The Constitution of Empire offers a constitutional and historical survey of American territorial expansion from the founding era to the present day. The authors describe the Constitution’s design for territorial acquisition and governance and examine the ways in which practice over the past two hundred years has diverged from that original vision.
Noting that most of America’s territorial acquisitionsincluding the Louisiana Purchase, the Alaska Purchase, and the territory acquired after the Mexican-American and Spanish-American Warsresulted from treaties, the authors elaborate a Jeffersonian-based theory of the federal treaty power and assess American territorial acquisitions from this perspective. They find that at least one American acquisition of territory and many of the basic institutions of territorial governance have no constitutional foundation, and they explore the often-strange paths that constitutional law has traveled to permit such deviations from the Constitution’s original meaning.
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The Constitution of EmpireTerritorial expansion and American Legal History
By Gary Lawson Guy Seidman
Yale University PressCopyright © 2004 Yale University
All right reserved.
Chapter OneFundamentals: Lessons from Louisiana
The story of the Louisiana Purchase has been often told. In large measure, it is a story of simple expansionism: "because it's there" is a tempting (even if ultimately inadequate) explanation for most any American territorial acquisition. In the case of the Louisiana Purchase, however, the key plot elements were trade and navigation.
The eastern portion of the United States in the late eighteenth century had ready access to the Atlantic Ocean. The territory west of the Allegheny Mountains did not. As late as 1817, a trip from Cincinnati to New York took at least fifty days, while a trip from Liverpool to New York took only forty. Overland transportation costs were correspondingly, and often prohibitively, high. For the region west of the Alleghenies, river transport was essential to economic development. And for anything other than local traffic, the heart of the transportation system was the Mississippi River.
Under the 1783 Treaty of Peace with Great Britain, the Mississippi River marked the western boundary of the United States. From its source in Minnesota, the MississippiRiver runs south along the present-day states of Minnesota, Wisconsin, Iowa, Illinois, Missouri, Kentucky, Tennessee, Arkansas, Mississippi, and Louisiana. Along the way, it intersects a host of other important midwestern and mideastern rivers, most notably the Ohio River, which runs from eastern Pennsylvania along the Ohio/West Virginia, Ohio/ Kentucky, and Indiana/Kentucky borders. When one adds to the mix the tributaries that feed these rivers, it is no wonder that James Madison described the Mississippi River as in the eyes of westerners "the Hudson, the Delaware, the Potomac, and all the navigable rivers of the Atlantic states, formed into one stream."
The Mississippi River empties into the Gulf of Mexico in southern Louisiana. In the late eighteenth century, Louisiana belonged to Spain, as did most of the present-day United States west of the Mississippi River. Americans, as the owners of a good portion of the east bank of the Mississippi River, had joint navigation rights with Spain over much of the river's length. But "on its last two hundred miles or so, Spain controlled both banks.... No one, therefore, could navigate the lower Mississippi any more than one could travel by land across Spanish territory, without permission from Spain." In addition, Spain owned East and West Florida, which encompassed the present state of Florida plus a strip extending from the Florida Panhandle through present-day Alabama and Mississippi all the way to the Mississippi River. This meant that literally all of the land, and therefore all of the river mouths, on the Gulf of Mexico was in Spanish territory. Spain thus controlled ocean access for virtually all of the rivers in the American West and Southeast: the Pearl and Pascagoula Rivers in present-day Mississippi, the Tombigbee River in Mississippi and Alabama, the Alabama River in Alabama, the Apalachicola River system, which includes the Chatahoochee, that runs along the Georgia/ Alabama border, and the Flint, which flows through Georgia. As Henry Adams described the situation: "From the mouth of the St. Mary's, southward and westward, the shores of Florida, Louisiana, Texas, and Mexico were Spanish; Pensacola, Mobile, and New Orleans closed all the rivers by which the United States could reach the gulf. The valley of the Ohio itself, as far as Pittsburgh, was at the mercy of the King of Spain; the flour and tobacco that floated down the Mississippi, or any of the rivers that fell into the Gulf, passed under the Spanish flag, and could reach a market only by permission of Don Carlos IV."
During this time, the United States, as an upstream owner of the rivers, had a plausible argument at international law that it had navigational rights extending to the sea; the Spanish governor of West Florida even seemed to accept this argument in 1808. In any event, the right to navigation on the Mississippi River was resolved by agreement between Spain and the United States after 1788 and then finalized in the Treaty of San Lorenzo, which was signed on October 27, 1795, and ratified on April 25, 1796. The Treaty of San Lorenzo, in addition to guaranteeing American navigational rights on the Mississippi River in Article IV, declared in Article XXII that Spain "will permit the citizens of the United States for the space of three years from this time to deposit their merchandizes and effects in the port of New Orleans, and to export them from thence without paying any other duty than a fair price for the hire of the stores, and his Majesty promises either to continue this permission if he finds during that time that it is not prejudicial to the interests of Spain, or if he should not agree to continue it there, he will assign to them, on another part of the banks of the Mississippi, an equivalent establishment." This right to store goods on land duty-free pending their shipment was known as the "right of deposit." The right of deposit obviated the need to load goods sent down the Mississippi immediately onto shipping vessels or to store them on riverboats until they could find transportation.
