Saturday, April 20, 2019

A Better Book: Trust Oneself, then Know Oneself

A week ago I had the pleasure of being on a panel focused on my recent book, Almost Citizens. Sophia Lee asked me a question that zeroed in on one of the book’s core claims: ambiguity often acts as a tool and pathway for legal and political actors seeking to alter constitutional meaning. Sophia’s question also cast into relief the topic of this post: the need both to trust one’s instincts and to interrogate them.

Sophia’s question ran along these lines:
Almost Citizens unfolds in two parts.  The first concerns Federico Degetau, a legal idealist. He believed that the Supreme Court would, if squarely presented with the issue, adhere to settled constitutional understandings and judge Puerto Ricans to be rights-rich U.S. citizens of a future state. That never happened. The book’s second half focuses on Puerto Ricans who use politics to gain rights.  They have more success.  Yet the book is sympathetic to Degetau. The afterword pines for a revival of older constitutional understandings.  So which is it: Is law or politics dominant? Was Degetau savvy or naïve?
I was really happy to get the question.  Sophia had identified the tension between my faith in the autonomy of law and my comprehension that law had no existence apart from the broader world. At a general level, these were strands in legal history that another of last week’s panelists, Bob Gordon, had influentially spelled out 35 years ago. This post concerns how that tension mapped onto my own intuitions and research trajectory.

I was a 1L in law school and had yet to start my doctoral program in American Culture when I first encountered the Insular Cases (1901-1905).  It was thus very much as a lawyer (in the making) that I read these cases remaking the constitutional law of U.S. empire. I was struck by the absence of unequivocally binding doctrine to be found in them. Contrast many historians, who were more likely to notice the justices’ racial rhetoric, their dicta sympathetic to empire, and their failure to rein in colonialism.

My initial interpretation of events ran along formalist lines.  By trusting that I was analyzing the cases correctly, I could distinguish myself from a host of prior work. I argued that other scholars over-read the early Insular Cases. Downes v. Bidwell (1901) had no majority opinion. It thus could not have invented as binding doctrine the proposition that Puerto Rico was unincorporated, hence neither destined for statehood nor entitled to non-fundamental constitutional rights.  Gonzales v. Williams (1904) expressly declined to decide whether Puerto Ricans were U.S. citizens, so it did not hold that they were noncitizen nationals.  A justice firmly opposed to the doctrine of territorial nonincorporation joined the majority opinion in Dorr v. United States (1904), so it made little sense to identify that decision as establishing the doctrine as binding law.  Nor was Rasmussen v. United States (1905) a promising candidate. Its author, Justice Edward White, sought to influence how the Supreme Court reporter depicted the decision because he worried that the decision would not settle the question.

But as I moved from dissertation more firmly to book, I gained insight into my predilections.  I was overinvested in Puerto Rico’s first elected representative to Washington, the brilliant lawyer Federico Degetau y González.  As Sophia observed, Degetau shared my soft spot for legal formalism. He knew that citizenship, full constitutional rights, and eventual statehood were the constitutional consequences of annexation under the settled late-nineteenth-century constitutional understandings that I term the Reconstruction Constitution. He saw that new precedents had not overturned the prior case law.  And he expected law to tame politics if courts were provided the proper opportunity. He was wrong.

The more that I researched, the clearer it became that everyone around Degetau saw his legal quest as quixotic.  He left office politically isolated. He made little progress toward citizenship, full constitutional rights, or eventual statehood.  The Court was not opposed to empire and would not confront and overawe politics. The justices were caught between competing impulses: adhere to settled constitutional understandings and avoid dooming the U.S. imperial experiment.

By gaining perspective on Degetau (and myself), I was able to reinterpret the Court’s fractured, evasive decisions.  The justices were not silent on empire; they had not simply left prior constitutional doctrine in place.  The Court was productively ambiguous (for more on legal ambiguity as the handmaiden of empire, see Katrina Quisumbing King’s excellent dissertation-now-book-project). To reconcile the Constitution and empire, it cooperated with nonjudicial actors in a slow, creative process characterized by judicial vagueness.  This became a key claim of the book. Constitutional revolutions are not always marked by landmark cases.  Sometimes they are hidden behind fractured decisions, underdefined terms, narrow holdings, suggestive dicta, and the legal innovations and on-the-ground decisions of bureaucrats, lawmakers, and presidents.

That leads to my answer to Sophia’s questions.  Law never dominated politics. But during the late nineteenth century, the Reconstruction Constitution did slow down imperialistic projects.  As a result, I think there’s value to pursuing a politics dedicated to lodging key commitments in constitutional law.  On that front, we could do worse than to resurrect aspects of the Reconstruction Constitution.  As to Degetau, he was both savvy and naïve.  He was a genius at ginning up citizenship disputes all across the federal government.  But he was overoptimistic in his assessment of the promise of a purely legal strategy.  In making that mistake, he resembles me. I frequently find myself disappointed that courts do not more fully vindicate their professed precedential commitments.  Had I been an elite advocate for Puerto Rico in the early twentieth century, I might have backed Degetau. The value of taking years to write the book decades after the events it depicted were over is that I was able to convey both the attractions and the perils of my and Degetau’s mistaken premise.

--Sam Erman