Craig Green (Temple University - Beasley School of Law) has posted "Beyond States: A Constitutional History of Territory, Statehood, and Nation-Building." The article appears in Volume 90, no. 3, of the University of Chicago Law Review (2023). The abstract:
The United States has always been more than simply a group of united
states. The constitutional history of national union and component
states is linked to a third category: federal territory. This Article
uses an integrated history of territory, statehood, and union to develop
a new framework for analyzing constitutional statehood. Three
historical periods are crucial—the Founding Era, the Civil War, and
Reconstruction—as times when statehood was especially malleable as a
matter of constitutional law. During each of those formative periods,
the most important constitutional struggles about statehood and the
union involved federal territories.
Conflicts about territories
reveal an important distinction between theories of states’
constitutional authority to participate in national politics (the
“skeleton” of statehood) and their constitutional authority to resist
the national government (the “muscle” of statehood). The skeletal
authority of states to participate in federal politics has been legally
explicit and essential since the Articles of Confederation. By
comparison, advocates for muscular states’ rights have relied on dubious
inferences and historical distortions.
During the Founding Era
and the Civil War, pivotal disputes concerning territories were resolved
to favor the skeleton of representational statehood instead of the
muscular statehood of antifederal resistance. During Reconstruction,
however, the Supreme Court created new doctrines of muscular statehood
that were based on inaccurate histories of the Founding and the Civil
War. Judicial decisions like the Slaughter-House Cases and the Civil
Rights Cases applied those doctrinal theories of muscular statehood to
limit individual rights and congressional power under the Reconstruction
Amendments. In the late twentieth century, such precedents gained force
after the confirmation of politically conservative Supreme Court
Justices, and similar doctrines might be even more powerful with the
modern Court’s conservative supermajority.
This is not how
constitutional law should work. Muscular statehood achieved doctrinal
success much later than most observers assume, and it has neither the
positivist pedigree nor the compelling results to justify
antimajoritarian constitutional status. Although the constitutional
skeleton for states’ participation in the federal government is
foundationally important, constitutional doctrines of muscular statehood
to resist national democracy should be presumptively disfavored.
The full article is available here, at SSRN.
-- Karen Tani
