insular Cases, 83. 25 Ibid. 26 Brief for the United States, Goetze v. United States, ibid., 200-201. 27 Ibid., 201. 28 Brief for Appellants, De Lima v. Bidwell, ibid., 538.

29 Ibid. 30 Although it was not a party in De Lima, the government’s brief addressed the issues in that case as well as in Downes, 182 U.S. 244; Armstrong v. United States, 182 U.S. 243 (1901); Dooley v. United States, 182 U.S. 222 (1901); Crossman v. United States, 182 U.S. 221 (1901); and Dooley v. United States, 183 U.S. 151 (1901). 31 Brief for the United States, De Lima v. Bidwell, in Howe, The Insular Cases, 629. Taken literally, the government’s reasoning in the quoted passage arguably would have left the District of Columbia out of the first meaning, but that was probably not what the government intended. 32 Ibid. 33 See Brief for Appellants, De Lima v. Bidwell, ibid., 539. 34 See Brief for Appellants, Goetze v. United States, ibid., 91. 35 Transcript of Oral Argument in Goetze v. United States, Solicitor General John K. Richards, in ibid.. 696 (hereafter cited as “Richards Argument”) (emphasis in original). 36 Ibid. 37 Ibid., 696-97. 38 Ibid., 698. The oral arguments in the Insular Cases spanned several days. 39 Ibid. For some reason Richards did not describe the fourth meaning as also “geographical,” though it clearly was. 40 The organic act, also known as the Foraker Act, appeared at 31 Stat. 77 (1900). 41 See, for example, José Trías Monge, Puerto Rico: The Trials of the Oldest Colony in the World (New Haven, Conn.: Yale University Press, 1997), 44 (“Professor Abbott Lawrence Lowell . . . was the principal exponent of a third view . . . eventually adopted by the Supreme Court.”); Gerald Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (Princeton, N.J.: Princeton University Press, 1996), 85 (“Lowell’s ... distinction between two kinds of acquired territories ... would eventually persuade a majority of the Supreme Court.”); but see Juan R. Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal (San Juan, P.R.: Editorial Universitaria, 1985), 31 (acknowledging the influence of Lowell’s article, among others, upon the Court, but noting that “[i]n reality Lowell’s so-called ‘third view’ was a refined version of Thayer’s undocumented article”); Stanley K. Laughlin, Jr., The Law of United States Territories and Affiliated Jurisdictions (Rochester, N.Y.: Lawyers Cooperative Publishing, 1995), 106n4 (citing several turn-of-the-century articles that foreshadowed the Insular Cases, including four of the five

Harvard Law Review articles, but not Lowell’s). 42 See Lowell, “The Status of Our New Territories, 173-76. 43 This discussion did not occur in a vacuum, but rather in the context of a lively contemporary debate among European international lawyers over the nature of sovereignty and its role in European imperialist expansion. See Marttii Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge, U.K.: Cambridge University Press, 2001), chap. 2. 44 Frank J. R. Mitchell, ”The Legal Effect of the Acquisition of the Philippine Islands,“ 48 American Law Register 193, 200-201 (1900). 45 LeRoy Parker, “The Constitution in Porto Rico,” 10 Yale Law Journal 136,143 (1901). 46 Thayer, “Our New Possessions,” 480. 47 Ibid., 471. 48 Randolph, “Constitutional Aspects of Annexation,” 313. Earlier in his article, Randolph insisted that one territory could not be distinguished “organically” from another, a point that seemed to contradict his later reasoning that territory could make a transition from the international context to that of “normal” sovereignty. Perhaps Randolph meant that becoming part of the United States “internationally” did not even amount to annexation. 49 On the development of doctrines of “inherent sovereignty” designed to uphold exercises of power largely unrestrained by the Constitution, see Sarah H. Cleveland, “Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth-Century Origins of Plenary Power over Foreign Affairs,” 81 Texas Law Review 1 (2002). 50 Clifford S. Walton, “Change of Sovereignty of a People and the United States Constitution,” 48 American Law Register 580, 585 (1900). 51 Gardiner, “Our Right to Acquire and Hold Foreign Territory,” 167-68. 52 George P. Costigan, Jr., “The Third View of the Status of Our New Possessions,” 9 Yale Law Journal 124, 129-30 (1899). 53 As Loughborough put it, territorial status was a “state of infancy advancing to manhood, looking forward to complete equality so soon as that state of manhood shall be attained.” 18 U.S. 325. 54 Elmer B. Adams, “The Causes and Results of our War with Spain from a Legal Standpoint,” 8 Yale Law Journal 119, 129, 132 (1899).

55 Ibid., 132. 56 David K. Watson, “Acquisition and Government of National Domain,” 21 American Law Review 239, 253-54 (1907). Watson’s distinction between “district” and “territory” mirrored that between unorganized and organized territories. 57 Bacon, “Territory and the Constitution,” 101. 58 H. Teichmueller, “Expansion and the Constitution,” 33 American Law Review 202, 212 (1899). 59 John Kimberly Beach, “Constitutional Expansion,” 8 Yale Law Journal 225, 234 (1899). 60 Thayer, “Our New Possessions,” 484. 61 Ibid. 62 Whitney, “The Porto Rico Tariffs of 1899 and 1900,” 314 and n59. The footnote cited John C. Spooner’s remarks in the Senate on April 12, 1900. 63 Ibid. 64 Ibid. 65 Ibid., 320. 66 Shipman, “Webster on the Territories,” 205-06. 67 Ibid., 206. 68 See Rassmussen v. United States, 197 U.S. 516 (1904); Hawaii v. Mankichi, 190 U.S. 197 (1903). In Mankichi, the Court held that Hawaii had not been incorporated at the time of the events at issue in that case, but that Congress had subsequently incorporated these islands. For a state-by-state discussion of the reasons for congressional resistance and delays in admitting states, see Grupo de Investigadores Puertorriquenos, Breakthrough from Colonialism: An Interdisciplinary Study of Statehood, 2 vols. (San Juan, P.R.: Editorial de la Universidad de Puerto Rico, 1984). 69 Mitchell, “The Legal Effect of the Acquisition of the Philippine Islands,” 200-201. 70 Ibid., 202. 71 Gardiner, “Our Right to Acquire and Hold Foreign Territory,” 166 (emphasis added). Nb. The author of an article published in a different law journal the following year must have agreed strongly, for he wrote almost exactly the same sentence. See Walton, “Change of

Sovereignty of a People and the United States Constitution,” 581 (“Questions also incident to acquisition and preliminary to government, whether the territory be contiguous or remote, whether our tenure be temporary or permanent, whether we keep, lease, sell, or grant independence; these are all political matters intrusted without appeal to the discretion of Congress.”). 72 John K. Richards, “The Constitution and the New Territories,” 34 American Law Review 670, 674 (1900). Although Richards used the term “Union,” and later in his article he seemed to associate the term “Union” with statehood, here he linked Union with incorporation, and incorporation with one among several categories of territory. 73 Baldwin used the words “get rid of,” “dispose of,” and “alienate.” See Baldwin, “Constitutional Questions,” 409-10. 74 Ibid., 409. 75 Ibid., 409, 410. 76 Ibid., 410. 77 Ibid. 78 Ibid. 79 Ibid. 80 Despite Baldwin’s use of the word “republic,” it is difficult to imagine that he thought the same reasoning applied to the states; but he did not address the issue. 81 Ibid., 411. That the third stage constituted a transition to statehood became evident as the paragraph continued: Baldwin went on to explain that, for territories governed by Congress, “admission into the privilege of statehood” may be long delayed. Ibid. 82 Ibid. Black’s Law Dictionary defines a damnosa hereditas as “a losing inheritance; an inheritance that was a charge, instead of a benefit.” 83 L. R. Wilfley, “Our Duty to the Philippines,” 10 Yale Law Journal 309 (1901). 84 Ibid., 313. 85 Amy Kaplan’s close and insightful reading of Downes detects in its language a deep sense of fear for the integrity of the nation, inspired by the prospect of American imperialism. See Amy Kaplan, The Anarchy of Empire in the Making of U.S. Culture (Cambridge, Mass.: Harvard University Press, 2002), 1-12.

86 See Burnett, “Untied States” (forthcoming). 87 Downes, 182 U.S. at 315 (emphasis added). 88 Ibid., 307-08. 89 Ibid., 308. 90 Ibid., 314-15. 91 Ibid., 317. Justice White discarded the idea that Congress’s power to “dispose of” territory under the Territories Clause, see art. IV, cl. 3, §2 (“Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”), encompassed the power to release territory. He reasoned instead that the phrase “dispose of” referred only to “a mere transfer of rights of property.” Downes, 182 U.S. at 314. 92 Eugene Stevenson, “The Relation of the Nation to Its Dependencies,” 36 American Law Review 366, 385 (1902). 93 See Balzac v. Porto Rico, 258 U.S. 298 (1922). 94 See Carman F. Randolph, “The Insular Cases,” 1 Columbia Law Review 436, 457 (1901). 95 Ibid. 96 Ibid. 97 Ibid., 459. 98 Ibid., 460. 99 Ibid., 461. 100 Ibid. 101 On some of these pressures in the cultural and political realms, see generally Ramón Grosfoguel and Frances Negrón-Muntaner, eds., Puerto Rican Jam: Essays on Culture and Politics (Minneapolis: University of Minnesota Press, 1997). 102 I have compared these proposals for permanent union in more detail in Christina D. Burnett, “The Case for Puerto Rican Decolonization,” 45 Orbis 433 (2001). Proposals for a permanent union, whether by statehood or some other means, have in recent decades enjoyed the support of over 90 percent of the electorate.

103 In the 2000 Census, Puerto Rico’s population of 3.8 million came in just behind South Carolina’s (ranked 26th, at 4.0 million) and ahead of Oklahoma’s (ranked 27th, 3.5 million). For state population rankings, see census.gov/population/cen2000/phc-t2/tab01.pdf (visited on February 13, 2005). 104 This clamor for permanent union may be understood in some sense as a clamor for a final resolution—any resolution, as long as it is final—to the unending debate over status. In his contribution to this volume, Mark Graber explores, in the context of Texas, the importance of settling such basic constitutive questions as whether a place is part of one nation or part of another. Graber asks why it is that, with the exception of a few die-hard adherents of the Republic of Texas movement, no one seems to question that Texas is part of the United States, despite the fact that many respected American legal thinkers (who continue to be cited as weighty authority on other matters) insisted at the time that the admission of Texas into statehood had been patently unconstitutional. In the process of explaining how this question came to be settled, Graber compellingly demonstrates the importance of its settlement for the health and well-being of public life. “Life in Texas,” writes Graber, “would be hopelessly chaotic if one administration treated Texas as never having been part of the union, the next administration treated Texas as never having left the union, and so on.” This observation brings to mind Puerto Rico’s own hopelessly chaotic political life: one administration treats Puerto Rico as someday a part of the union, the next as never quite part of the union, the third as never even close, and so on, endlessly. For eloquent testimony to the damage that this lack of a settlement has done to Puerto Rican politics and civic life, see Trías Monge, Puerto Rico: The Trials of the Oldest Colony in the World, chap. 14.

10 Modes of Rule in America’s Overseas Empire: The Philippines, Puerto Rico, Guam, and Samoa Julian Go We have met here today to commemorate the hundredth anniversary of the event which more than any other, after the foundation of the Government and always excepting its preservation, determined the character of our national life— determined that we should be a great expanding nation instead of relatively a small and stationary one. President Theodore Roosevelt, April 30, 1903 (Address at the Dedication Ceremonies of the Louisiana Purchase Exposition)1 One hundred years ago, the Louisiana Purchase was celebrated at the St. Louis Fair (also known as the Universal Exposition of 1904). President McKinley had planned for the fair to be a “commemoration of the Purchase of the Louisiana Territory” and, indeed, the fair offered a retrospective view on the pattern of continental expansion that the purchase had initiated. Speeches made by American dignitaries typically began by reference to the purchase, and certain days of the fair were named after the existing states and territories to commemorate their birth.2 Yet the celebration of the past at the fair was also a celebration of America’s present. The pattern of continental expansion sparked by the purchase was celebrated, but so too was the emergence of America’s recent overseas empire. For the fair, some twelvehundred Filipinos had been brought over from the Pacific to be put on display. They stayed in model huts and villages, replicas of their exotic originals, and visitors were invited to watch as they conducted their daily activities. The biggest hit were the so-called savage and semicivilized tribes of the islands. Visitors, mostly white, watched with curious amazement as the scantily clad Igorots, from the highlands of central Luzon, sacrificed and ate dog.3 America’s imperial past and present were clearly conjoined at the fair. On the day that the Philippine exhibit opened, William Howard Taft (the first governor of the Philippines), gave a speech in which he laid out the history of the Louisiana Purchase. He then invited the visitors to see the Philippine exhibit, the aim of which was “to make the people who come to

commemorate the vindication of one great effort of American enterprise and expansion understand the conditions which surround the beginning of another.”4 Apparently, overseas empire was but a continuation of the Louisiana Purchase. Furthermore, during the Philippine exposition, the anthropologist Frederick Starr accompanied chief Big Horn of the Sioux to the Igorots’ village and introduced him to the Igorot leaders. One newspaper reported it as “the first exchange of international courtesy between the savage peoples at the World’s Fair.”5 But it was more accurately the first exchange between America’s colonial subjects at home and its new subjects overseas. In the first part of this chapter I will further elaborate some of these continuities between the Louisiana Purchase and America’s new overseas empire. I will discuss not only the Philippines but also the three other “unincorporated” overseas colonies at the time: Puerto Rico; Guam; and Samoa.6 As we will see, it was not without good reason that the St. Louis Fair portrayed continuity between domestic and overseas empire, for the institutional and ideological principles of the purchase had direct and indirect influence on overseas rule. The purchase set the basis for and legitimated overseas annexation; it also provided models for overseas governance. More than a precursor to overseas empire, it was critical for its shape and sustenance. Still, continuity is not the only story to be told. As I will show in the second part of the chapter, while some of principles of the Louisiana Purchase were applied to the colonies, they were nonetheless applied within the particular historical context of turn-of-the-century America, and the new colonies differed not only from continental territories but also from each other. These factors thus gave the principles of the purchase a new accent, adding novel features to America’s overseas empire. They also helped to form an overseas empire differentiated within itself—an “imperial archipelago” of different colonial regimes and different internal temporalities.7 The overarching point of the chapter is not to demonstrate a seamless continuity between continental and overseas empire. Nor is it to posit a radical break. It is to consider, rather, some of the ways in which the ideological and institutional principles of the Louisiana Purchase were at once applied and yet reworked as America’s overseas empire was forged, fostered, and sustained. Every reproduction of the past is also a difference, every instantiation of prior structures their revaluation. And in regards to overseas empire, the implications were as profound as they were tragic, not least for America’s new colonial subjects in Puerto Rico, the Philippines, Guam, and Samoa.