On October 18, 1802, acting on secret orders from the Spanish court that were unknown even to the governor of Louisiana, the Spanish intendant of Louisiana-a colonial fiscal officer whose primary responsibilities involved customs matters-terminated the right of deposit at New Orleans. Spain did not, under the terms of Article XXII of the Treaty of San Lorenzo, "assign ..., on another part of the banks of the Mississippi, an equivalent establishment" of a right of deposit, and the closure thus appeared to be palpably unlawful. Although the Mississippi River remained open to Americans, and the closure of the deposit probably had few actual effects on traffic, the closure created such a stir that it seriously threatened war between the United States and Spain. After vigorous American protests, the Spanish officials, many of whom were as surprised by the action as were the Americans, relented and restored the right of deposit in New Orleans on May 17, 1802.
At least some founding-era Americans had had their eyes on the territory to the south and west of their borders for quite some time, but these events on the Mississippi River intensified the pressure to acquire the port of New Orleans and/or other access to the Gulf of Mexico. One option, which had plenty of adherents in the early 1800s, was a straightforward war of acquisition. A less dramatic, and perhaps cheaper, option was to attempt to purchase New Orleans and the Floridas from Spain. New Orleans, however, had already found a new owner.
Spain had originally acquired the Louisiana Territory from France in 1762. French negotiators had actively sought to reacquire it at least since 1795, and on October 1, 1800, in the Treaty of San Ildefonso, Spain agreed to give it back in exchange for Napoleon's setting up the king of Spain's son-in-law as king of Tuscany. This was not necessarily a bad deal for Spain: the costs of maintaining Louisiana as a colony exceeded any plausible financial benefits; the king of Spain thought that he had "traded the 'vast wilderness of the Mississippi and of the Missouri' for Tuscany, the flower of Italy, 'the beautiful and learned home of Galileo, of Dante, or Petrarch"'; and Spain was, in any event, in no condition to stand up to Napoleon. The French, however, did not actually carry through their part of the bargain, and the king of Spain did not formally order the transfer of Louisiana to France until October 15, 1802. Even then, Spain conditioned the transfer on a promise from France not to alienate Louisiana after taking dominion, a condition to which Napoleon agreed.
Because the Treaty of San Ildefonso was kept secret, and because French possession of Louisiana was delayed by bickering over performance and by a slave revolt in Santo Domingo (now Haiti) that drained off many French troops, no one in America could be certain until 1802 that a transfer had taken place. But France's ambitions on the North American continent were not a secret, and rumors of a transfer of Louisiana to France circulated even before the Treaty of San Ildefonso was signed. By March 1802, copies of the treaty were published in American newspapers. Although France did not then occupy Louisiana, and indeed officially continued to deny that it owned Louisiana at all for a considerable time after the treaty was signed, the United States began inquiring about a possible purchase of New Orleans (and the Floridas as well, if France had acquired them). After several months of maneuvering, France offered and the United States negotiators accepted the sale of the territory that France had acquired in the Treaty of San Ildefonso, which the latter treaty defined as "Louisiana with the Same extent that is now in the hands of Spain, & that it had when France possessed it; and Such as it Should be after the Treaties subsequently entered into between Spain and other States."
This territory included at least enough land to double the area of the United States. It unambiguously encompassed all or major parts of the present states of Louisiana, Arkansas, Missouri, Iowa, Minnesota, North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, Colorado, Wyoming, and Montana; and it was argued at various times-with, as we shall see, varying degrees of plausibility-to include Texas (along with parts of Oklahoma, New Mexico, and Colorado), pieces of Mississippi, Alabama, and Florida, and even the Pacific Northwest. The treaty was actually signed in early May 1803, but the signatures were backdated to April 30, 1803. Ratifications were exchanged on October 20, 1803.
