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After the treaty of Guadalupe Hidalgo, the California military government created by the president continued to function. Congress failed to establish a territorial government, and the Supreme Court upheld the constitutionality of the military government in Cross v. Harrison How can such dereliction of constitutional duty, as it appears to the authors, be explained?

The theory of original meaning they have adopted considers constitutional text, linguistic usages, historical context, and background understandings. Orthodox constitutional theory considers the same things, but constitutional interpreters acting within the system, far more than Lawson and Seidman, take into account the political horizon in which constitutional government exists. As distinguished from academic theorists, constitutional actors required to engage in the activity of interpretation are under an obligation to consider the particular elements of a constitutional controversy from the standpoint of practical reason.

Consider the Louisiana Purchase, the foundational act of territorial expansion. Lawson and Seidman state that acquisition of territory is constitutionally warranted as an exercise of the treaty power, considered as a means of implementing a textually enumerated power, such as the admission of new states. In other words, territorial acquisition is not an incident of sovereignty that all governments possess, as many lawmakers argued at the time. The theory of original meaning on which this book rests departs from orthodox interpretive practice in a second basic respect as well.

Lawson and Seidman employ a cognitive-normative distinction that is disconfirmed by the historical experience of constitution making and interpretation. In this view, constitutional interpretation as an intellectual activity and practical reason as the end of political deliberation are unrelated matters.

Lawson and Seidman acknowledge that a critical question in constitution making is the relative risk of granting too much or too little power to government. This book is an impressive piece of scholarship that demonstrates the intellectual resourcefulness of the tradition of textual constitutionalism.

Louisiana Purchase

There is, however, another tradition to which a constitutionalist may be dedicated: that of the statesman and the citizen who are obliged to determine constitutional meaning under the discipline of practical reason. Considered from this point of view, the cognitive and normative dimensions of constitutional construction are inseparable: a constitution is intrinsically normative, or it is not really a constitution. From this perspective, the genius of the Constitution may be said to lie in its recognition of the nature, conditions, and requirements of political life.

The constitution of a well-ordered polity defines and limits the exercise of state power. On account of this definition and limitation, forceful and effective government can exist. The authority and power that subsist in political life manifest themselves in the world, whether or not formally recognized in a textually explicit or implicit grant of power.

A constitutional document that takes into account the subsistent reality of authority participates more effectively in the ordering of political life to the end of human flourishing. In The Constitution of Empire, a fundamental distinction exists between the internal government of a political community and its external relations with other communities. Torruella , E. Robert Statham , Gerald L.

Neuman, Angel R. Smith, E.

Constitution of Empire: Territorial Expansion and American Legal History - Yale Scholarship

Robert Statham Jr. Sparrow , H-Net Reviews. Furthermore, the selections are balanced by the somber writings of five US Federal justices and ex-attorneys general plus ten Constitutional law scholars. Necessary for advanced undergraduates, graduate students, and others working on this important problem.

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Will , Choice. Navy should be allowed to continue on the Puerto Rican island of Vieques, another set of viewpoints to consider. Acomb , NationalJournal. Christina Duffy Burnett is a law clerk in the U. Burke Marshall is Nicholas deB. Katzenbach Professor of Law and George W.

Department of Justice from — and is the author of Federalism and Civil Rights. Bk Cover Image Full. The Guano Islands Act of arguably laid the legal groundwork for American imperialism. Basically what happened was that in the first half of the nineteenth century, Europeans and Latin Americans figure out that the phosphate-rich deposits of seabird droppings that had accumulated on many small Pacific islands make spectacular fertilizer.

The stuff is like magic, and farmers everywhere are suddenly clamoring to get their hands on some. Enter the US farm lobby. Farmers in the United States start pressuring Congress to pass some sort of legislation that will improve domestic access to this vital excrement. The result is the Guano Islands Act, legislation that authorized the United States to take control of a guano island if a citizen discovered it and undertook certain actions to take possession of it.

What was new about that? In a way, yes. But in another way, not exactly. The history of US territorial expansion is actually very interesting, and not straightforward, legally speaking.

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As you know, initially there were those original thirteen colonies. When the newly independent states came together to form a union, and to write a constitution, they spent a certain amount of time trying to sort out how the territories were going to fit into the new nation. Hanging over all these negotiations was this broadly shared notion that the United States were destined to expand—indeed, that this emerging polity was likely, eventually, to extend across the continent.

To be fair, not absolutely everybody was on board with this, but we are painting with a broad brush here. At any rate, the future of the territories eventually became clear: they were going to become states someday, once there was a proper population, sufficient political organization, etc. Interestingly, no.

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And this famously worried Thomas Jefferson circa when the French government offered him something like a third of North America at a fire-sale price—what would eventually be called the Louisiana Purchase. But then he gets cold feet and sticks the draft in a drawer. That can happen when you become President. That process of territorial acquisition continues throughout the nineteenth century.

How is territorial expansion out to islands any different? The answer brings us back around to that thousand-page treatise sleeping in the bowels of the State Department. The key difference has to do with sovereignty. It turns out that there was quite a bit of debate around the passage of the Guano Islands Act. The whole thing made a few people pretty nervous. Was all this, they wondered, some sort of secret plot to start setting up overseas island colonies?

Or, rather, no one had any idea. At some point I even tried to sort out where the drafters of the bill got it from. It was basically a fudge.

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  • A way of taking the places as possessions , while being careful not to call them territories , since that implied constitutional entanglements. It was a way of taking the places without really taking responsibility for them within the federal system. And finally, to get the bill to pass, they also stuck in a bit about how the United States could get rid of the places if it wanted—that there was no commitment to hang onto these islands after the resources had been stripped or their utility otherwise terminated.

    It does, and boom, there are all these wildcatters and roughnecks throwing up the Stars and Stripes on little mounds of manure all over the world. In the end, more than seventy such islands are actually secured under the act, and many more are claimed unsuccessfully, for one reason or another. Some of the islands are still claimed by various shady types. Indeed, a rather mysterious gentleman contacted me some years ago in connection with his alleged title to an uninhabited guano island in the Caribbean. A weird sort of non-place, from a constitutional perspective.

    What law applies there? Not really so clear. What rights does an American citizen have on such an island? Again, not clear. And in certain disconcerting ways, we see the same move being made more recently in connection with the war on terror: extend power, but disclaim sovereignty—in order to retrench in terms of legal commitments. So this is what you mean by saying that the Guano Islands Act established a significant aspect of the legal framework for American imperialism.

    We tend to think of empires in expansive terms, as projecting across space, but in fact, as far as the law is concerned, the projection of imperial power has frequently traded on the careful refusal to extend formal sovereignty, since this often comes with unpleasant obligations.