THE EASE OF EMPIRE AND MODELS FOR RULE One of the ways in which the Louisiana Purchase served overseas empire is that it laid down and legitimated the sequence of annexation. Puerto Rico, the Philippines, Guam, and Samoa were all acquired by treaties and their fates were then put into the hands of Congress. The United States seized Guam, the Philippines, and Puerto Rico from Spain in 1898 by the Treaty of Paris. The treaty put millions of new peoples into the sovereign hands of the United States, literally overnight.8 Similarly, the United States seized Samoa (the islands of Tutuila and

Manua) through the Berlin Treaty of 1899 with Germany and Great Britain, both of whom renounced, in favor of the United States, all “rights and claims over and in respect to the island of Tutuila and all other islands of the Samoan group east of longitude 171° west of Greenwich.”9 America’s novel overseas empire was as easy as raising a flag, or so it was for naval commander B. F. Tilley, who declared in Samoa at the inauguration ceremony of 1900: “I hereby declare the islands to be under the sovereignty and protection of the United States of America, and I hoist this American flag as a sign that these islands now form a part of the territory of the United States.”10 The U.S. Constitution facilitated these imperial moves by enabling the executive to enter into treaties and by not setting limits on the character of treaties.11 But had it not been for precedents laid down by the Louisiana Purchase, it is likely that the creation of overseas empire would have been more problematic than it was. Few statesmen worried over the new acquisitions to the degree that Jefferson had worried over Louisiana, and when the issue came to the Supreme Court, the Court referred to America’s previous history of expansion as justification.12 Accordingly, Elihu Root, U.S. Secretary of War put in charge of the colonies by President McKinley, had no trouble declaring that sovereignty over the new territories belonged to the United States. “I assume, for I do not think it can be successfully disputed,” Root wrote after the Treaty of Paris was signed, “that all acquisition of territory under this treaty [of Paris] was the exercise of a power which belonged to the United States, because it was a nation, and for that reason was endowed with the powers essential to national life, and that the United States has all the powers in respect of the territory which it has thus acquired.”13 This is not to say that everyone on the home front supported overseas imperialism. Opposition emerged as beet sugar producers in the south, fearing an influx of foreign sugar from the tropics, joined with northeastern anti-imperialists. Such opposition was similar to the opposition first raised when the Louisiana territory was acquired. The difference is that proexpansionist statesmen not only had legal but also historical precedent which they then leaned upon in their legitimating discourse. While anti-imperialists cried “foul,” pro-imperialists claimed that, due to continental expansion, overseas expansion was as American as apple pie. Theodore Roosevelt asserted at the St. Louis Fair that, by first acquiring the Louisiana territory, “we made evident once and for all that consciously and of set purpose we had embarked on a career of expansion.” Roosevelt even referred to critics of the Louisiana Purchase, registering parallels between them and critics of overseas expansion. In his view, all of these critics of empire were not of the “adventurous” and “far-seeing” type, hence not truly American: Excellent people in the East viewed this initial expansion of the country with great alarm.... These goodpeople shook their heads over the formation of States in the fertile Ohio valley which now forms part of the heart of our nation; and they declared that the destruction of the Republic had been accomplished when through the Louisiana Purchase we acquired nearly half of what is now that same

Republic’s present territory. Nor was their feeling unnatural. Only the adventurous and the far-seeing can be expected heartily to welcome the process of expansion, for the nation that expands is a nation which is entering upon a great career, and with greatness there must of necessity come perils which daunt all save the most stout-hearted.14 Senator Albert Beveridge of Indiana took the same approach. He argued that anti-imperialists were simply missing out on history to their own detriment: No American public man has ever survived resistance to American territorial expansion. No American political party has ever successfully opposed it. The proudest moments of many of our greatest statesmen have been their championship of this expanding instinct of our blood. In final history, Jefferson will be remembered chiefly for his Louisiana Purchase, which is now the geographical heart of the Republic. Polk and Taylor would already be forgotten but for the war with Mexico and the imperial dominion our victory gave us. Seward, splendid as his public services were and exalted as his statesmanship was, would be little known to the masses to-day but for his acquisition of Alaska; and McKinley’s name would in the record of a century have received no more than commonplace mention but for the Spanish conflict, and the bringing of the islands of the sea beneath the folds of our flag.15 Ostensibly, the Louisiana Purchase was but the first step in an empire inevitable. Or as Beveridge put it in reference to continental and overseas expansion alike: “None of this is an accident. There is reason and purpose in it all.”16 Not all pro-expansionists took the trouble of registering grandiose claims about America’s manifest destiny. They took a somewhat easier track by finding institutional precedents in the purchase. For instance, after the organic laws for Puerto Rico and the Philippines were first passed by Congress, critics complained because the laws restricted local self-government and gave the president alone the power to appoint ruling authorities. In response, William Willoughby (scholar and first treasurer of Puerto Rico) reviewed the organic law for Louisiana and concluded with confidence that the criticisms were unfounded. He noted that Congress had “not [previously] hesitated to deny the grant of such privilege [of self-government] until it has been satisfied that the inhabitants of the territory in question are fully qualified for its enjoyment.” He added that “the very provisions of the organic acts for the insular possessions that have received the most criticism as being violations of the political principles and traditions of the United States find ample precedent in the systems of government that have been created for dependent territories in the mainland.”17 The purchase was not so much a specter that haunted the new empire as it was a spirit conjured for its purpose. But it was not merely conjured as ideology. When it came to devising

the first form of colonial government for the Philippines, the spirit took on a more palpable form. In 1899, President McKinley appointed the Schurman Commission, headed by Jacob Schurman (then president of Cornell). The commission was charged with devising a form of civil government and making recommendations to Congress. The task was not a simple one. With little prior experience, the commission had to propose a government to rule seven million inhabitants. The commission pondered a number of models (examining, for instance, British forms of colonial rule around the world), but they swiftly rejected all of them and landed upon a solution which was eventually institutionalized. The solution deliberately concentrated executive, legislative, and judicial functions. It called for a colonial governor, appointed by the president, who would hold executive powers; it also called for the governor to sit alongside thirteen other presidential appointees on an executive council known as the Philippine Commission. The commission would formulate all legislation for the island, and the majority of the commissioners would be Americans. The solution also called for an elective national assembly to be established later on, but the Philippine Commission would act as the upper house. Along with the governor, it would have final veto power. Furthermore, the solution called for a Philippine Supreme Court, staffed by justices appointed by the president, and district courts staffed by appointees of the colonial governor. The Schurman commissioners admitted that their recommended colonial government mixed and mingled judicial, executive, and legislative powers whilst giving appointed Americans control. But their model and justification was Louisiana: This scheme of government possesses, besides its intrinsic merits, the historical interest attaching to origination with the author of the Declaration of Independence. Jefferson had outlined a first sketch as early as November, 1803.... He seems to have felt no incongruity between the principles of the Declaration of Independence of the thirteen self-governing colonies and this scheme of government for the politically inexperienced inhabitants of Louisiana. Indeed he complains with some bitterness, in December, 1903, when differences of opinion developed as to the manner of disposing of Louisiana, that “although it is acknowledged that our new fellow-citizens are as yet incapable of selfgovernment as children, yet some can not bring themselves to suspend its principles for a single moment.”18 The commissioners concluded by asserting that “these utterances of Jefferson, along with the Jeffersonian scheme for the government of Louisiana, have been cited on account of the applicability of their spirit in its entirety and their substance in great part to the problem of governing the Philippines.... In planning a frame of government we can not do better than follow Jefferson’s lead.”19 Recommendations for Puerto Rico were similar. All of them included a presidentially appointed governor, an executive council controlling all affairs, and an elective legislative

assembly subject to the veto power of the upper house and the executive council. Americans would unquestionably dominate the highest posts.20 Thus, as in the Philippines, the principle of separating powers was bracketed. Again, continental expansion served as justification. When military governor George W. Davis recommended this form of government, he insisted: “I have attempted to sketch a system of government such as in the history of the United States has been many times established in newly acquired territory.”21 In turn, when Elihu Root justified the same governmental form to President McKinley and to Congress, he stated that such government “is not without precedent in our own experience, for the provision of a governor and council was frequently adopted in our early territorial legislation.”22 William Willoughby likewise recited the Louisiana example, noting that when Congress had created governments for continental territories it did not separate powers either.23 Thus, with the purchase as precedent, not only was expansion deemed “American,” so too was colonial domination.

“THESE CHILDREN!” RACIAL DIFFERENCE AND THE DIFFERENCE IT MADE If there were continuities between continental and overseas expansion, however, there were also some important distinctions. Even Willoughby, always quick to find precedents in continental expansion to deflect criticisms of empire, underscored a difference. He contended that the new annexations marked “events of great importance” because they involved “the development of an entirely new phase in the expansion of the United States and to a certain extent representing a direct breaking with precedent.” By the acquisitions made during this period [ca. 1898] the United States has definitely entered the class of nations holding and governing over-sea colonial possessions. In all prior acquisitions [on the North American frontier] ... the essential principle upon which the acquisitions were based was that of the incorporation of the new territory into the Union upon full equality with the other States.... The ultimate result always in view was that of a single union of commonwealths all enjoying the same general form of government, possessing the same political rights and privileges, and together embracing all territory in any manner under the sovereignty of the United States. By the acquisition of Samoa . . . Porto Rico, Guam, and the Philippine Islands, the United States was for the first time confronted with the possibility, if not the certainty, that for an indefinite time to come the territory under its sovereignty would have to be divided into two classes having a different political status; the one constituting the United States proper and enjoying full political rights and privileges, and the other dependent territory in subordination to the former and having its form of government and the rights of its inhabitants determined for it.24 In speaking of the “two classes” of territories, Willoughby hit the nail on the head. Unlike Louisiana or Florida, or for that matter all other territories on the continent, the new colonies

were not slated to be immediately incorporated fully into the Union, if at all. To the contrary, by inventions of the Supreme Court in the Insular Cases, the colonies were declared “unincorporated.” As a number of scholars have shown, and as other chapters in this volume demonstrate, the distinction was juridically novel, even though it was in part justified by precedents regarding Louisiana. The status of “unincorporated” meant that Guam, Puerto Rico, and the Philippines (and by implication Samoa) were “foreign in a domestic sense,” subject to the plenary power of the U.S. Congress but not subject to the full protection of the American constitution. Colonial peoples enjoyed some “fundamental rights” but not all rights, and statehood was not an immediate possibility.25 None of the treaties in 1898 and 1899 made promises (implicit or explicit) that the inhabitants of seized lands would become citizens or that the new colonies would become territories or states. At best, these were matters left to Congress.26 “Th’ supreme court has decided”, said the cartoon character Mr. Dooley, “th’ constitution don’t follow th’ flag.”27 Or as Elihu Root himself put it: “Ye-es, as near as I can make out the Constitution follows the flag—but doesn’t quite catch up with it.”28 What was behind the novel category? For Willoughby, one of the key distinctions had to do with the fact that, while U.S. expansion on the continent had been facilitated by the “settlement by emigrants from the old territory and the consequent extension . . . of American institutions, political or otherwise,” expansion overseas had not been facilitated by such settlement.29 Willoughby was correct of course, for neither Puerto Rico, the Philippines, Guam, nor Samoa had been settled by Americans to the same degree that the continental territories (or even Hawaii) had been. But Willoughby’s observation occludes as much as it subtly discloses the real factor at play—race. Justice Brown of the Supreme Court clarified. On the one hand, the contiguous territory of the west had been “inhabited only by people of the same race [e.g., settlers], or by scattered bodies of native Indians.” By contrast, the new territories seized from Spain represented “differences of race, habits, laws and customs” as well as “differences of soil, climate and production.”30 If necessity is the mother of invention, the need to invent the new category “unincorporated” arose from the menace of incorporating difference. It is true that fears of difference had been involved in the Louisiana Purchase too. When Jefferson asserted that “our new fellow-citizens are as yet incapable of self-government as children,” he was pointing out that the inhabitants of Louisiana were largely of French descent and did not speak English. W. C. C. Claiborne, first governor in New Orleans, added: “the more I become acquainted with the inhabitants of this Province, the more I am convinced of their unfitness for a representative Government.” Such difference, and hence presumed inferiority, had served to justify tutelary control before full admission into the Union. As Claiborne stated: “Until . . . the progress of information shall in some degree remove the mental darkness which at present so unhappily prevails, and a general knowledge of the American language, laws, and customs be understood, I do fear that a representative Government in Louisiana would be a dangerous experiment.” Senator Mitchell of New York explained similarly: “They are thus to serve an apprenticeship to liberty; they are to be taught the lessons of freedom.... By degrees they will pass from the childhood of republicanism through the improving period of youth, and arrive at the mature experience of manhood.”31 Still, such discourse was about linguistic and ethnic difference. The issue in regards to the

overseas colonies was more clearly racialized. Ostensibly it was a matter of biology, blood, and stock—not tongue. Hence Justice Brown, in underscoring the differences between the new colonies and the territories on the continent, put racial difference first and foremost on his list; to wit: “differences of race, habits, laws, and customs.” This emphasis on racial difference permeated all of the Americans’ discourse at the time. Early officials in Puerto Rico were quick to note that a significant “Negro” population existed on the island, and they were just as quick to equate the Hispanicized Puerto Rican elites with Mexican populations in the Southwest.32 American authors of popular books about the island added their racial views by calling attention to the quaint if not threatening racial mix of the local population. “Many races and nationalities have contributed their share to the population of Porto Rico,” wrote Margherita Hamm in her book, Porto Rico and the West Indies (1899): Owing partly to nationality and partly to the climate the complexion of the Porto Ricans is a trifle darker than that of the Spaniard, Portugese or Italian. Probably the admixture of red and black blood has something to do with it; but the fact remains that they show greater varieties of brunette skin than any other people in the New World. Besides the orange-yellow of the mulatto there is a curious redorange which is very striking.33 Journalists writing on the Filipinos presented a picture of the inhabitants more decidedly derisive: “Nature, his environment, and the system of Spain during the last three hundred years have combined to make the Filipino, the degenerate scion of the ancient Malay pirates, typical of a racial sunset.”34 American soldiers fighting in the Philippine-American war had but one name for their opponent—“nigger”—and while American officials in the archipelago shunned the term, their characterizations were nonetheless racial and derogatory.35 Even some antiimperialists stood on racialized ground. Anti-imperialist forces in the South opposed overseas expansion because they feared that expansion would incorporate yet more “alien races” into the body politic. To them, Native Americans, African Americans, and the new immigrants had been quite enough. The emphasis on racial difference was more than a matter of slurs. It was elaborated and legitimated through new ideas on race that been brewing at the time. Indeed, when the United States expanded overseas, racial discourse at home had become intensified to new degrees and codified in new manners. By the late nineteenth century (that is, after Darwin and Spencer), various theories of race had been espoused in American intellectual circles and premier academic institutions. Propelled by Darwinian thought and Spencer’s social evolutionism, these theories underwrote nearly all of the nascent sciences in late nineteenth-century America.36 One of the major themes in the theories was the idea that all peoples of the world could be hierarchically ordered according to their racial characteristics, and hence according to their stage of cultural and social development. Supposedly, the evolution of mankind from savagery to barbarism to civilization was also an evolution of the races. Anglo-Saxons were at