Apart from the rather vague specification of the boundaries of the acquired territory, to which we will later attend, there were two potential problems with this purchase: it was unclear whether France had the power to sell Louisiana and it was unclear whether the United States had the power to buy it. As for the former problem, France had not actually fulfilled the conditions set forth in the Treaty of San Ildefonso, and it had explicitly promised Spain not to alienate Louisiana, either of which would call into question France's title to the territory. President Jefferson, however, regarded these as problems for France and Spain to work out, and Spain dropped its objections. Had Spain not relented, it is unclear why that would not have been America's problem as well; if Spain still owned Louisiana, France had nothing to sell. The more pertinent problem from our standpoint, however, concerns the power of the United States to acquire Louisiana. That problem raises profound questions of American constitutional law, to which we will now turn.
The Constitution and Acquisitions
There were moments when President Jefferson doubted the ability of the United States to acquire Louisiana. The Constitution does not contain an express "Territorial Acquisition Clause." This fact did not escape Jefferson's notice. In an 1803 letter to John Dickinson, Jefferson stated that "[t]he general government has no powers but such as the constitution has given it; and it has not given it a power of holding foreign territory, and still less of incorporating it into the Union. An amendment of the Constitution seems necessary for this." Jefferson expressed this view repeatedly during the summer of 1803 and even floated for discussion a number of proposed constitutional amendments to authorize the acquisition, although at other points he seemed to assume that the Constitution permitted territorial acquisitions. In the end, of course, Jefferson and others who had doubts about the nation's constitutional power to acquire Louisiana either swallowed those doubts or had them buried at the bottom of the Gulf of Mexico.
In 1828, a quarter-century after the Louisiana Purchase became a fact of national life, Chief Justice John Marshall declared for a unanimous Supreme Court that "[t]he Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or treaty." But a search for constitutional meaning cannot take even late-eighteenth-century or early-nineteenth-century understandings as givens. It is worth asking, if only as a historical matter, whether and in what fashion the Constitution permits the United States to expand its territory.
Chief Justice Marshall located the source of his assumed power of acquisition in the war powers ("by conquest") and the treaty power ("or treaty"). Because the Jefferson Administration engineered the Louisiana Purchase and not the Louisiana Conquest, the events of 1803 do not implicate the constitutional propriety of conquest as a mode of territorial acquisition. Subsequent nineteenth-century events, of course, raise that issue with a vengeance, and we will in due time address the extent to which the Constitution permits the conquest of territory. Similarly, we will later address the extent to which the United States can constitutionally acquire territory through discovery. But as far as the Louisiana Purchase is concerned, the proper focus of attention would seem to be the treaty power.
That assumption proves to be correct, at least in part: the treaty power was an essential tool in the acquisition of Louisiana. A number of participants in the debates concerning the Louisiana Purchase in 1803, however, sought to ground the acquisition in other sources of constitutional power. It is worth-while to consider those sources as well, if only to clear the air for a detailed examination of the federal treaty power.
Acquisitions and Enumerations
Several members of Congress, in discussing ratification and implementation of the treaty for the acquisition of Louisiana, maintained that acquisition of territory is a necessary incident of sovereignty and therefore requires no specific constitutional authorization. For instance, Representative Samuel Latham Mitchill argued that a power of territorial expansion is "inherent in independent nations." Representative Thomas Sandford similarly argued that because the Constitution does not affirmatively exclude a power to acquire property, such a power "must be considered as possessed by Government." Representative John Smilie considered "a right of annexing territory incidental to all Governments," and the power was accordingly "vested in some department of Government in the United States." A similar argument was advanced by Senator John Taylor, who suggested that "[n]either the means nor the right of acquiring territory are forbidden to the United States."
Presented this baldly, the argument fundamentally misunderstands the Constitution and the very concept of a limited government. The distinctive genius of the American Constitution is the idea, clearly codified in the Tenth Amendment, that every exercise of national power must be traceable to an explicit or implicit grant of power in the document. On this understanding, it is entirely possible for all other governments in the world to possess certain powers and prerogatives that are not possessed by the United States. As Representative Samuel Thatcher correctly said in response to Mr. Sandford, "the only sound doctrine is, not that which has been stated by the gentleman from Kentucky (Mr. SANFORD,) that whatever power is not prohibited by the Constitution is agreeable to it, but that such powers as are not given are still held by the States or the people. No arguments have been addressed to prove that the Constitution delegates such a power."
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Table of Contents
Introduction: From Sea to Shining Sea ... and Beyond....................1
Part I. Acquiring Territory 1. Fundamentals: Lessons from Louisiana....................17
2. Forms: Trouble with Texas?....................86
3. Limits: Conquest and Colonialism....................103
Part II. Governing Territory 4. Constitutional Architecture I: Territorial Legislatures and Executives....................121
5. Constitutional Architecture II: Territorial Courts....................139
6. War and Peace: Military Occupation and Governance....................151
7. Bulwark or Façade? The Rights of Territorial Inhabitants....................188
Conclusion: Imperial Reflections....................202