They say I am not an American… : The Noncitizen National and the Law of American Empire

The American papers sometimes contain tales about persons who have forgotten who they are, what are their names, and where they live. The Porto [sic] Ricans find themselves in the same predicament as those absent-minded people. To what nationality do they belong? What is the character of their citizenship? ... [l]f since they ceased to be Spanish citizens they have not been Americans [sic] citizens, what in the name ·of heaven have they been

\u3ci\u3eUntied\u3c/i\u3e States: American Expansion and Territorial Deannexation

At the beginning of the twentieth century the United States laid claim to an overseas empire, consolidating its victory in the Spanish-American War by adopting novel structures of colonial rule over a brace of newly acquired island territories. A set of Supreme Court decisions known collectively as the Insular Cases established the legal authorization for this undertaking. As the traditional story goes, they did so by holding that the U.S. Constitution did not follow the flag to the recently annexed possessions in the Pacific Ocean and the Caribbean Sea: thus unfettered, an ambitiously imperial nation could attend to the business of governing outre-mer peoples and places without undue attention to the republican niceties that obtained on native soil. This Article argues that this reading of the Insular Cases is fundamentally wrong. That the cases inaugurated an American empire cannot be denied. But they did not do so by creating a Constitution-free zone under U.S. sovereignty. Instead, the epochal significance of the cases lies in their careful creation of a new kind of U.S. territory: a domestic territory that could be governed temporarily, and then later, if necessary, be relinquished. This was no small mailer for Americans contemplating a global demesne, since the Civil War had, not so long before, inscribed in blood the indivisibility of the Union; in the Insular Cases, the Supreme Court ensured that this costly principle would not bind America to its colonial periphery. In sum, the Insular Cases installed a doctrine of territorial deannexation in American constitutional jurisprudence, and in doing so they created the conditions of possibility for an American experiment with colonial governance. The experiment was not, finally, an unqualified success, but the Insular Cases remain good law, shaping life for more than four million U.S. citizens in Puerto Rico and the other remaining nonstate possessions, and doing service in recent cases dealing with the extraterritorial applicability of the Constitution. In view of this durable legacy, a properly revised understanding of the Insular Cases is essential

\u3ci\u3eUntied\u3c/i\u3e States: American Expansion and Territorial Deannexation

At the beginning of the twentieth century the United States laid claim to an overseas empire, consolidating its victory in the Spanish-American War by adopting novel structures of colonial rule over a brace of newly acquired island territories. A set of Supreme Court decisions known collectively as the Insular Cases established the legal authorization for this undertaking. As the traditional story goes, they did so by holding that the U.S. Constitution did not follow the flag to the recently annexed possessions in the Pacific Ocean and the Caribbean Sea: thus unfettered, an ambitiously imperial nation could attend to the business of governing outre-mer peoples and places without undue attention to the republican niceties that obtained on native soil. This Article argues that this reading of the Insular Cases is fundamentally wrong. That the cases inaugurated an American empire cannot be denied. But they did not do so by creating a Constitution-free zone under U.S. sovereignty. Instead, the epochal significance of the cases lies in their careful creation of a new kind of U.S. territory: a domestic territory that could be governed temporarily, and then later, if necessary, be relinquished. This was no small mailer for Americans contemplating a global demesne, since the Civil War had, not so long before, inscribed in blood the indivisibility of the Union; in the Insular Cases, the Supreme Court ensured that this costly principle would not bind America to its colonial periphery. In sum, the Insular Cases installed a doctrine of territorial deannexation in American constitutional jurisprudence, and in doing so they created the conditions of possibility for an American experiment with colonial governance. The experiment was not, finally, an unqualified success, but the Insular Cases remain good law, shaping life for more than four million U.S. citizens in Puerto Rico and the other remaining nonstate possessions, and doing service in recent cases dealing with the extraterritorial applicability of the Constitution. In view of this durable legacy, a properly revised understanding of the Insular Cases is essential

A Convenient Constitution? Extraterritoriality After \u3ci\u3eBoumediene\u3c/i\u3e