the top of the ladder, while beneath them were an array of “lesser races” down to the darkest, and thereby the most savage, peoples.37 As Mark Wiener has shown, the use of all such racial schemes for classifying overseas colonial subjects served to slide the new “possessions” (as they were now called) into the category of “unincorporated.”38 But it also, by the same token, gave the discourse of childhood and tutelage employed by the rulers of Louisiana novel accent. After all, in the new racial discourse at home, the very notion of “childhood” had already been rethought along distinctly racial lines. G. Stanley Hall, the founder of American psychology, drew upon Spencer’s evolutionism to claim that the behavior and mental state of children were recapitulated in the development of the races. In this conception, if immigrants, Africans, or Pacific Islanders acted like children and thought like children it was because, in terms of their stage of development, they were children.39 Thus, when American officials and policy makers spoke of their new colonial subjects, they employed the discourse of childhood just like their predecessors in Louisiana, but the discourse was no longer metaphorical. Governor G. L. Dyer in Guam claimed that the Chamorros were not like children, but were in fact children, “easily controlled and readily influenced by example, good or bad.”40 Guy Henry, military governor in Puerto Rico, wrote similarly about Puerto Ricans: “I understand that these people are anxious for another form of government. My own opinion is that the form they now have is the one under which they should work for some time to come.... They are still children, each other has a different idea and they don’t really know what they do want.”41 As for the Filipinos, even though many of them had been educated and had fought against the Spanish for self-government, they were seen as just as incapable. “These children!” exclaimed Senator Albert Beveridge. “They are not capable of self-government. How could they be? ... Savage blood, Oriental blood, Malay blood are these the elements of self-government?”42 William Taft elaborated: “While they deal in high-sounding phrases concerning liberty and free government, they have no conception of what that means.”43 No longer a metaphor, the classification of colonial subjects as children became racialized reality, and it served to thwart not only the idea that the colonies should be independent, but also that they might ever be admitted into the Union as a fully fledged state. Jacob Schurman of the Philippine Commission wrote to McKinley. “There is no prospect of their assimilation in any period of time. They are distant from us by the diameter of the earth, the inhabitants are barbarous and they are populous, and if we conquer them we shall have to hold them as perpetual vassals.”44 Indeed, while the Treaty of Paris had declared that citizenship and statehood would be up to Congress, Congress in turn deferred the issue further. Both of the laws for Puerto Rico and the Philippines (the Foraker Act of 1900; the Philippine Bill of 1902) provided governments following the recommendations registered by officials on the ground, but they did not project an end point, nor did they say what the end would be.45 Thus, not only was statehood rejected for the time being, paternal control was to be extended indefinitely by the same token. Rather than slackened “as soon as possible,” as Senator Mitchill had claimed in regards to Louisiana, tutelary control might last forever. “There is a period in childhood,” summarized Elihu Root when arguing with anti-imperialists, “during

which the obligations of a guardian can not be performed without the power to control the child’s actions. The people of the Philippine Islands are still in political childhood.”46 In regards to Puerto Ricans, Root claimed the same. The Puerto Ricans were part of the lesser developed races—mired in a “rudimentary stage of political development”—and so neither independence nor statehood should be immediately forthcoming, if ever.47 The denial of statehood was a serious blow to some of the inhabitants of the Philippines and Puerto Rico. In the Philippines, a small group of elites in Manila (leaders of the Philippine Federal Party) had put statehood on their first political platform. These elites were distinct from the revolutionaries in the countryside: they quickly collaborated with the regime and the initial collaboration was in part motivated by the prospect of statehood.48 Yet the American officials, not to mention Congress, consistently brushed away their demands for incorporation. The recalcitrance became especially palpable to the elites when some of them traveled to the United States for the St. Louis Exposition. They were horrified at the racism of the exposition, and complained that, because the Philippine administration had decided to put the Igorots on display, the “higher class of Filipino life” was not shown to the American people. But they could do little else than complain. “The damage had been done,” wrote one of the Federalists after the exposition, “the impression had gone abroad that we are barbarians; that we eat dog and all sort of thing, and no matter how long we stay here we cannot convince the public to the contrary.” 49 The incident, along with the officials’ consistent recalcitrance, compelled these elites to accept their fate. Calls for statehood subsided.50 In Puerto Rico, demands for statehood had also been registered from the very outset of military occupation. The difference is that they were much more concerted and louder than in the Philippines. Juan Nieves summarized the attitude of much of the Puerto Rican populace in 1898: “Puerto Rico, annexed, living under the shelter of the model Republic, will be a prosperous, happy and respected people.” Nieves added that the very reason why the Puerto Ricans had been so quick to accept American occupation and turn their backs on Spain was because the people expected “to be constituted as a State, free, within the American Union.”51 In fact, many of the Puerto Rican elite had had some knowledge of American continental expansion and were hopeful that the “grand empire . . . which began in California, Texas, and Florida” (as one of their leaders put it) would similarly incorporate Puerto Rico.52 The Puerto Rican elite thus saw continuity between America’s continental past and its overseas present, and their political demands followed. They wanted statehood. What they did not count on, however, was the new race factor and the discontinuities it created. Not surprisingly, after Congress passed the Foraker Act in 1900 denying immediate statehood, they quickly became disillusioned with American rule. Some among them even began calling for national independence when they had never done so before—even during Spanish occupation.53 In short, while the ideological and institutional patterns of the Louisiana Purchase were indeed applied to and used for the new colonies, they were revalued and reworked. The political fate of the new colonies had been put into the hands of Congress, as had the fate of Louisiana, but with the perceived racial menace the outcome was very different. Statehood was not to happen and the political future of the “dependencies” was deferred. The temporal

distance between acquisition and full political incorporation was opened wide, precisely because it was left wide open.

THE LOGIC OF DEFERRAL AND REGIMES OF RULE The perceived racial menace was not the only point of discontinuity. The other had to do with the temporalities and regimes of rule across the new colonies. On the one hand, the sequence of annexation for all of the new colonies reproduced the sequence dictated by the Constitution and put to good use with the Louisiana Purchase: (1) treaty of cession, (2) Senate ratification, and (3) organic legislation by Congress. On the other hand, the time between these steps in the sequence differed markedly between the colonies (see table 10.1). Congressional action on Puerto Rico and the Philippines was relatively swift. After the Senate ratified the Treaty of Paris in 1899, it passed an organic act for Puerto Rico in 1900 and for the Philippines in 1902, both officially establishing civil government to replace military rule. By glaring contrast, Congress did not enact organic legislation for Guam until 1951. Even though Guam had been included in the Treaty of Paris along with Puerto Rico and the Philippines, Congress left it alone for more than fifty years. In the interim, the president exercised full authority and put Samoa into the hands of the U.S. Navy. Table 10.1. Dates of Significance: Overseas Colonies

As for Samoa, Congress was just as neglectful, if not more so. The treaty between the United States, Germany, and Britain was finalized in 1899 and the Senate ratified it in 1900. Thereafter the president put Samoa, like Guam, into the hands of the U.S. Navy. Yet Congress did not take legislative action on Samoa until 1929, and even then it did not pass an organic law. Instead it deferred civil government yet further, vesting all interim powers in the president as before: “Until Congress shall provide for the government of the islands, all civil, judicial, and military powers shall be vested in such person or persons and shall be exercised in such a manner as the President of the United States shall direct; and the President shall have the power to remove said officers and fill the vacancies so occasioned.”54 Thus, as with Guam until 1951, Samoa was managed by presidential powers “constrained neither by the Constitution nor by an organic act.”55 To this day, in fact, Congress has not provided organic legislation for American Samoa. The reasons for different congressional treatment toward the new colonies are multiple. But

a working list would surely include the different levels of public attention that the colonies received (in turn related to the context of annexation and certain features of the colonies themselves). For example, as table 10.2 shows, there were 551 articles on the Philippines in popular magazines between 1898 and 1906. For the same period there were only 139 articles on Puerto Rico, thirteen for Guam, and thirty-three for Samoa. The measures are rough, but they make sense. The Philippines was the largest and most populated. Admiral Dewey’s staged victory in Manila Bay during the Spanish-American War received dramatic attention from the press, as did the Philippine-American war and the racial character of the inhabitants. Puerto Rico received comparably less attention. Even though it was closer to the United States, this simply meant it was not as exotic (as compared with, say, the Igorots at the St. Louis Exposition). Nor did the Spanish-American War dramatically unfold in Puerto Rico, for the island was taken almost overnight, and there was no armed insurgency. As for Guam or Samoa, neither received as much attention as either Puerto Rico or the Philippines. Guam was much smaller, there was no battle with Spain at all (by the time the U.S. forces entered the port the war was already declared over), and, again, there was no armed insurgency. Samoa too was smaller and unknown, and it had been acquired through back-handed deals, not as a result of war. Table 10.2. Number of Articles on Overseas Colonies in Popular Magazines, 1898–1906

Source: Compiled from W. F. Poole and W. I. Fletcher, eds., Index to Periodical Literature (Boston: Houghton, 1882-1908). Note: Article qualifies if colony is named in the title.

Another explanation lies in colonial economics. On the one hand, Puerto Rico and the Philippines were a site of competition between domestic interests. The American sugar trust had had its sights on both (though less on the Philippines than on Puerto Rico), while beet sugar farmers in the South feared competition from imports. On the other hand, Guam and Samoa did not seize the interest of any domestic economic interests. They were acquired for their strategic value mostly, and the Navy was the first to arrive in both. This meant that domestic forces had little interest in the two places. It also implied a particular imperative for ruling them. The foremost concern was the establishment of naval power, and congressional

action would do little else than prove meddlesome. Not surprisingly, in 1908, President Roosevelt asked the secretary of the navy to make sure that no pressure was put upon Congress to take action on Samoa: “Do not urge any action on Congress. Things are going well there at present.”56 Whatever the reasons for differential treatment by the legislative branch at home, the upshot is that it contributed to significant differences within America’s imperial archipelago, not just between continental and overseas expansion. For one thing, it meant that colonial peoples have had very different kinds of political issues when confronting the U.S. government. As we have seen, the organic acts passed by Congress were disappointing for some Puerto Ricans and Filipinos. Statehood, citizenship, and the extension of full constitutional rights were explicitly denied. But for Guam and Samoa, the lack of congressional legislation in the first half of the century (and for Samoa, to this day), meant that these matters were not even raised in the first place. For Puerto Rico and the Philippines, imperial power worked by explicit rejection and denial. For Guam and Samoa, imperial power worked by neglect. This was not a matter of socalled children facing recalcitrance from strict parents; it was rather a matter of parents not even acknowledging that their children existed. The related difference is that the colonies faced different forms of colonial control and saw different kinds of political dynamics. Consider Puerto Rico and the Philippines together. After annexation, both colonies were run by the military. A military governor wielded full authority, much to the complaint of the inhabitants. But military rule only lasted for a few years because organic legislation replaced it with civilian rule. Puerto Rico and the Philippines were then given civil governments modeled after territorial governments at home, and these new civil governments in turn implied particular levels of political participation and certain kinds of political action. First, while American officials appointed by the president had ultimate control, at the very least the Puerto Rican and Filipino elite were allowed to hold elective positions in the local governments and in their respective legislative assemblies. The Americans in the executive councils could veto legislation, but the Puerto Ricans and Filipinos in the legislative assembly could at least initiate it, and the Americans in the executive council had to take the proposals into account in one way or another. Second, Puerto Ricans and Filipinos were also able to exert some amount of control over the local courts. In the Philippines, the Courts of First Instance were staffed by Filipinos, and the Filipino judges in turn used the courts to consolidate a network of local patronage and power—much to the American officials’ dismay. Finally, the elite in both colonies could contest colonialism within the institutional channels laid down, creatively deploying for novel purpose the minimal levels of power they had been granted. To be sure, the elite became adept at using the legislature to express their discontent. In 1909, the Puerto Rican House of Delegates refused to pass an appropriations bill as an act of protest against the control over the government exercised by American officials. A year later, the Philippine Assembly did the very same thing, also as an act of protest.57 The contrasts with Guam and Samoa are notable. In the absence of organic legislation, both were subject to presidential authority. In turn, the President, by executive order, put both colonies in the hands of naval commanders. The naval bases became centers of civil

administration, and the result were regimes run by one man and one man alone. In both Guam and Samoa, the naval commandant cum colonial governor served as the executive, legislative, and judicial branch at once. This was not simply a mixing of state functions; it was a consolidation of them into the same man. And the commandants did not bother to set up elections for local posts. In Guam, the naval commandant enlisted native “commissioners” to help administer the different districts of the island, but he appointed and ousted the commissioners at will. In Samoa, the first commandant B. F. Tilly modeled his administration after British “indirect rule” in Fiji, which meant that he appointed a Samoan chief to each of the subdivisions of the islands. Thus, as in Guam, the commandant maintained the power of appointment and control.58 The early commanders in Guam and Samoa used their power with little constraint, ruling “by means of executive orders, verbal orders, and proclamations.” 59 The commanders in Guam, for instance, restricted religious practice, forbidding “public celebrations of feast days of the patron saints of villages” and restricting such celebrations to inside “the walls of the church.”60 They also prohibited the exportation of foodstuffs and issued an order declaring that everyone should have “at least 12 hens, 1 cock, and 1 sow” and plant fruit and vegetables sufficient to provide for one family.61 In addition, commanders in both Guam and Samoa forbade the sale of land on the part of the natives without express consent from naval authority. The navy in turn bought up land for itself.62 Finally, commanders in Samoa levied a customs duty on imports, which was paid ultimately by Samoans who bought goods at local stores. They also levied a tax on copra, the only industry of the island. The arbitrary control exercised by the commanders did not go without hidden scripts of resistance. In 1910, the naval commandant in Guam discovered an anonymous handbill that had been circulating among the Chamorros. It read in part: Salam! Salam! I’m the Governor of Guam, I’m glorious and great, I’m a pampered potentate, So I am. I run things as a I please Get down on your knees, I’m the ruler of the tightest little island in the seas, That’s me. Those who do not like me, I shut up or send away, I’m a wonder and I know it, Of the thirty-third degree. Behold! Behold! I’m fearless and I’m bold. I’m the government, the law;

Kings refer to me with awe, So I’m told.63 But if arbitrary rule was displeasing to some, in response little was done. A petition in 1901 from the inhabitants of Guam declared loyalty to the United States but also insisted that Congress establish “a permanent government.” It added that the “military government at best is distasteful and highly repugnant.” 64 The petition had no effect, and Congress remained recalcitrant. Petitions to Congress later emerged in 1917, 1925, 1929, 1933, 1947, and 1950, but none of them received attention. In Samoa during the 1920s, more direct resistance emerged. Samoan chiefs had been complaining about the copra tax and had been wondering where the money went. The people, reported one officer, were concerned “that the Government was stealing the money of the Samoan people.”65 Complaints about other policies, such as a ban on marriage between Samoans and whites, also aroused complaint. These grievances culminated in an anti-navy movement known as the Mau rebellion. The rebellion, which had parallels in neighboring German Samoa, ended up in a truce, but the causes of the rebellion remained. The Mau had not only called for an end to certain policies by the naval commanders, they had also asked that Congress establish a civil government and grant the islanders citizenship.66 The hitch is that the tragic treatment of Guam and Samoa does not so much mark a deviation from America’s institutional principles or ideals as it does a manifestation of their inherent tensions and contradictions. After all, by not formulating organic legislation for Guam and Samoa, Congress was not acting outside its historically proscribed power. The precedents first laid down by the Louisiana Purchase, and implicitly or explicitly applied overseas, meant that everything was left to the plenary power of Congress. In turn, Congress could do whatever it wished, including nothing at all. Elihu Root pinpointed the matter. In 1907, he laid down the pattern for congressional neglect by urging the Navy to ensure that organic legislation was not passed for Guam. “If left alone Congress will probably do nothing about providing a form of government for the Islands,” he wrote to the secretary of the Navy, “the inactivity of Congress must be deemed to be an approval of the continuance of the existing government. It is very desirable that this should be so.”67 Root had thus applied the principles laid down by the Louisiana Purchase, but he learned how to manipulate them in the service of America’s global power. The result was an overseas empire contemporaneously differentiated within itself. But the other result was an overseas empire remarkably continuous with America’s continental empire, yet tragically distinct.

