Ablavsky on Original Understandings of the U.S. Territories

Gregory Ablavsky, Stanford Law School, has posted Original Understandings of the U.S. Territories:

Recently, judges and scholars alike have given renewed attention to the constitutional and legal status of the U.S. territories, including Founding-era understandings of territorial status. This essay seeks to reconstruct early American debates on this question by making two interventions. First, in place of the topics that have most interested present-day commentators-the application of the Constitution or federal power to acquire territory-I focus on the most significant and durable constitutional disagreement of the era: did the territories enjoy rights to self-government outside federal authority? In other words, in nineteenth-century terms, were the territories "sovereign"? Second, it traces a persistent divide between Federalist and Republican (later Whig/Democratic) views on this question that was never fully settled. In its recent decisions confronting territorial status, however, the Court has vacillated between these two inconsistent positions, offering conflicting responses that I read as an effort to pick out whichever answer avoids grappling with thorny jurisprudential problems. Originalists have similarly invoked them offhandedly to blunt the challenge that territorial practice presents to formalist visions of the separation of powers. In my view, to settle these hard questions today, we will likely have to decide the legal, rather than historical, question of which of these historical understandings we think was correct. 

--Dan Ernst 

Farnia, "Imperialism and Black Dissent"

Stanford Law Review has published "Imperialism and Black Dissent," by Nina Farnia (Albany Law School). The abstract:

As U.S. imperialism expanded during the twentieth century, the modern national security state came into being and became a major force in the suppression of Black dissent. This Article reexamines the modern history of civil liberties law and policy and contends that Black Americans have historically had uneven access to the right to freedom of speech in the United States. Through archival research and legal analysis, I conduct four case studies that are representative of key trends in Black dissent after World War II: Black Communism, the Civil Rights Movement, the Black Power movement, and the Movement for Black Lives. These case studies illustrate how the modern national security state has affected the First Amendment right to freedom of speech and managed Black dissent in the United States, particularly when such speech is anti-imperialist or anticapitalist.

I argue that the modern national security state is one of the power structures undergirding free-speech jurisprudence. It operates in concert with free-speech colorblindness, a phenomenon I track in the final Part of this Article, to suppress domestic dissent by subordinated racial groups. The case studies suggest that the practical consequence of free-speech colorblindness is the narrowing of speech rights for Black dissenters and the overall containment of Black dissent.

Read on here. 

Readers interested in this topic may also wish to read Farnia's "Imperialism in the Making of U.S. Law," which we missed when it came out in 2022.

-- Karen Tani

Capozzolla to Discuss "Bound by War"

UNLV’s observance of Constitution Day is “a virtual/live discussion led by Christopher Capozzola on his book, Bound By War: How the United States and the Philippines Built America's First Century, on September 17, 2021, 4pm to 5:15pm (Pacific Time, we assume).  “The long and entwined military history of the United States and the Philippines has raised fundamental questions about the U.S. constitution. How have Americans and Filipinos debated that shared constitutional history, and how might it inform contemporary policy?”  Preregister and submit questions here.

--Dan Ernst

Miller and Stitz on Discovery Doctrine in East Africa

 Robert J. Miller and Olivia Stitz, Arizona State University Sandra Day O'Connor College of Law have posted The International Law of Colonialism in East Africa: Germany, England, and the Doctrine of Discovery:

The non-European, non-Christian world was colonized under international law that is known today as the Doctrine of Discovery. This common-law international Doctrine was codified into European international law at the Berlin Conference of 1884-85 and in the Berlin Act of 1885 specifically to partition and colonize Africa. Thirteen European countries and the United States attended the four month Conference and then thirteen countries signed the Berlin Act on February 26, 1885. Under the Discovery Doctrine and the Berlin Act, European countries claimed superior rights over African nations and Indigenous Peoples. When European explorers planted crosses, signed hundreds of treaties, and raised flags in many parts of Africa, they were making legal claims of ownership and domination over the native nations and peoples, and their lands and assets. These claims were justified in the fifteenth and in the nineteenth centuries by racial, ethnocentric, and religious ideas about the alleged superiority of European Christian nations. This Article examines the application of the Doctrine and the Berlin Act by England and Germany in East Africa, the area that now comprises Kenya, Uganda, and Tanzania. This comparative law analysis demonstrates convincingly that the Berlin Act and these colonizing countries applied what we define as the ten elements of the Doctrine of Discovery. These elements had been developed and refined by European legal and political systems since the mid-1400s. Over 400 years later, the Berlin Conference of 1884-85 expressly and implicitly adopted and codified all ten elements to control the European partition and colonization of Africa. Germany and England used this international law to colonize East Africa. Needless to say, European domination, exploitation, and colonization seriously injured the human, property, sovereign, and self-determination rights of Indigenous nations and peoples and still impacts them today. The comparative legal analysis set out in this Article will benefit readers to see more clearly how law affected and directed African colonization, and to develop a better understanding of the international law of colonialism, that historic process, the impacts of colonization, and why this knowledge is of crucial importance to us all.

