Wednesday, May 19, 2021

Munshi on Johnson v. M'Intosh

Sherally Munshi, Georgetown University Law Center, has posted "The Court of the Conqueror": Colonialism, the Constitution, and the Time of Redemption, which is forthcoming in Law's Infamy: Understanding the Canon of Bad Law, eds. Austin Sarat, Lawrence Douglas, and Martha M. Umphrey (NYU Press 2021):

Within the constitutional imaginary, colonialism is often represented as a regrettable prehistory to the founding of the nation, an event that conditioned the founding of the revolutionary republic but is not constitutive of it.  Moreover, the constitution itself is invested with the faith that the United States will slowly but eventually overcome its founding sins.  But if the arc of constitutional redemption is defined by the eventual repudiation of infamous race cases—Dred Scott v. Sanford and Korematsu v. United States—then a case like Johnson v. M’Intosh is revealing of the ways in which law continues to place colonial power beyond the scope of constitutional review, historical redress, and national progress.  In Johnson, the Supreme Court recognized that the federal government had the extraordinary power to assert its authority over indigenous peoples, a power which “the Courts of the Conqueror cannot deny.”  That extra-constitutional power, inherent to sovereignty, has since been formalized in the plenary power doctrine, according to which the federal government continues to assert unilateral authority over matters involving Indians, immigrants, and peoples in the United States’ overseas colonies.  As such Johnson and its unfolding legacy represent the stillness of sovereignty, a colonial power that stands beyond the time of redemption. 
--Dan Ernst