NOTES 1 Theodore Roosevelt and Henry Cabot Lodge, Addresses and Presidential Messages of Theodore Roosevelt, 1902-1904 (New York: G. P. Putnam’s Sons, repr. Kraus, 1904). 2 David R. Francis, The Universal Exposition of 1904 (St. Louis: Louisiana Purchase Company, 1913), cover page and 254-99.

3 Ibid., 531. 4 As quoted in Paul Kramer, “Making Concessions: Race and Empire Revisited at the Philippine Exposition, St. Louis, 1901-1905,” Radical History Review 73 (1999): 91 5 Ibid., 97. 6 For lack of space I will not be able to discuss the particular forms of rule within the Philippines itself: the United States constructed a colony within a colony by ruling the socalled savage tribes in the highlands (like the Igorots) and the Islamic Moro populations in the southern part of the archipelago. Good analyses of these can be found in some of the essays in Julian Go and Anne Foster, eds., The American Colonial State in the Philippines: Global Perspectives (Durham, N.C.: Duke University Press, 2003). 7 I take the term “imperial archipelago” from Lanny Thompson, “Representation and Rule in the Imperial Archipelago,” American Studies Asia 1 (2002): 3-39. 8 The population in the Philippines was around seven million; Puerto Rico close to one million; American Samoa, seven thousand; Guam about nine thousand. 9 Quoted in Whitney T. Perkins, Denial of Empire: The United States and Its Dependencies (Leyden: A.W. Sythoff, 1962), 171. 10 United States Navy Department, Annual Reports of the Navy Department for the Year 1900. Report of the Secretary of the Navy. Miscellaneous Reports., United States House of Representatives. Document No. 3, 56th Congress, 2d sess. (Washington, D.C.: Government Printing Office, 1900), 101. 11 Levinson and Sparrow, “Introduction” (this volume). 12 Arnold H. Leibowitz, Defining Status: A Comprehensive Analysis of United States Territorial Relations (Norwell, Mass.: Nijhoff, 1989), 23. 13 United States War Department, Annual Reports of the War Department for the Fiscal Year Ended June 30, 1899. Report of the Secretary of War. Miscellaneous Reports. (Washington, D.C.: Government Printing Office, 1899), 24. 14 Roosevelt and Cabot Lodge, Addresses and Presidential Messages. 15 Albert J. Beveridge, “The Development of a Colonial Policy for the United States,” Annals of the American Academy of Political and Social Science 30 (1907): 3-15. 16 Ibid. 17 William F. Willoughby, Territories and Dependencies of the United States (New York:

The Century Co., 1905), 40, 51. 18 United States Philippine Commission, Report of the Philippine Commission to the President (January 31, 1900), 2 vols. (Washington, D.C.: Government Printing Office, 1900), 108-9. 19 Ibid., 109. The commissioners of course modified the Louisiana scheme, especially by inserting into it an elective legislature. They also rejected the model for the “wild tribes” in the south and highlands, who were put in the hands of a special department. 20 Henry K. Carroll, Report on the Island of Porto Rico; Its Population, Civil Government, Commerce, Industries, Productions, Roads, Tariff, and Currency, with Recommendations by Henry K. Carroll . . . (Washington, D.C.: Government Printing Office, 1899), 58. 21 United States Major-General Commanding the Army, Annual Report of the U.S. MajorGeneral Commanding the Army. 1899. In Three Parts. (Washington, D.C.: Government Printing Office, 1899), 322. 22 United States War Department, Annual Reports of the War Department for the Fiscal Year Ended June 30, 1899. Report of the Secretary of War. Miscellaneous Reports, 28. 23 Willoughby, Territories, 51. 24 Ibid., 7-8. 25 Justice White justified the distinction between incorporated and unincorporated by “the precedents of the Louisiana and Florida territories that were, he said, dependencies initially and were later formally incorporated into the United States” (Arnold H. Leibowitz, Defining Status, 23). For more on the Insular Cases and “unincorporation” see James Edward Kerr, The Insular Cases: The Role of the Judiciary in American Expansionism (Port Washington, N.Y: Kennikat Press, 1982), Sanford Levinson, “Installing the Insular Cases into the Canon of Constitutional Law,” in Foreign in a Domestic Sense, ed. Christina Duffy Burnett and Burke Marshall (Durham, N.C.: Duke University Press, 2001), 121-39, and Efrén Rivera Ramos, “Deconstructing Colonialism: The ‘Unincorporated Territory’ as a Category of Domination,” in ibid., 104-17. 26 For the first time, “in a treaty acquiring territory for the United States, there was no promise of citizenship . . . [nor any] promise, actual or implied, of statehood. The United States thereby acquired not ‘territories’ but possessions or ‘dependencies’ and became, in that sense, an ‘imperial’ power” (Julius William Pratt, America’s Colonial Experiment; How the United States Gained, Governed, and In Part Gave Away a Colonial Empire (New York: PrenticeHall, 1950), 68). 27 Quoted in Kerr, The Insular Cases, 3.

28 As quoted in Stuart Creighton Miller, “Benevolent Assimilation”: The American Conquest of the Philippines, 1899-1903 (New Haven, Conn.: Yale University Press, 1982), 157. 29 Willoughby, Territories, 5. 30 Quoted from Mark Weiner, “Teutonic Constitutionalism,” in Burnett and Marshall, Domestic in a Foreign Sense, 71. 31 All quotes from Perkins, Denial of Empire: The United States and Its Dependencies., 2021. 32 See, for instance, George W. Davis, “Porto Rico—Its Present and Future” in Report of the Twenty-Seventh Annual Meeting of the Lake Mohonk Conference of Friends of the Indian and Other Dependent Peoples, October 20th, 21st and 22nd, 1909, Charles F. Meserve, ed. 149-59 (Lake Mohonk, [N.Y.]: Lake Mohonk Conference of Friends of the Indian and Other Dependent Peoples, 1909). 33 Margherita Arlina Hamm, Porto Rico and the West Indies (London and New York: F. Tennyson Neely, 1899), 64, 66-67. 34 Arthur Stanley Riggs, “A Letter from the Philippines,” Atlantic Monthly 92 (1903): 256. 35 James A. LeRoy, “Race Prejudice in the Philippines,” Atlantic Monthly 90 (1902): 100112. On discursive equations made between Native Americans and Filipinos, see Walter Williams, “United States Indian Policy and the Debate over Philippine Annexation: Implications for the Origins of American Imperialism,” Journal of American History 66, no. 4 (1980): 810-31. 36 Matthew Frye Jacobson, Barbarian Virtues. The United States Encounters Foreign Peoples at Home and Abroad (New York: Hill and Wang, 2000), chap. 4; see also Thomas F. Gossett, Race: The History of an Idea in America (New York: Oxford University Press, 1997). 37 See especially the classificatory schemes of American anthropology at the time, as discussed by George W. Stocking, Jr., Race, Culture, and Evolution (Chicago: University of Chicago Press, 1968). 38 “Teutonic Constitutionalism” in Duffy and Burnett, Foreign in a Domestic Sense. 39 Gossett, Race: The History of an Idea in America, 154 40 United States Navy Department, Annual Reports of the Navy Department for the Year 1904. Report of the Secretary of the Navy. Miscellaneous Reports. (Washington, D.C.: Government Printing Office, 1904), 99-100.

41 Guy Henry to President McKinley, January 23, 1899 (McKinley Papers, reel 4, ser. 1, Manuscript Division, Library of Congress). 42 Quoted in Warren Zimmermann, First Great Triumph (New York: Farrar, Straus & Giroux, 2002), 347. 43 Taft to E. Root, August. 18, 1900 (Papers of Elihu Root, folder “T,” Manuscript Division, Library of Congress). For more on the childhood metaphor and meaning, see Julian Go, “‘Racism’ and Colonialism: Meanings of Difference and Ruling Practices in America’s Pacific Empire,” Qualitative Sociology, forthcoming. 44 Jacob Schurman to McKinley, August. 12, 1898 (McKinley Papers, ser. 1, reel 4). 45 The Philippine Bill of 1902 was “an act to temporarily provide for the administration of the affairs of civil government in the Philippine Islands” (U.S. Statues at Large, 1902, vol. 32, 691); while the Foraker Act was also “an act to temporarily provide revenues and a civil government” (U.S. Statutes at Large, 1900, vol. 31, 77). 46 Root to Lowell, February 11, 1904 (United States National Archives, Record Group 350, entry 364-62). 47 United States War Department, Annual Reports of the War Department for the Fiscal Year Ended June 30, 1899. Report of the Secretary of War. Miscellaneous Reports, 26. 48 Federal Party of the Philippine Islands, Manifesto of the Federal Party (Manila: Tip. ‘La Democracia,’ 1905). An excellent discussion of this group can be found in Ruby R. Paredes, “The Partido Federal, 1900-1907: Political Collaboration in Colonial Manila” (PhD diss., University of Michigan, 1990). 49 Quoted in Kramer, “Making Concessions,” 104. 50 Much later, in 1946, the United States granted independence to the Philippines. This fact does not undermine the racial logic of initial acquisition and deferral. Because the Filipinos were deemed “inferior” and a racial menace to the American body politic, they were deemed incapable of full statehood. Immediate independence was ruled out too on the same grounds. If the Filipinos were incapable of self-government, they needed U.S. control. But independence could be granted later, not in spite of but because of the same racialized logic. While Filipinos were inferior, they could eventually “grow up” if subjected to a period of U.S. control. This was a common line of racial reasoning throughout the imperial world at the time. See Julian Go, “‘Racism’ and Colonialism: Meanings of Difference and Ruling Practices in America’s Pacific Empire,” Qualitative Sociology 27, no. 1 (2004): 35-58; see also, for British thought on India, which followed the same kind of reasoning, Uday Mehta, Liberalism and Empire (Chicago: University of Chicago Press, 1999).

51 Juan Nieves, La Anexion de Puerto Rico (Ponce, PR.: Tipografia del “Listin Comercial,” 1898), 9-10. 52 Angel Rivero Méndez, Crónica de la Guerra Hispano Americana en Puerto Rico (Madrid, Spain: Sucesores de Rivadenyera (S.A.) Artes Gráficas, 1922), 411. See also “Al Pueblo de Puerto Rico: Manifesto” in Eugenio Fernández Méndez, ed., Antología del Pensamiento Puertorriqueño (1900-1970) (P.R.: Editorial Universitaria, University of Puerto Rico, 1975), 1:46. 53 I discuss these matters in detail elsewhere (Julian Go, Transcultured States: Elite Political Culture in Puerto Rico and the Philippines during U.S. Rule (unpublished manuscript). 54 Public Resolution No. 89 of the Seventieth Congress, February 20, 1929, in American Samoan Commission, The American Samoan Commission Report (Washington, D.C.: Government Printing Office, 1931), 1. 55 Perkins, Denial of Empire, 274. 56 Theodore Roosevelt, The Letters of Theodore Roosevelt, Elting Elmore Morison, ed. (Cambridge, Mass.: Harvard University Press, 1951), 6:989. 57 I cover some of these similarities, as well as some more subtle differences, in “Chains of Empire, Projects of State: Political Education and U.S. Colonial Rule in Puerto Rico and the Philippines,” Comparative Studies in Society and History 42, no. 2 (2000): 333-62. 58 J. A. C. Gray, Amerika Samoa: A History of American Samoa and its United States Naval Administration (Annapolis, Md.: United States Naval Institute, 1960), 125. 59 Paul Carano and Pedro C. Sanchez, A Complete History of Guam (Tokyo: Charles E. Tuttle Company, 1964), 185. 60 Ibid, 34. 61 United States Navy Department, Brief Extracts from Publications, Memoranda Furnished, Congress, General Orders and Annual Reports from 1901-1904, Relative to the Island of Guam, (Washington, D.C.: Goverment Printing Office, 1905), 34-35. 62 Felix Keesing, “Samoa: Islands of Conflict,” Foreign Policy Reports 9 (1934): 294-304, 131. 63 Anne Perez Hattori, “Righting Civil Wrongs: The Guam Congress Walkout of 1949,” ISLA: A Journal of Micronesian Studies 3 (1995): 1-27, 4. 64 Perez Hattori, “Righting Civil Wrongs,” 5.

65 Quoted in David Chappell, “The Forgotten Mau: Anti-Navy Protest in American Samoa, 1920-1935,” Pacific Historical Review 69 (2000): 217-60, 233. 66 The rebellion did compel Congress to act, but in a minimal way. Congress finally ratified the treaty of cession that had been made over thirty years earlier, yet deferred any further action. The treaty simply called for an investigative commission to make recommendations for future legislation. The commission later recommended that Congress pass an organic act for Samoa, but Congress declined the invitation. This pattern was repeated over and over again for the next decades (American Samoan Commission, The American Samoan Commission Report; Perkins, Denial of Empire, 28-7. 67 Philip Jessup, Elihu Root (New York: Dodd, Mead & Company, 1938), 1:349.

11 Empires External and Internal: Territories, Government Lands, and Federalism in the United States Bartholomew H. Sparrow The United States has always been more, and less, than the aggregate of its component states. “More” because the United States has always included territories, territories both continental and insular. To speak of the United States as a federal nation-state—the sovereignty of the states coexisting with that of the U.S. government, each with its own sphere of jurisdiction1— neglects the U.S. government’s continued exercise of authority over the territories. This is “empire” in the sense that the domain of political authority exceeds that of representative government. The U.S. territories are (and have been) subject to the sovereignty of the U.S. government, despite the fact that territorial inhabitants (who are all explicitly designated as “U.S. citizens,” except for American Samoans), go (and have gone) without effective representation in the legislative and executive, and, therefore, judicial branches. The present-day territories of the United States—Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Marianas—thus occupy a political limbo, one both similar to and distinct from the status of the earlier continental territories. Indeed, given the extent of its overseas territories, the United States is now the largest territorial power in the world (in terms of square miles of areas under possession). 2 At the same time, the United States is less than its component states as the separate states have only partial or no claim on the 29 percent of the total land area of the fifty states held by various U.S. government agencies: the Bureau of Land Management has 266.3 million acres; the U.S. Forest Service has 201 million acres; the Fish and Wildlife Service controls 83.4 million acres; and the National Park Service has 74.2 million acres.3 The holdings of the “federal four” and those of the other U.S. departments and agencies also amount to an empire of sorts insofar as these areas are subject to the full or partial sovereignty of the U.S. Congress, executive branch, and the courts, rather than to that of the states whose boundaries nominally enclose them.4

Despite the continued existence of the territories and the U.S. government lands, students of federalism and the U.S. political system chronically assume the United States to be a nation of states, operating under federal principles and constituted wholly by the separate states.5 How, then, did the United States come to encompass these persons and areas outside the sphere of its federal republic, given that the U.S. Constitution contains only limited provisions for areas to be under the control of the U.S. federal government?6 This chapter explores the discrepancy between political writings on the U.S. political system and the existence of these two “empires”—the territories and the government lands.7 The first part of the chapter reviews the empirical reality and development of the U.S. territorial system and the U.S. government’s land holdings within the fifty states. The second part addresses how the United States’ sovereignty exercised in the territories and on government lands can be reconciled with federalism. And the third part returns to a consideration of the role played by the Louisiana Purchase in the emergence of these nonstate areas within the United States.