Questions concerning the extraterritorial applicability of the Constitution have come to the fore during the war on terror. In Boumediene v. Bush, the Supreme Court held that noncitizens detained in Guantánamo have the right to challenge their detention in federal court. To reach this conclusion, the Court used the impracticable and anomalous test, also known as the \u27functional approach because of its reliance on pragmatic or consequentialist considerations. The test first appeared in a concurring opinion over fifty years ago; in Boumediene, it garnered the votes of a majority. This Article argues that the Boumediene Court was right to hold habeas rights applicable in Guantánamo, but wrong to endorse the impracticable and anomalous test. The test rests on a view of the Constitution abroad that overemphasizes the difference between the foreign and the domestic, improperly relegating constitutional guarantees abroad to afar more uncertain status than they have at home. Although the opinions developing the test pay lip service to the idea that the Constitution has force outside the United States, they undermine that proposition by determining whether constitutional guarantees apply extraterritorially based on pragmatic grounds alone – that is, by asking whether it would be impracticable and/or anomalous to apply them. In response, this Article argues that courts dealing with questions of constitutional extraterritoriality should distinguish between two questions: that of whether a constitutional guarantee applies in a given circumstance, and that of how an applicable guarantee may be enforced. Pragmatic factors come into play at the second stage. Illustrating the point by comparing the cases on constitutional extraterritoriality to those on Fourteenth Amendment incorporation, this Article argues that courts addressing questions of constitutional extraterritoriality should look to the Fourteenth Amendment cases for guidance on the distinction between the whether and how questions. Only when consequentialist concerns enter the analysis at the proper stage will governmental action abroad be adequately restrained

A Convenient Constitution? Extraterritoriality After \u3ci\u3eBoumediene\u3c/i\u3e

Questions concerning the extraterritorial applicability of the Constitution have come to the fore during the war on terror. In Boumediene v. Bush, the Supreme Court held that noncitizens detained in Guantánamo have the right to challenge their detention in federal court. To reach this conclusion, the Court used the impracticable and anomalous test, also known as the \u27functional approach because of its reliance on pragmatic or consequentialist considerations. The test first appeared in a concurring opinion over fifty years ago; in Boumediene, it garnered the votes of a majority. This Article argues that the Boumediene Court was right to hold habeas rights applicable in Guantánamo, but wrong to endorse the impracticable and anomalous test. The test rests on a view of the Constitution abroad that overemphasizes the difference between the foreign and the domestic, improperly relegating constitutional guarantees abroad to afar more uncertain status than they have at home. Although the opinions developing the test pay lip service to the idea that the Constitution has force outside the United States, they undermine that proposition by determining whether constitutional guarantees apply extraterritorially based on pragmatic grounds alone – that is, by asking whether it would be impracticable and/or anomalous to apply them. In response, this Article argues that courts dealing with questions of constitutional extraterritoriality should distinguish between two questions: that of whether a constitutional guarantee applies in a given circumstance, and that of how an applicable guarantee may be enforced. Pragmatic factors come into play at the second stage. Illustrating the point by comparing the cases on constitutional extraterritoriality to those on Fourteenth Amendment incorporation, this Article argues that courts addressing questions of constitutional extraterritoriality should look to the Fourteenth Amendment cases for guidance on the distinction between the whether and how questions. Only when consequentialist concerns enter the analysis at the proper stage will governmental action abroad be adequately restrained

They say I am not an American… : The Noncitizen National and the Law of American Empire

The American papers sometimes contain tales about persons who have forgotten who they are, what are their names, and where they live. The Porto [sic] Ricans find themselves in the same predicament as those absent-minded people. To what nationality do they belong? What is the character of their citizenship? ... [l]f since they ceased to be Spanish citizens they have not been Americans [sic] citizens, what in the name ·of heaven have they been

Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution

In this groundbreaking study of American imperialism, leading legal scholars address the problem of the U.S. territories. Foreign in a Domestic Sense will redefine the boundaries of constitutional scholarship. More than four million U.S. citizens currently live in five “unincorporated” U.S. territories. The inhabitants of these vestiges of an American empire are denied full representation in Congress and cannot vote in presidential elections. Focusing on Puerto Rico, the largest and most populous of the territories, Foreign in a Domestic Sense sheds much-needed light on the United States’ unfinished colonial experiment and its legacy of racially rooted imperialism, while insisting on the centrality of these “marginal” regions in any serious treatment of American constitutional history. For one hundred years, Puerto Ricans have struggled to define their place in a nation that neither wants them nor wants to let them go. They are caught in a debate too politicized to yield meaningful answers. Meanwhile, doubts concerning the constitutionality of keeping colonies have languished on the margins of mainstream scholarship, overlooked by scholars outside the island and ignored by the nation at large. This book does more than simply fill a glaring omission in the study of race, cultural identity, and the Constitution; it also makes a crucial contribution to the study of American federalism, serves as a foundation for substantive debate on Puerto Rico’s status, and meets an urgent need for dialogue on territorial status between the mainland and the territories.https://scholarship.law.columbia.edu/books/1253/thumbnail.jp