--Dan Ernst

Van Hulle's "Britain and International Law in West Africa"

Inge Van Hulle, Tilburg University, has just published Britain and International Law in West Africa: The Practice of Empire (Oxford University Press).  The book appears in the OUP series, The History and Theory of International Law.  Here is the abstract:

Africa often remains neglected in studies that discuss the historical relationship between international law and imperialism during the nineteenth century. When it does feature, focus tends to be on the Scramble for Africa, and the treaties concluded between European powers and African polities in which sovereignty and territory were ceded. Drawing on a wide range of archival material, Inge Van Hulle brings a fresh new perspective to this traditional narrative. She reviews the use and creation of legal instruments that expanded or delineated the boundaries between British jurisdiction and African communities in West Africa, and uncovers the practicality and flexibility with which international legal discourse was employed in imperial contexts. This legal experimentation went beyond treaties of cession, and also encompassed commercial treaties, the abolition of the slave trade, extraterritoriality, and the use of force.

The book argues that, by the 1880s, the legal techniques that were fashioned in the language of international law in West Africa had largely developed their own substantive characteristics. Legal ordering was not done in reference to adjudication before Western courts or the writings of Western lawyers, but in reference to what was deemed politically expedient and practically feasible by imperial agents for the preservation of social peace, commercial interaction, and humanitarian agendas.

--Dan Ernst

Saxine, "Properties of Empire"

New York University Press has released Properties of Empire: Indians, Colonists, and Land Speculators on the New England Frontier (April 2019), by Ian Saxine (Bridgewater State University). A description from the Press:

Properties of Empire shows the dynamic relationship between Native and English systems of property on the turbulent edge of Britain’s empire, and how so many colonists came to believe their prosperity depended on acknowledging Indigenous land rights.

As absentee land speculators and hardscrabble colonists squabbled over conflicting visions for the frontier, Wabanaki Indians’ unity allowed them to forcefully project their own interpretations of often poorly remembered old land deeds and treaties. The result was the creation of a system of property in Maine that defied English law, and preserved Native power and territory. Eventually, ordinary colonists, dissident speculators, and grasping officials succeeded in undermining and finally destroying this arrangement, a process that took place in councils and courtrooms, in taverns and treaties, and on battlefields.

Properties of Empire challenges assumptions about the relationship between Indigenous and imperial property creation in early America, as well as the fixed nature of Indian “sales” of land, revealing the existence of a prolonged struggle to re-interpret seventeenth-century land transactions and treaties well into the eighteenth century. The ongoing struggle to construct a commonly agreed-upon culture of landownership shaped diplomacy, imperial administration, and matters of colonial law in powerful ways, and its legacy remains with us today.

A few blurbs:

"Properties of Empire clearly reflects the authors deep immersion and strong understanding of Wabanaki and Anglo-American social, and cultural patterns. A significant contribution to the field of Native-colonial relations." -- Daniel Mandell

"An intriguing, thought provoking, and important [book] that recognizes the importance of land issues in Indian Country today through close historical work on the ideologies that surround land ownership in previous centuries." -- Christopher Bilodeau

More information is available here.

-- Karen Tani

Fradera on citizens and subjects in four empires

In 2018, Josep M. Fradera, Pompeu Fabra University in Barcelona published The Imperial Nation: Citizens and Subjects in the British, French, Spanish, and American Empires with Princeton University Press. From the publisher:

Historians view the late eighteenth and early nineteenth centuries as a turning point when imperial monarchies collapsed and modern nations emerged. Treating this pivotal moment as a bridge rather than a break, The Imperial Nation offers a sweeping examination of four of these modern powers—Great Britain, France, Spain, and the United States—and asks how, after the great revolutionary cycle in Europe and America, the history of monarchical empires shaped these new nations. Josep Fradera explores this transition, paying particular attention to the relations between imperial centers and their sovereign territories and the constant and changing distinctions placed between citizens and subjects.

Fradera argues that the essential struggle that lasted from the Seven Years’ War to the twentieth century was over the governance of dispersed and varied peoples: each empire tried to ensure domination through subordinate representation or by denying any representation at all. The most common approach echoed Napoleon’s “special laws,” which allowed France to reinstate slavery in its Caribbean possessions. The Spanish and Portuguese constitutions adopted “specialness” in the 1830s; the United States used comparable guidelines to distinguish between states, territories, and Indian reservations; and the British similarly ruled their dominions and colonies. In all these empires, the mix of indigenous peoples, European-origin populations, slaves and indentured workers, immigrants, and unassimilated social groups led to unequal and hierarchical political relations. Fradera considers not only political and constitutional transformations but also their social underpinnings.

Presenting a fresh perspective on the ways in which nations descended and evolved from and throughout empires, The Imperial Nation highlights the ramifications of this entangled history for the subjects who lived in its shadows.

In praise of the book: 

“Prodigious and stimulating, The Imperial Nation reveals the complexities of the relationship between empire and nation in the Atlantic world from the late eighteenth century into the twentieth. This impressive and vigorously argued book will be the focal point of scholarly debate for some time to come.” - Frederick Cooper

“Superb, important, and complex, this book compares and analyzes the British, Spanish, French, and American empires between 1750 and 1920: how they adopted constitutions, treated different populations, and viewed the construction of the state in an imperial context. With its revolutionary arguments, The Imperial Nation will help historians understand the complex social and ethnic battles of the past two centuries. An amazing book by an original and brilliant historian.” - Antonio Feros

Further information is available here. 

-Mitra Sharafi