EMPIRES EXTERNAL AND INTERNAL The United States is not a nation of states, and never has been. Even at the founding, the United States included the trans-Appalachian west, land ceded by Great Britain under the 1783 Treaty of Paris and claimed by Virginia, North Carolina, Connecticut, New York, and Georgia. But these states surrendered their claims on the western lands in order that Maryland and other states that had no claims on the trans-Appalachian west would ratify the Articles of Confederation. And at present, the United States includes the Caribbean and Pacific territories, the District of Columbia, and, of course, the fifty states. Between the founding and the present, moreover, the United States always had territories, from Ohio and the Northwest Territory to Hawai’i and Alaska, territories until 1959. Three-quarters of the area of the fifty states was at one point under territorial government of some kind. The political development of the continental territories largely followed the legacy of the Northwest Ordinance, passed under the Articles of Confederation. 8 For one, the territories followed a sequential process of development: a district phase; a second phase of territorial government (with 5,000 eligible residents); and a third phase in preparation for statehood (with 60,000 eligible residents, a written constitution, and republican government). Congress had to approve of each transition in the sequence. Second, the states created out of the Northwest Territory, the 1846 British Cession, the 1848 Mexican Cession, and the other geographic acquisitions were explicitly admitted on an “equal footing” basis (per Section 13 and Section 14 Art. V of the Northwest Ordinance).9 Third, the organic acts of the continental territories all specified that territorial officials had to swear to uphold the U.S. Constitution. Congress further guaranteed the citizens of the Northwest Territories and the later territories the rights of religion, contract, speech, jury trial, and other protections—consistent with Articles I, II, and III of the Northwest Ordinance. The citizens of the continental territories were citizens of the United States, then, although not the citizens of any particular state (see the Introduction to this volume).

These were states “in embryo,” under the tutelage of the U.S. government as John Marshall and others saw it, and “never regarded as mere possessions.” 10 The U.S. government’s authority over the territories was always moderated by the assumption that the territories would become states. With the acquisition of the territories in the Caribbean and Pacific, however, the assumption of eventual statehood—of territories being in a condition of pupilage and qualifying for statehood in due course—no longer obtained. Why, then, the divergence of the United States’ insular territories from the history of the continental territories and the Northwest Ordinance model? And why the distinction between Hawaii and Alaska (noncontiguous territories both), on the one hand, and the Philippines, Puerto Rico, Guam, Samoa, and the Virgin Islands, on the other? The most proximate answer is the Supreme Court’s rulings in the Insular Cases, and most prominently, in Downes v. Bidwell, where a three-person concurring opinion distinguished between “incorporated territories” and “unincorporated territories.”11 Although several of the thirty-five cases12 were decided by 5-4 votes (and eight of the first nine cases in 1901), the rulings in the later cases and the last of the Insular Cases, Balzac v. Porto Rico,13 were unanimous. They proposed and then affirmed Justice Edward D. White’s doctrine of incorporated versus unincorporated territories, one first articulated in White’s concurring opinion in Downes v. Bidwell. White’s pragmatic doctrine, that Congress had to incorporate the territories into the Union for the Constitution to fully apply, won out over Justice Henry Brown’s “extension” doctrine and the strict constructionism of Justice John Marshall Harlan and other dissenters (i.e., that the Constitution did apply fully in the new island territories).14 The Insular Cases upended the precedent of the Northwest Ordinance. Behind the Insular Cases, though, was the matter of race, where both the Northwest Ordinance and the Territories Clause (Article 4, Section 3, Clause 2) make important assumptions. One was of (effectively) empty land, hence the fact that there is no mention of territorial inhabitants—and the Northwest Ordinance treated the Indian population separately —and there are no provisions in the Ordinance or the Constitution for the naturalization or assimilation of territorial inhabitants.15 Nor were there any provisions for indigenous persons in subsequent legislation for the establishment of territorial governments and admission of new states. The other assumption of the Territories Clause is that it cannot but refer to the territories and property of the United States as understood by the framers. Although Thomas Jefferson and others envisioned the trans-Mississippi west also becoming politically developed, they did not know what would become of that area. They thought that the areas further west would not necessarily be part of the United States. They also feared that new nations could well spring up west of Mississippi, ones with foreign allies or attachments.16 This does not mean that the Constitution, whether the Territories Clause, Treaty Clause, or War Powers Clause, prohibited the unforeseen addition of territory—only that such an addition was unanticipated at the founding.

Not only were Puerto Rico and the Philippines, especially, far from uninhabited, but the McKinley, Roosevelt, and Taft administrations, Congress, and the American people were not inclined to accept these non-English-speaking, non-Protestant, and non-white inhabitants as citizens of fellow states or states-to-be. Public and expert opinion of the time, too, generally opposed political equality for Puerto Rico and the Philippines (and Guam).17 In fact, this would also be the later position of most Americans toward Eastern Samoa, which the United States annexed as a territory in 1901, the Virgin Islands, which the United States bought from Denmark in 1917, and the Northern Marianas, which became a commonwealth and U.S. territory in 1976.18 Hawai’i and Alaska thus stand as exceptions. Hawai’i, however, was dominated politically by the white haole ruling class (which seized control over the islands in the coup of 1887 and then sought annexation as a territory in 1898, after its unsuccessful attempt to annex in 1893), despite a majority of persons of Hawai’ian, Japanese, Chinese, and other Asian descent.19 Given Hawai’i’s white ruling minority and its importance with respect to trade and control of the Pacific, Congress could accept Hawai’i as an incorporated territory and, only much later, a state. Alaska, for its part, had a minuscule indigenous population, like the territories of the American west, that made it amenable to control by white Americans.20 The geographic expansion of the United States was also the cause of the U.S. government possessing 662.2 million acres of land lying within the boundaries of the several states. Ninety percent of this public land never left the possession of the U.S. government.21 In other words, the government’s ownership dates since the time the United States acquired the new regions by means of the Louisiana Purchase, the Mexican Cession, and other treaties. And once these new regions came under U.S. sovereignty, Congress could dispose of them as it saw fit. As Article IV of the Northwest Ordinance stated: “The legislatures of those districts [formed out of the Northwest Territory], or new States, shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find it necessary for securing the title in such soil to the bona-fide purchasers. No tax shall be imposed on lands the property of the United States; and in no case shall nonresident proprietors be taxed higher than residents” (emphasis added). This or similar wording—all to the effect that the U.S. government was to retain control over the disposal of land, that is, the soil—would be repeated verbatim in subsequent legislation. (Exceptions to the U.S. government’s retention of land not already disposed were Vermont and Kentucky, neither of which had land within its boundaries withheld, and Texas, which retained all its public lands by the terms of its admission into the Union. But for those states added after the original thirteen, from Tennessee onward, the U.S. government never relinquished its land that was not already allotted or assigned.)22 The land retained by the U.S. government prior to its disposal was the public domain. And through the eighteenth, nineteenth, and the early twentieth centuries, Congress and the U.S. government sold or transferred its land to private buyers, military veterans, land companies, the railroads, loggers, homesteaders, ranchers, mining companies, Indians, and others. By the late nineteenth century, the government had disposed of the most economically productive land.

The land that remained was thus typically the less useful land—since private individuals or commercial associations had not already withdrawn the land from the public domain—and typically remote from cities and transportation links, arid, higher in elevation, and less fertile. It was also subject to timber theft and overgrazing.23 Through a series of separate legislative acts, various U.S. presidents and Congresses incrementally transformed the public domain into land to be managed and held by different U.S. government agencies: In 1872 Congress reserved Yellowstone National Park (to be administered by the War Department for the first few years). Twenty years later, the General Revision Act of 1891 contained a “Forest Reservation” provision that authorized the president to “reserve . . . any part of the public lands” as public reservations. Five more national parks were set up by 1900 and millions of more acres set aside. Separately, American presidents have been able to proclaim tens of millions of acres as “national monuments” under the authority of the 1906 Antiquities Act. Then, in 1916, Congress established the National Park Service for the “enjoyment” of the nation’s parks for “unimpaired” future use. At present, the National Park Service controls more than 378 separate areas and 77 million acres, 50 million in Alaska. The Forest Reserve Act of 1891, the organic act of the U.S. Forest Service (USFS), authorized the president to set apart and protect forests as forest reserves. Fifty million acres were withdrawn by 1901. President Theodore Roosevelt and Gifford Pinchot (who Roosevelt had appointed as the head of the Department of Agriculture’s Division of Forestry) got Congress to reserve another 150 million acres from the public domain, and in 1905 they succeeded in transferring the national forests from the U.S. Department of Interior to the Department of Agriculture. The Weeks Forest Purchase Act of 1911 proceeded to authorize Congress to withdraw land for watershed protection and forest conservation. Much later, the National Forest Management Act of 1976 reformed the USFS by requiring new comprehensive planning processes and by relocating jurisdiction for forest policies from the appropriations committees to the authorization committees (less prone to control by the timber and regional interests). The USFS is now in the possession of 192 million acres, including 22 million acres in Alaska.24 In 1934, the Taylor Grazing Act withdrew land formerly available for homesteads in order to protect it from overgrazing. The Grazing Act as amended in 1936 granted permits to ranchers, set up fifty grazing districts totaling over 142 million acres, and established the U.S. Grazing Service (which would be replaced by the Bureau of Land Management, BLM, in 1946 when Congress merged the Grazing Service with the General Land Office). An executive order by President Franklin Roosevelt withdrew the remaining half of the government lands that were not yet appropriated or reserved. The BLM received its current legislative mandate in the Federal Land Policy and Management Act of 1976, which formally established the agency’s mixed-use logic. (Both the USFS and the BLM reforms were driven by the Public Land Law Review Commission Report of 1970.) The BLM possesses 264 million acres, 87 million of which are in Alaska. The Fish and Wildlife Service was created in 1940, when Congress merged the Bureau of

Fisheries and the Biological Survey into the Fish and Wildlife Service (FWS). In 1966 Congress passed the National Wildlife Refuge System Administrative Act, which set guidelines on the refuge system and held that usage had to be compatible with refuge purposes. In 1973 the FWS (together with the National Marine Fisheries Service) assumed responsibility for the Endangered Species Act. Not until 1997, with the passage of the National Wildlife Refuge System Improvement Act, did the FWS get its first organic act, which amended and clarified the 1966 law. The FWS holds 83.4 million acres. In 1964 Congress passed the Wilderness Act. The Wilderness Act withdrew land from USFS, FWS, and National Parks. The Wilderness Act prohibited roads and development in these lands, and put severe restrictions on visitations and usage. The wilderness areas come under the management of the original U.S. government agencies, though—75 percent by the Park Service and the USFS, 20 percent by the FWS, and 5 percent by the BLM. The national wilderness preservation system currently has 104 million acres. Other agencies possess another 10.8 million acres. Some U.S. lands never required additional legislation, of course, such as that belonging to the Department of Defense, which possesses 26.0 million acres.25 Not surprisingly, the distribution of the U.S. government’s land ownership is highly imbalanced among the states. Alaska contains over one-third of the total government land (37 percent), while the U.S. government holds about two-thirds of the land within the boundaries of Alaska (237 million acres). Eleven other western states, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming, contain another half of the total area of U.S. government land. Meanwhile, the other thirty-eight states average about 5 percent of the land within their boundaries belonging to the U.S. government. Connecticut and Iowa each have less than one-half of one percent of their state lands (0.44 percent) in the possession of U.S. agencies. Despite the U.S. government’s extensive ownership and Congress’s plenary power, the separate states nonetheless exercise considerable authority over U.S. lands. This authority is most evident with state governments’ right to levy severance taxes on the resources extracted from the government lands within their state boundaries.26 By virtue of the National Forest Revenues Act of 1908, all states but Alaska receive 25 percent of gross timber revenues and, according to the terms of the Mineral Leasing Act of 1920, get 50 percent of gross revenues from those minerals extracted. All states but Alaska, too, receive 50 percent of oil and gas revenues from the National Petroleum Reserve, and 12.5 percent of district grazing revenues from BLM lands. In addition, the states get 5 percent of revenues from the actual sale of U.S. government land. Alaska, however, gets 90 percent of gross revenues from oil, gas, coal, tar sands, sulfur, potash, phosphorous, and other minerals.27 (Little surprise, then, at the enthusiasm among Alaskan public officials for oil drilling in the Arctic National Wildlife Refuge.) The states in most cases also have sovereignty over U.S. government land with respect to criminal jurisdiction. In addition, the states receive income from the sale of hunting and fishing

licenses, no matter if that activity is exclusively conducted on BLM, USFS, or other government lands. (In fact, the Park Service has incorporated “non-conflicting” state fishing laws within its own regulations for fishing in the National Parks.) The states further benefit from the subsidies that the BLM offers ranchers on grazing lands and from those that the USFS offers timber harvesters on below-cost contract terms (given that the states still receive their share of the gross revenues). All the same, the states do not receive the fees (or any portion of the fees) collected for entry into the national parks and monuments, national forests, or wilderness areas that exist within their boundaries. Nor do park, forest service, scientific, or other personnel residing on public lands pay local property taxes, even should their children attend nearby schools. Similarly, military personnel affiliated with a particular military base, arsenal, shipyard, or other facility are typically assigned housing and pay no taxes or rent on that housing. Should they take up the option of living off base, they have to pay taxes on their housing as well as taxes on other offbase purchases (as would those living on-base).28 The result of these various regimes obtaining among U.S. government agencies over the lands under their management is that state boundaries—at least as marked on maps and as typically conceived—are misleading and, in many instances, practically a fiction. They do not reflect the actual dimensions of state sovereignty. Thus can Congress and the Department of Energy decide to dispose of nuclear waste within the boundaries of the State of Nevada, for instance, political protests and state lawsuits notwithstanding.29 Or, the Department of Defense may install a series of missile silos or close bases within a state, all without leave from the state in question. Then too, there is the enforcement of federal law on endangered species, no matter the local or regional interests at stake. Such practices may not seem so different from the U.S. Navy’s former use of Vieques as a bombing raid, despite the dangers to the Puerto Rican residents on the islands and their longstanding protests. Nor do they seem so different from Congress’s authority to suspend the legislated minimum-wage laws in the Commonwealth of the Northern Marianas Islands— while still allowing “Made in the USA” on the clothing labels. Suggestive of the close relationship of the public lands and insular territories is Congress’s single committees on “Interior and Insular Affairs” in the House (from 1948 to 1992) and Senate (1951 to 1977).30 Yet these government lands lying within the fifty states constitute an odd sort of “empire”— if an empire at all. With few inhabitants in these areas except for resident resource managers, scientists, and other specialized personnel, handfuls of private and company lessees, and military personnel, the empire doesn’t have a population of “subjects” to speak of. Neither were there many former inhabitants in these areas, with the possible exception of some abandoned mining sites. Furthermore, this land is not wholly under the control of the U.S. government. Much of the government land, especially the BLM lands and USFS lands, has an explicit “mixed use” rationale—albeit a negotiated settlement, one that depends on the presidential administration and political climate. This land thus occupies a strange political middle ground amid the

prerogatives of the national government, the interests of the states, and private purposes.31 Meanwhile, other landholders, too, such as the Park Service, have to meet the needs of a variety of users. So there can be hunting or fishing or motorized vehicles in the national parks, just as there may be camping or oil drilling on the BLM’s rangelands. Also the several agencies and their holdings vary in their public images. The U.S. Forest Service has been viewed much more favorably than the Bureau of Land Management, for instance, and where both the land belonging to the BLM and the USFS has been considered for devolution to the states or privatization (with the Sagebrush Rebellion and Wise Use movement). In contrast, neither the National Park lands nor the Department of Defense lands have been seriously considered for devolution or wholesale privatization (although the National Park Service under the current Bush administration has allowed natural gas drilling on the Padre Island National Seashore). Then, too, there are evolving standards and guidelines for oil and gas drilling, road building, timber harvesting, increases in grazing fees, new regulations with respect to use by snowmobiles, all-terrain vehicles, personal water craft, and other motorized vehicles, and the like. With a new Congress, a change in president, a single court decision, or large-scale alteration in the political environment (the end of the Cold War, new technologies, alternate energy sources), federal lands can quickly acquire new uses or have familiar functions removed. In short, the variety and varying purposes of the government lands make these lands more a congeries of “domains” or “fiefdoms,” each with different degrees of national versus state control. This is not unlike the condition of the insular territories, where each territory has its own distinct governing regime and balance struck between local political autonomy and policy making from Washington. This is not simply the difference between “commonwealth” (Puerto Rico, the Northern Marianas) and “unincorporated territory” (Guam, American Samoa, the U.S. Virgin Islands), but the result of different histories, different economic and material resources, and different cultures. The U.S. government exercises sovereignty over two nonstate areas: its territories—areas that initially included much of the North American continent, and later extended overseas into the eastern Caribbean and southern Pacific; and, derived from, first, the public domain and, later, government lands—areas that the U.S. government for the most part never relinquished and that never went into the possession of the states whose boundaries nominally enclose these areas. Instead, the conditions under which the new states were admitted into the Union specified that the states relinquish control over their soil not otherwise disposed. Congress and the executive then proceeded to reserve these lands for particular ends: the preservation of areas of great natural beauty; archeological sites; historical landmarks; the cultivation and preservation of forests, sheep and cattle grazing; the retention of breeding grounds and habitats of wildlife; and other purposes. Remarkably, Congress’s authority in both of these spheres is rooted in the same constitutional clause: Article IV, Section 3, Clause 2. Only students of American expansion call it the “Territories Clause,” and students of the public domain and government lands refer

to it as the “Property Clause.”

RETHINKING FEDERALISM The reality of the United States’ possessions within and without the several states, however, has not been integrated into thinking about the American political system. Rather, the consistent premise has been that the United States has a federal system, a national polity constituted in its entirety by its component states. Writers on the U.S. political system ignore how the existence of the territories and U.S. government lands can be reconciled with the notion of a federal nation-state.32 From the founding forward, political analysis has assumed a nation of states. In Federalist 45, Madison describes governmental powers as being divided between those of the federal government—“few and defined”—and those of the state governments—“numerous and indefinite.” Later, in Federalist 51, Madison writes: “In a compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate governments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”33 In Federalist 39, though, Madison does allow that the U.S. political system cannot be described solely as “federal”: the founders designed the government of the United States according to federal and national principles both. And students of federalism and public policy rightly point out that the boundaries between the national and state governments are continually evolving and complex. Yet political commentators nonetheless assume the political system to be identical to a federal system of government.34 Alexis de Tocqueville sees the United States as being constituted exclusively by its member states and a coterminous national government, while James Bryce observes that “every American citizen lives in a duality of which Europeans, always excepting the Swiss, and to some extent the Germans, have no experience. He lives under two governments and two sets of laws; he is animated by two patriotisms and owns two allegiances.” More recently William Riker writes, “The essential institutions of federalism, are, of course, a government of the federation and a set of governments of the member units, in which both kinds of governments rule over the same territory and people and each kind has the authority to make some decisions independently of the other.” Other political observers, such as Daniel Elazar, Morton Grodzins, Paul Peterson, Samuel Beer, Martha Derthick, Thomas Anton, and Vincent Ostrom, also presume the federal nature of the republic and do not address the awkward realities of the United States’ territories and its government lands.35 The title “United States” doesn’t help: the United States is not the simple aggregate of the states, as the existence of the territories, public lands, and federal district—Washington, D.C. —makes clear. Nor did a majority of states unite to form the union. Rather, the thirty-seven states admitted after the original thirteen were admitted only through specific acts of Congress. But these later states, instead of sending representatives to meet with their partners from the others states to draft a new constitution for the Union, had to petition Congress for admission

as equal states in a preexisting nation-state. State governments in these cases did not exist until Congress created them. For a few states, though—and this was also true of the original thirteen colonies/states—the people themselves came together to form republican governments, in replacement of their preceding governments. Among the territories, Tennessee was first to take this path of territorial self-determination, hence the “Tennessee Plan” of state admission. Michigan, Iowa, California, Oregon, Kansas, and Alaska would follow Tennessee’s example. Still other states—Kentucky, Vermont, Maine, Texas, and West Virginia—had never been territories, but Congress agreed to their admission.36 The actual constitutionality of Texas’s and West Virginia’s admissions, as David Currie and Mark Graber point out in their separate chapters, is by no means established, even though their status may be constitutionally settled. The Constitution’s ambiguity over whether states can exist prior to congressional recognition or not, an issue implicit in the existence of these three models of state admission, may in fact be intentional as Gouverneur Morris and Daniel Elazar suggest.37 The later-arriving states, having the advantage of joining an already viable polity, had the disadvantage of usually having to bargain as unequals over their terms of annexation. Not only did the U.S. government retain the soil not disposed, but Congress set the timing and conditions of annexation per the admissions clause (Article IV, Section 3, Clause 1): “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdictions of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without Consent of the Legislatures of the States concerned as well as of the Congress.” For the power to admit new states is also the power to delay, and Congress did so for a variety of partisan, sectional, strategic, and other reasons.38 The thirty-seven nonoriginal states struggled for statehood for an average of 13.2 years. Illinois was the shortest, at eleven months, and New Mexico the longest, at sixty-two years.39 For seven states, the process took over twenty years. But Congress also determined the boundaries of the new states (as well as those of the territories), as it did in the most noticeable examples of Michigan and then the states of the Southwest in the Compromise of 1850. Congress also specified what proportions of land (if any) that had to be set aside for schools, prisons, insane asylums, and other purposes that it so chose. How, then, can we think of the United States as it developed its territories and government lands within a seemingly federal system of government? The political geographer Donald Meinig has it right, it seems, when he describes the United States as a democratic empire. It is “democratic” because the voters (however circumscribed or expanded the category) through their representatives (Congress) set public policy, policy that favored the expansion of the frontier, commercial development, and greater trade. And the United States is an “empire” because the resultant U.S. sovereignty extended over people (Indians, Mexicans, African Americans, inhabitants of the insular territories) who for long periods in U.S. history had no political voice and who have been dominated politically. In the case of the insular territories,

this period extends to the present and into the foreseeable future.40 The fact of federalism combines democracy and empire. Members of Congress are elected from states and congressional districts within the states, the president is elected by a college of electors assembled from the states, federal justices are appointed by the U.S. presidents, and top personnel in the Departments of Interior, Justice, and Defense (for instance) are appointed and approved by the U.S. president and Senate. The United States is federal in process, then, as policy is determined by politicians elected (and appointed) through areal representation. Of course this same democratic process within the scope of American federalism omits the input of persons outside the states (with the partial exception of the District of Columbia). The high politics of territorial policy remains the product of decisions made by Congress and the executive, selected directly and indirectly by the citizens of the fifty states. Similarly, the lands owned by the U.S. government are not the property of the states whose boundaries supposedly enclose them, even if the states, counties, and private interests have input in public land policies in most instances. Instead, the public lands are possessed by the U.S. government, which may in some instances still wield plenary power over this land. But these lands arguably belong to all citizens of the United States, given that the U.S. government never relinquished to the states or private interests the vast portion of the federal lands that fall within states’ boundaries. Both Meinig and Samuel Beer have it right, too, when they emphasize U.S. nationalism. Not only did nationalism precede the Declaration of Independence, Articles of Confederation, and U.S. Constitution, as Beer observes, but American nationalism implied and resulted in the effective hegemony of one ethnic group and the concomitant subjugation of nonwhites.41 “American” has always excluded particular cultures, races, and religions; not until well into the twentieth century did it encompass Latinos, African Americans, or American Indians—to the extent that it does. Multiculturalism or a genuine pluralism is a comparatively recent phenomenon. Conversely, few use “American” to refer to Puerto Ricans, Samoans, U.S. Virgin Islanders, or Guamanians (i.e., Chamorros). The people of both these areas and the states proper each see themselves as separate cultures and even separate nationalities.

CODA: FEDERALISM AND THE LOUISIANA PURCHASE The Louisiana Purchase marked a critical point in effecting the developments above. The Louisiana Purchase transformed the political and cultural trajectory of the United States. Absent the purchase, it is hard to imagine the United States holding its own in the War of 1812, difficult to envision the seizures of West and East Florida, and unlikely that James Monroe would issue his eponymous doctrine of 1821. The Louisiana Purchase led to the great expansion of the early nineteenth century, culminating—if that’s the right word—with the annexation of Texas in 1845, the settlement of the Oregon border in 1846, and the 1848 cession by Mexico of its most northern and western lands under the Treaty of Guadalupe Hidalgo.42 Without the Louisiana Purchase, the growth of the United States in land area, population, and wealth would have almost certainly been slower and more fractious, and may well have resulted in the establishment of independent governments on North America as feared by many

of the Framers and as imagined as late as the latter half of the 1840s by General Zachary Taylor and John Quincy Adams.43 The Louisiana Purchase also briefly interrupted the Framers’ assumptions of expanding into more-or-less empty lands. With Louisiana came the population of French, Spanish, free blacks, and others in and around New Orleans and dispersed over the western half of the Mississippi River basin. Thus did Article III of the Louisiana Purchase—the treaty between the United States of America and the French Republic—read that “The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible according to the federal Constitution to the enjoyment of these rights, advantages and immunities of citizens of the United States, and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the Religion which they profess.”44 Despite the fact that these persons mostly spoke French and Spanish, respected other legal traditions (i.e., the Napoleonic Code), were Catholics, and had different cultural norms, Congress admitted the Orleans Territory in 1812 as the State of Louisiana, over Federalists’ objections.45 More, the Louisiana Purchase created the vast public domain. With the Northwest Ordinance already in place, the Louisiana Purchase provided the U.S. government with tremendous discretionary powers over how to dispose and otherwise allocate the public domain of unorganized and then organized territories. Without the purchase, the U.S. government would almost certainly have had less control over land usage and its dedication for particular purposes. There would in all likelihood not have been the number and size of U.S.-government lands grants available for road, canal, and railroad building for the purpose of expediting communication, commerce, and settlement. Neither would there have been the rest of the public domain available for sale and, with it, government revenue. And without Louisiana (the whole territory, that is), or with just the purchase of the island of New Orleans and its immediate environs, the Northwest Ordinance may well have become politically irrelevant, a political dead letter, its model of territorial development unsuited to the subsequent expansion of the United States. Last, the Louisiana Purchase effectively amended the U.S. Constitution, as several writers in this volume point out. Since the Constitution gave the U.S. government no explicit power to acquire additional land area through treaty—and this is what Thomas Jefferson, Chief Justice Roger B. Taney, and others believed—the precedent of the Louisiana Purchase did much to establish an elastic, flexible view of the Constitution and to sanction an expanding United States. Congress and the other two branches would now decide exactly how the United States was to grow geographically, and how the areas and persons falling under the sovereignty of the United States were to be treated. With the Louisiana Purchase, the powers of the U.S. president, powers to make treaties, admission of new states, implications of the Territories and of the Enclave Clauses, and other constitutional provisions—indeed, the document itself— acquired new applications and different meanings. It would never be the same.

NOTES 1 William Riker points out that the spheres of jurisdiction may be either quite narrow, “peripheralized,” or almost all-encompassing, “centralized,” for each of the different levels of government in a federal system. See Federalism: Origin, Operation, Significance (Boston: Little Brown, 1964). 2 Central Intelligence Agency, The World Factbook (Washington, D.C.: Government Printing Office, 2001). 3 General Services Administration, Summary Report of Real Property Owned by the United States throughout the World as of September 30, 1991, table 7, in George Cameron Coggins, Charles Wilkinson, and John D. Leshy, Federal Public Lands and Resources Law, 4th ed. (New York: Foundation Press, 2001), 150. 4 By “sovereignty,” I mean what Stephen Krasner refers to as “domestic sovereignty” —the authority and control of an area. But the territories of the United States also fall within Krasner’s other definitions of sovereignty: international legal sovereignty (since the territories are represented internationally by the U.S. government) and “Westphalian sovereignty” or “the exclusion of external actors from authority structures within a given territory.” See Krasner, Sovereignty: Organized Hypocrisy (Princeton, N.J.: Princeton University Press, 1999), 3-4. Also see Jens Bartelson, A Genealogy of Sovereignty (Cambridge, UK: Cambridge University Press, 1995); Antony Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law,” Harvard International Law Journal 40 (Winter 1999). 5 See Thomas J. Anton, American Federalism and Public Policy (Philadelphia: Temple University Press, 1988); Samuel H. Beer, To Make a Nation: The Rediscovery of American Federalism (Cambridge, Mass.: Belknap, 1993); Martha Derthick, Keeping the Compound Republic: Essays on Federalism (Washington, D.C.: Brookings, 2001); Thomas R. Dye, American Federalism: Competition among Governments (Lexington, Mass.: Lexington Books, 1990); Daniel Elazar, American Federalism: A View from the States, 3rd ed. (New York: Harper & Row, 1984); Daniel Elazar, “Federalism and Intergovernmental Relations,” in Cooperation and Conflict: Readings in American Federalism, Daniel J. Elazar, R. Bruce Carroll, E. Lester Levine, and Douglas St. Angelo, eds. (Itasca, Ill.: F. E. Peacock Publishers, 1969), 2-19; Vincent Ostrom, The Meaning of American Federalism: Constituting a SelfGoverning Society (San Francisco: Institute for Contemporary Studies, 1991); Riker, Federalism. 6 I leave out any discussion of the American Indians, another subject altogether. 7 I use “government lands” rather than “public domain” or “public lands.” “Public domain” refers to areas acquired by the United States from other sovereigns, and may refer to land open for settlement. And “public lands,” which could be all lands possessed by the U.S. government, suggests an openness and availability, whereas the use of government lands is

more than likely restricted, mildly in the case of the National Forests and National Parks, and severely in the cases of the Department of Defense and Department of Energy lands. The term “federal lands,” meanwhile, is consistent, with the use of “federal” to refer to the U.S. federal government as the central government (per the “Federalists,” the colloquial label the “feds”), but obscures the nonstate and involuntary qualities of the fact of the U.S. government lands. 8 See John W. Smurr, “Territorial Constitutions,” (PhD diss., Bloomington: University of Indiana, 1960); Jack Erickson Eblen, The First and Second United States Empires: Governors and Territorial Government, 1784-1912 (Pittsburgh: University of Pittsburgh Press, 1968); Grupo de Investigadores Puertorriquenos, Breakthrough from Colonialism, 2 vols. (Rio Piedras: Editorial de la Universidad de Puerto Rico, 1986); Peter S. Onuf, Statehood and Union (Bloomington: Indiana University Press, 1987). 9 The equal footing doctrine was upheld in Pollard v. Hagan, 3 How. 212 (1845). Also see Coyle v. Smith, 221 U.S. 559, 556-67 (1911), in Coggins, Wilkinson and Leshy, Federal Public Lands and Resources Law, 56. For congressional legislation admitting the territories as states, see laws in Frederick E. Hosen, ed., Unfolding Westward in Treaty and Law (Jefferson, N.C.: McFarland & Co., Publishers, 1988). But see Carolyn M. Landever, “Whose Home on the Range? Equal Footing, the New Federalism and State Jurisdiction on Public Lands,” Florida Law Review 47 (September 1995): 557-639. 10 Arthur Bestor, “Constitutionalism and the Settlement of the West: The Attainment of Consensus, 1754-1784,” in John Porter Bloom, ed., The American Territorial System (Athens, Ohio: Ohio University Press, 1973), 13-44; Robert F. Berkhofer, Jr., “The Northwest Ordinance and the Principle of Territorial Evolution,” in ibid., 45-55; James Bryce, The American Commonwealth, 2 vols. (London: Macmillan, 1891), 556; Roger Bell, Last among Equals: Hawaiian Statehood and American Politics (Honolulu: University of Hawaii Press, 1984), 43; Earl S. Pomeroy, The Territories and the United States 1861-1890 (Seattle: University of Washington Press, 1969 [1947]), 2; Eblen, The First and Second United States Empires. 11 182 U.S. 244 [1901]. There was no majority for any one position in Downes. Justice Henry Brown’s decision for the Court was joined by no other justices on the bench, and as many justices joined Justice White’s concurring opinion (articulating the “incorporated versus unincorporated territories” doctrine) as did Chief Justice Fuller’s dissent. John Marshall Harlan joined Fuller but also added his own dissent. 12 Williams Jennings Bryan and the Democrats raised imperialism as an issue in the election of 1900, but given the other issues of the time (prosperity after the depression of 1893, the gold standard), we cannot say (and especially in an era before public opinion polls) that imperialism was the issue that elected McKinley to a second term. 13 There are different lists of the Insular Cases. A short list has the nine cases in 1901, seven of which were issued in late May, the last two in December; a longer list is that of Efrén

Rivera Ramos, which includes twenty-three cases. See “Deconstructing Colonialism: The ‘Unincorporated Territory’ as a Category of Domination,” in Christina Duffy Burnett and Burke Marshall, eds., Foreign in a Domestic Sense (Durham, N.C.: Duke University Press, 2001), 104-20. I list thirty-five cases. See Bartholomew H. Sparrow, Emergence of Empire: The Insular Cases and the Territorial Expansion of the United States (Lawrence: University Press of Kansas, 2006). 14 258 U.S. 345 (1922). 15 See Sparrow, Emergence of Empire. Some fundamental rights applied absent incorporation, such as the right to property, the right to make contracts, and freedom of religion, but Congress retained the authority to keep the insular territories as permanent political dependencies. 16 See Simeon Baldwin, “Government of Island Territory,” 15 Harvard Law Review 393, 394 (1901); E. Robert Statham, Colonial Constitutionalism: The Tyranny of United States’ Offshore Territorial Policy and Relations (Lanham, Md.: Lexington Books, 2002), 9—10. 17 See Donald Meinig, Atlantic America, 1492—1800. The Shaping of America, vol. 1 (New Haven, Conn.: Yale University Press, 1986); Peter S. Onuf, Jefferson’s Empire (Charlottesville: University Press of Virginia, 2000); Alexander Hamilton, Federalist No. 7, in Hamilton, Jay, and Madison, The Federalist (New York: Modern Library, n.d.), 34—35. 18 See, for instance, the papers published in the Annals of the American Academy of Political and Social Science (July 1901), 9—179; Whitney T. Perkins, Denial of Empire: The United States and Its Dependencies (Leyden: A. W. Sythoff, 1962); James Bradley Thayer, “Our New Possessions,” 12 Harvard Law Review 404 (1899). Also see Winfred Lee Thompson, The Introduction of American Law in the Philippines and Puerto Rico 1898—1905 (Fayetteville: The University of Arkansas Press, 1989). 19 For accounts of the dependent or colonial status of the territories see Juan R. Torruella, The Supreme Court and Puerto Rico (Rio Piedras: Editorial de la Universidad de Puerto Rico, 1985); Jose A. Cabranes, Citizenship and the American Empire: Notes on the Legislative History of the United States Citizenship of Puerto Ricans (New Haven, Conn.: Yale University Press, 1979); Efrén Rivera Ramos, The Legal Construction of Identity: The Judicial and Social Legacy of American Colonialism in Puerto Rico (Washington, D.C.: American Psychological Association, 2001); Statham, Colonial Constitutionalism; Lanny Thompson, “The Imperial Republic: A Comparison of the Insular Territories under U.S. Dominion after 1898,” Pacific Historical Review 71, no. 4 (2002): 535—74; and Burnett and Marshall, eds., Foreign in a Domestic Sense. 20 Hawai’i’s racial mix provoked concern in Congress over its suitability as a state and would be partly responsible for its delayed admission as a state. See Bell, Last among Equals; Grupo de Investigadores Puertorriquenos, Breakthrough from Colonialism.

21 Other territories of the union had been subject to racial discrimination, of course, among them New Mexico with its large population of Hispanics, Oklahoma, which merged with the Indians of Indian Territory, and Orleans Territory, with its large population of Spanish, French, and former slaves. (And Utah was discriminated against for reasons of Mormonism and polygamy.) Not until 1864, in fact, did the acts of Congress that established territorial governments cease from restricting suffrage to white males. Only with the territories of Montana, Wyoming, and Oklahoma did Congress depart from the example set by the Northwest Ordinance and grant suffrage to male inhabitants regardless of race. Then, of course, there were the more permanent issues of African Americans and the Indians. 22 See Coggins, Wilkinson, and Leshy, Federal Public Lands and Resources Law. 23 The states did retain the right of eminent domain over the shores and soils under the navigable waters within the territories annexed as states. See Pollard v. Hagan, 3 How. 212 (1845). 24 This and the following paragraphs draw from Paul W. Gates and Robert W. Swenson, History of Public Land Law Development. Public Land Law Commission (Washington, D.C.: U.S. Government Printing Office, 1968); Sally K. Fairfax and Carolyn E. Yale, Federal Lands: A Guide to Planning, Management, and State Revenues. Western Office, Council of State Governments (Washington, D.C.: Island Press, 1987); Coggins, Wilkinson, and Leshy, Federal Public Lands and Resources Law; Christopher McGrory Klyza, Who Controls Public Lands? (Chapel Hill: University of North Carolina Press, 1996); and Charles Davis, ed., Western Public Lands and Environmental Politics, 2nd ed. (Boulder: Westview, 2001). 25 Key in establishing the extensive Forest Service (and National Park Service and U.S. Fish and Wildlife) holdings in Alaska was the Alaska National Interest Lands Conservation Act (ANILCA), passed under President Carter in 1980. ANILCA set aside 103 million acres for the National Park System, National Wildlife Refuge System, and National Wilderness Preservation System. 26 General Services Administration, Summary Report of Real Property Owned by the United States throughout the World as of September 30, 1991, table 7, in Coggins, Wilkinson, and Leshy, Federal Public Lands and Resources Law, 150. 27 Coggins, Wilkinson, and Leshy, Federal Public Lands and Resources Law, 211. Some revenues are dedicated to particular funds, such as 40 percent of gross mineral revenues under the Mineral Leasing Act goes to the Reclamation Project. On the rationales for such revenue sharing, see Fairfax and Yale, Federal Lands, 38—39. Although there may be several good reasons for such payments, Sally Fairfax and Carolyn Yale suggest that the best rationale may be the “spoonful of sugar” argument: that the payoffs prevent the states from complaining. 28 If minerals are extracted from Forest Service lands, however, the Forest Service proportion of revenues (25 percent) holds. One departure from the above is that the counties receive 75

percent of revenues from sales on the O and C lands—the old Oregon and California R.R. lands that now belong to the USFS. See Fairfax and Yale, Federal Lands, 12, 60; James J. Lopach, “The Supreme Court and Resource Federalism: Commonwealth Edison Co. v. Montana,” in J. G. Francis and R. Ganzel, eds., Western Political Lands: The Management of Natural Resources in a Time of Declining Federalism (Totowa, N.J.: Rowman & Allenheld, Publishers, 1984), 292—99; also see Coggins, Wilkinson, and Leshy, Federal Public Lands and Resources Law, 209—12. 29 Neither do the states collect taxes from commerce transacted at the military base commissaries either, although private enterprises leasing space on a military base do have to pay the relevant state and local taxes. In addition, military personnel are allowed to maintain their permanent residency in a state of their choosing, whether hundreds or thousands of miles away, no matter that they may live on a particular base or be rotated among several military locations for years at a time. 30 State of Nevada ex rel. Loux v. Herrington, 777 F.2d 529 (9th Cir. 1985); State of Nevada v. Herrington, 827 F.2d 1394 (9th Cir. 1987); State of Nevada v. Burford, 918 F.2d 854 (9th Cir. 1990). See Coggins, Wilkinson, and Leshy, Federal Public Lands and Resources Law, 180-81. 31 Coggins, Wilkinson, and Leshy, Federal Public Lands and Resources Law, 147. 32 Also see the essays in Charles Davis, ed., Western Public Lands and Environmental Politics, 2nd ed. (Boulder, Colo.: Westview Press, 2001). 33 There are exceptions among those writing about the U.S. government’s western lands. See several of the essays in Francis and Ganzel, eds., Western Political Lands. 34 Hamilton, Jay, and Madison, The Federalist, 303, 339. 35 Hamilton, Jay, and Madison, The Federalist, 245—50; also see the essays by Grodzins and Elazar, “Centralization and Decentralization in the American Federal System,” and Martin Diamond, “What the Framers Meant by Federalism,” in Robert A. Goldwin, ed., A Nation of States (Chicago: Rand McNally, 1961). The legal scholar Gerald Neuman briefly refers to the discrepancy between the scope of the polity and political representation: “The fundamental republican defect” is “that the Constitution restricts national representation to the states while giving the national organs governing power over the territories”; see Neuman, “Constitution and Individual Rights in the Territories,” in Burnett and Marshall, Foreign in a Domestic Sense, 196—97. Mark Tushnet also notes the existence of “partial membership” in the American political system; see Tushnet, “Partial Membership and Liberal Political Theory,” in Burnett and Marshall, Foreign in a Domestic Sense, 209—25. But neither writer directly confronts federalism as a core political philosophy of the United States, or examines the political consequences that follow.

36 Alexis de Tocqueville, Democracy in America (New York: Doubleday, 1969), 114—17, 167—70; James Bryce, The American Commonwealth (New York: Macmillan, 1891), 1: 412; Riker, Federalism, 5. Also see sources in note 5, supra. 37 See Grupo de Investigadores Puertorriquenos, Breakthrough from Colonialism, 1055— 1143, 1207—27. 38 See Daniel Elazar, “Our Thoroughly Federal Constitution,” in Robert A. Goldwin and William Schambra, eds., How Federal Is the Constitution? (Washington, D.C.: American Enterprise Press, 1987), 38—66. 39 See Grupo de Investigadores Puertorriquenos, Breakthrough from Colonialism; also see Nolan McCarty, Keith T. Poole, and Howard Rosenthal, “Congress and the Territorial Expansion of the United States,” in David W. Brady and Mathew D. McCubbins, eds., Party, Process, and Political Change in Congress: New Perspectives on the History of Congress (Stanford, Calif.: Stanford University Press, 2002). 40 See Grupo de Investigadores Puertorriquenos, Breakthrough from Colonialism, app. B, 1519—1531. 41 D. W. Meinig, The Shaping of America Vol. 2, Continental America 1800—1867 (New Haven, Conn.: Yale University Press, 1993). 42 Beer, To Make a Nation. See, especially, Ronald Takaki, Iron Cages: Race and Culture in Nineteenth-Century America (New York: Knopf, 1979); Rogers M. Smith, “Beyond Tocqueville, Myrdal, and Hartz: The Multiple Traditions in America,” American Political Science Review 87 (1993): 549—66; Rogers Smith, Civic Ideals (New Haven, Conn.: Yale University Press, 1997); Gunnar Myrdal, An American Dilemma: The Negro Problem and American Democracy (New York: Harper and Row, 1944). 43 The effect of the Louisiana Purchase on the slavery issue and the outbreak of the Civil War has been noted by others. See Michael Morrison, Slavery and the American West (Chapel Hill: University of North Carolina Press, 1999); David M. Potter, The Impending Crisis (New York: Harper and Row, 1976); Don E. Fehrenbacher, The Dred Scott Case (New York: Oxford University Press, 1978); Ray Allen Billington, Westward Expansion, 2nd ed. (New York: Macmillan, 1960); Robert E. Bonner “Empire of Liberty, Empire of Slavery”; Peter S. Onuf, “The Louisiana Purchase and American Federalism,” in Kastor, ed., The Louisiana Purchase, 117—28; Peter S. Onuf, Jefferson’s Empire: The Language of American Nationhood (Charlottesville: University of Virginia Press, 2000) 44 See Meinig, Continental America 1800—1867, 159—60. 45 Cited in Kastor, ed., The Louisiana Purchase, 143—44. Soon after the purchase, the territory of Orleans attracted still more non-Americans: Orleans received about ten thousand

immigrants in 1804 and 1806, and four thousand more in 1807—1808 (with many of these being refugees from Santo Domingo). The census of 1810 showed seventy-five thousand white inhabitants and thousands more slaves who worked the plantations for cotton, sugar, and other crops.

Index Ackerman, Bruce Adams, John Adams, John Quincy Adams-Onís Treaty of African Americans. See also slavery Alabama Alaska: admission as a state annexation offederal lands interritorial status of Alden v. Maine Aleinikoff, T. Alexander Alexander, Larry American Empire American Insurance Co. v. 365 Bales of Cotton (Canter) Appleby, Joyce Archer, William S. Arizona Arkansas Articles of Confederation Ashley, Chester Astor, John Jacob Atchison, Davy Baldwin, Simeon Balzac v. Porto Rico Barrow, Alexander Bayly, Thomas Beer, Samuel Benton, Thomas Hart Berrien, John Beveridge, Albert Blackstone, William Blair, Frank Blight, David W. Bosley, William Bradford Brands, H. W. Breckinridge, John Breese, Sidney Brock, Ralph H. Brown, Henry Brown, John Brown v. Board of Education Bryan, William Jennings Bryce, James Buchanan, James Bureau of Land Management Burnett, Christina Duffy Burr Conspiracy Bush, George W., constitutionality of presidency and

Bush v. Gore Calhoun, John C. California: admission as a state and annexation of cession by Mexico ofgold discovery andland policy and Canada Cass, Lewis Chase, Salmon CherokeeSee also Native Americans Chinese immigrants Chisholm v. Georgia citizenship: Civil War: abolition of slavery and annexation of Texas and Louisiana Purchase and start oftransformation of the United States and Clay, Cassius Clay, Henry Cleveland, Sarah H. Colorado Compromise of Connecticut Constitution andexpansion of the United States andPuerto Ricans andSamoans and state versus U.S.U.S. territories and Cooper v. Aaron Credit Mobilier de Crevecoeur, Hector St. John Cross v. Harrison Cuba Currie, David Curtis, Michael Kent Dahl, Robert Darwin, Charles Deannexation of U.S. territories Declaration of Independence Defense, U.S. Department of Delaware Democratic Party De Lima v. Bidwell See also Insular Cases Destutt de Tracy, Antoine Claude Deverell, William F. Devins, Neal Dickinson, John District of Columbia. See Washington, DC. Dixon, Archibald Douglas, Stephen A. Downes v. Bidwell. See also Insular Cases Dred Scott Dred Scott v. Sandford Elazar, Daniel Electoral College England. See Great Britain “Equal footing” doctrine Evans, George Henry “extended republic,” Fairfax, Sally Federal landsU.S. agencies andU.S. land policy and Federalism Federalist Papers Federalists

Field, Stephen Fifth Amendment Fish and Wildlife Service, U.S. Fisher, Louis Fleming v. Page Flint, Timothy Florida Foraker Act Forest Service, U.S. Fourteenth Amendment. See also citizenship France: Louisiana Purchase and Old World and Free Soil Party Freehling, William Frémont v. United States Friedman, Barry Frisbie v. Whitney Fugitive Slave Act Fuller, Melville W. Gadsden Purchase Gallatin, Albert Gardiner, Charles A. Gates, Paul Wallace George, Henry Georgia Germany Go, Julian Goetze v. United States. See also Insular Cases Gold Rush Golove, David Gore, Al Graber, Mark Grafton v. United States. See also Insular Cases Great Britain: aristocracy of imperialism of as island-nationmixed governmental regime of Oregon Country and Samoa and Greeley, Horace Guam: administration and government ofAmerican empire andannexation of Chamorros, characterization ofpolitical status of inhabitants of population ofpublic attention towardsstrategic value of Guantánamo Bay Haiti, slave revolt in Hamilton, Alexander Hamlin, Edward S. Harlan, John Marshall Hawaii Hawaii v. Mankichi Hietala, Thomas Holmes, Stephen Homestead Act of Houston, Sam Hughes, Charles Evan Idaho Illinois “incorporation,” meanings of Indiana Indians. See Native Americans Insular Cases: deannexation of territories anddefining the “United States,” “incorporated” versus “unincorporated” territories list of casesPuerto Rico andpolitical self-determination andrace and Iowa

Iowa Railroad Land Company v. Courtright Iraq Jackson, Andrew Japanese immigrants Jay, John Jefferson, Thomas: agrarianism of Destutt de Tracy anddoubt about the constitutionality of Louisiana Purchase and economic prosperity and expansion of United States and “extended republic” and federalism and interpretation of Treaty Clause and Lewis and Clark andLouisiana Purchase and Missouri Controversy andMontesquieu and nation and republican government and Republican Party and Sally Hemings and slavery and Johnson, Andrew Jones Act Judiciary, lack of relevance with respect to constitutional issues of American expansion Julian, George Kansas Kansas-Nebraska Act Kaplan, Amy Kastor, Peter Kennedy, John P. Kens, Paul Kentucky Krasner, Stephen Langdell, Christopher Columbus Lawson, Gary Lecompton Controversy Lee, Francis Levinson, Sanford Lewis and Clark Expedition Lincoln, Abrahamelection as U.S. president andas member of Congress slavery and Lincoln, Levi Livingston, Robert R. Loughborough v. Blake Louisiana Purchase: America’s overseas empire and bicentennial ofcentennial of Civil War and constitutional issues and French sale of government ofincorporation of foreign territory and size ofslavery and symposium onTexas and U.S. expansion and Louisiana Purchase treaty Louisiana, state of Louisiana, Territory of Lowell, A. Lawrence Ludlow, William Madison, James: political philosophy of as U.S. president Maine “Manifest Destiny,” Marbury v. Madison Marshall, John: American Empire and constitutional status of U.S. territories and Maryland Massachusetts McCullough v. Maryland McDuffie, George McKinley, William: Cuba and Philippines and presidential reelectionSt. Louis Fair andSpanish-American War and McPherson, James M. Meinig, Donald W. Merk, Frederick Mexican Cession. See Treaty of Guadalupe Hidalgo Mexicans Mexican War

Mexico: borders issues and rebellion against Spain relationship with the United States Texas and Michigan Minnesota Mississippi Mississippi River: control of trade on expansion of the United States beyond as the heart of the United States threatened French control of as the western boundary of the United States Mississippi v. Johnson Missouri Missouri Compromise Missouri Controversy Missouri v. Holland Mitchell, Samuel L. Monroe, James Montana Montesquieu, Charles Secondat, Baron de Moore, John Norton Morris, Gouverneur Murphy, Walter F. Napoleon, Louis Napoleonic Code Native Americans: gold rush and lands ofLouisiana Purchase andNorthwest Ordinance andpartial citizenship of threat to white Americans and Neuman, Gerald Nevada New Mexico: acquisition of admission as a state and harshness of the land of land policy and New Orleans New York NLRB v. Jones & Laughlin Steel Corp. North Carolina North Dakota Northern Marianas Northwest Ordinance Northwest Territory Ohio Oklahoma Onuf, Peter Oregon: admission as a state and annexation of dispute with Britain over land policy andSpanish claims on Orleans Territory Oppenheimer, Bruce O’Sullivan, John Louis Paine, Thomas Park Service, national Paulsen, James W. Philippines: American empire and annexation of constitutional status of deannexation of demographics of government of public attention towards statehood of Phillips, Kevin Pisani, Donald Planned Parenthood v. Casey Plessy v. Ferguson Polk, James Knox Precedent, potential instability of Prigg v. Pennsylvania Public domain. See federal lands Puerto Rico: annexation of demographics of government of identity ofInsular Cases andas part of the “United States,” political subordination of public attention towardsrace and statehood of as “unincorporated” territory

Rahe, Paul Rakove, Jack Randolph, Carman F. Randolph, Edmund Rayner, Kenneth “reasonableness,” principle of republican government Republicans, Jeffersonian Republican Party Rhode Island: admission as a state and ratification of U.S. Constitution and Rice v. Railroad Company Richards, Solicitor General John K. Riker, William Rivera Ramos, Efrén Rockwell, Julius Rocky Mountains Roe v. Wade Roosevelt, Theodore Roosevelt, Franklin D. Root, Elihu Russia Saint Domingue (Santo Domingo) St. Louis World’s Fair of Samoa: annexation of identity ofpopulation of public attention towards rebellion in as “unincorporated” territoryU.S. administration of Sample, Samuel C. Say, Jean Baptiste Scalia, Antonin Schauer, Frederick Schurman Commission Seidman, Guy Seidman, Louis Michael Seré v. Pitot settlement of constitutional questions slavery: balance in U.S. Senate and banning in the territories and diffusion of. See also Dred Scott v. Sandford; Framers and Louisiana Purchase and opponents of Puerto Rico andU.S. citizenship andwestern expansion and Smith, Adam Smith, Henry Nash South Carolina South Dakota Spain: colonial possessions France and Mexican rebellion against Transcontinental Treaty and Spanish-American War Spanish Colonies. See Spain Sparrow, Bartholomew Spencer, Herbert statehood, congressional control over terms of statehood, denied to “unincorporated” territories. See also deannexation of U.S. territories statehood, territories’ process towards Story, Joseph, and annexation of Texas Sutter, John Taft, William Howard Taney, Roger Brooke Taylor, Zachary Tennessee Territories Clause. See United States Constitution Texas: admission as a state and annexation of boundaries ofconstitutionality of annexation extension of slavery and federal lands and Mexican War andRepublic ofU.S. expansion and

Texas v. White Thayer, James Bradley Thomas, Clarence Thoreau, Henry David Tilden, Samuel de Tocqueville, Alexis Treaty of Guadalupe Hidalgo Treaty of Paris. See Louisiana Purchase Treaty Treaty of Paris of Turner, Frederick Jackson Tushnet, Mark Tyler, John Underwood, Joseph R. United States, definition of United States, as territorial power United States Constitution, Article I: Section 1Section 3Section 8, Clause 1 (“Uniformity Clause”) Section 8, Clause 13 (“Navy Clause”)Section 8, Clause 18 (“The Sweeping Clause” or “The Necessary and Proper Clause”) Section Section United States Constitution, Article II: Section 1Section 2, Clause 2 (“The Treaty Clause”) United States Constitution, Article III, United States Constitution, Article IV: Section 3, Clause 1 (“The Admissions Clause”) Section 3, Clause 2 (“The Territories Clause”; “The Property Clause”) Section 4 (clause for the guarantee of Republican government) United States Constitution, Article V, United States Constitution, Article VI: Clause 2 (“The Supremacy Clause”) United States Constitution, Bill of Rights University of Virginia Utah Van Buren, Martin Vermont Virginia Virginia v. Tennessee Virgin Islands, U.S. Waldron, Jeremy War of Washington Washington, D.C.: capital of the United Statesfederalism and inclusion within the “United States,” Webster, Daniel Weinberg, Albert K. Weiner, Mark West Virginia Wheaton, Henry Whigs White, Edward D.: deannexation of territories and “incorporated” vs. “unincorporated” territories Territories Clause and “United States,” definition of Whitney, Edward B. Whittington, Keith Wilderness Act Wilfley, Lebbeus F. Willoughby, William W. Wilmot Proviso Wisconsin Woodbridge, William Woodbury, Levi Wyoming Yale, Carolyn Yosemite Valley Case

About the Contributors H. W. Brands is Dickson Allen Anderson Professor of History at the University of Texas at Austin. His books on American history include Andrew Jackson, Lone Star Nation, The Age of Gold, and The First American. His books on American politics and diplomacy include The Strange Death of American Liberalism, What America Owes the World, and The Devil We Knew. Christina Duffy Burnett is co-editor (with Burke Marshall) of Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution and author of “Untied States: American Expansion and Territorial Deannexation,” University of Chicago Law Review, vol. 72. She is completing her doctorate in American legal history at Princeton, and has a J.D. from Yale Law School and an M.Phil. from Cambridge. She served as clerk to Judge José A. Cabranes on the Second Circuit Court of Appeals in 2000–2001 and Justice Stephen G. Breyer on the U.S. Supreme Court in the October 2004 term. David P. Currie is Edward H. Levi Distinguished Service Professor at the University of Chicago Law School. Prof. Currie clerked for Judge Henry J. Friendly and Justice Felix Frankfurter. Prof. Currie is interested in the study of extrajudicial interpretations of the Constitution. He is the author of three casebooks, Cases and Materials on Federal Courts, Cases and Materials on Pollution, and Cases and Materials on Conflict of Laws, and has written a number of others, including: The Constitution in the Supreme Court: The First Hundred Years, The Constitution of the Federal Republic of Germany, and Air Pollution: Federal Law and Analysis. He also recently published The Constitution in Congress: The Jeffersonians, 1801–1829. Prof. Currie has taught at the Universities of Frankfurt, Hannover, Heidelberg, and Tübingen in Germany and the European University Institute in Florence. William W. Freehling is Otis A. Singletary Chair in the Humanities at the University of Kentucky. He is the author of Prelude to Civil War: The Nullification Controversy in South Carolina (winner of the Nevins and Bancroft prizes), The Road to Disunion, Vol. I (winner of the Owsley Prize), The South versus The South: How Anti-Confederate Southerners Shaped the Course of the Civil War (winner of the Jefferson Davis Award), and many journal articles. He is finishing volume two of The Road to Disunion and working on a project on the decorative arts entitled “The Emergence of an American Style,” a new book manuscript, The American Multicultural Tradition and the People Who Made It, and a textbook, Two Crises: A Comparison of the American Revolutionary and Civil Wars.

Julian Go is assistant professor of sociology at Boston University. Besides authoring various articles on colonialism, culture, and the U.S. empire, he is co-editor of The American Colonial State in the Philippines: Global Perspectives . His latest monograph is entitled “American Empire and the Politics of Meaning: Elite Political Culture in Puerto Rico and the Philippines during U.S. Occupation.” He has been Academy Scholar at the Harvard Academy for International and Area Studies and previously taught at the University of Illinois. Mark A. Graber is professor of government at the University of Maryland, College Park, and a professor of law at the University of Maryland School of Law. He is the author of Transforming Free Speech, Rethinking Abortion, and many articles on constitutional law, history, politics, and theory. Paul Kens is professor of political science and history at Texas State University-San Marcos. He is the author of Justice Stephen J. Field: Shaping Liberty from the Gold Rush to the Gilded Age, Lochner v. New York: Economic Regulation on Trial, many other writings on constitutional history and western legal history, and two textbooks of consumer law. He is currently working on a forthcoming book, The Chief Justiceship of Morrison R. Waite. Kens is the recipient of NEH fellowships, the Hugh Gossett Prize from the United States Supreme Court Historical Society, and the John Townley award. Gary Lawson is professor of law at Boston University School of Law. He served as a law clerk to Justice Antonin Scalia at both the D.C. Circuit Court of Appeals and the U.S. Supreme Court, an attorney-advisor for the U.S. Justice Department’s Office of Legal Counsel, and an Olin Fellow at Yale Law School. He previously taught at the Northwestern University School of Law. He has published numerous books and articles focusing on administrative law, constitutional history, constitutional theory, and jurisprudence. Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law at the University of Texas Law School; he is also a professor in the Department of Government at the University of Texas. He is the author of Constitutional Faith; Written in Stone: Public Monuments in Changing Societies; and Wrestling with Diversity. He has also edited Responding to Imperfection: The Theory and Practice of Constitutional Amendment and Torture: A Collection. He is a member of the American Academy of Arts and Sciences. Peter S. Onuf is Thomas Jefferson Foundation Professor in the Corcoran Department of History at the University of Virginia. His recent work on Thomas Jefferson’s political thought, culminating in Jefferson’s Empire: The Language of American Nationhood, grows out of his earlier studies on the history of American federalism, foreign policy, and political economy. With his brother, the political theorist Nicholas G. Onuf, he recently completed Nations,

Markets, and War: An Essay in Modern History, a sequel to their collaboration, Federal Union, Modern World. Efrén Rivera Ramos is professor of law and the dean of the School of Law at the University of Puerto Rico. He holds degrees from UPR, Harvard, and the University of London. A published poet and a former journalist, he has also written extensively on the constitutional relationship between Puerto Rico and the United States. He is the author of The Legal Construction of Identity: The Judicial and Social Legacy of American Colonialism in Puerto Rico. Guy Seidman is assistant professor of law at the Interdisciplinary Center, Herzliya, Israel. He is a graduate of Tel-Aviv University and Northwestern University of Chicago, and a former officer of the Israeli Judge Advocate General’s Corps. He is primarily interested in administrative law and in comparative law and legal traditions. The chapter in this volume is part of a long-term collaboration with Prof. Gary Lawson. Bartholomew H. Sparrow is associate professor of government at the University of Texas at Austin. He is author of Emergence of Empire: The Insular Cases and Territorial Expansion of the United States, Uncertain Guardians: The News Media as a Political Institution, From the Outside In: World War II and the American State, journal articles, and book chapters. He has received the Franklin Burdette Pi Sigma Alpha and the Leonard H. White awards from the American Political Science Association.