Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law

By Kal Raustiala | Go to book overview

2
TERRITORY AND THE REPUBLIC

The American Revolution birthed a new nation that, although small and weak, would eventually come to dominate world politics. The events of 1776 foreshadowed a range of future rebellions by peoples who chafed under imperialism and sought ultimately to control their own political destiny. In North America, as in the many independence movements since, the rebels aimed to do so by claiming and defending a distinct territory and declaring themselves a new state.

The American Revolution was unusual, however, in that the new United States did not simply occupy territory that had been previously ruled by an existing Westphalian sovereign. The United States was instead surrounded by a vast expanse of land largely ungoverned (in the view of Europeans) by any other political entity. The nation began as thirteen colonies on the Atlantic coast, but over the next two centuries it enlarged its territory dramatically through a combination of conquest, purchase, and treaty. This story is central to American history, and the “extraordinary geographic expansion of the United States is critical to understanding the rise of the nation as a world power and global empire.”1

This chapter explores how the concept of territoriality was manifested and interpreted in early American law. The founding generation “was intensely interested in the geographic extent of the American polity.”2 How was this intense interest manifested? In what ways were established ideas about Westphalian territoriality reflected in the new Constitution? What legal questions did geographic expansion raise? In short, this chapter explores how eighteenth- and early-nineteenth-century Americans understood and interpreted the links between sovereignty and soil.

For several reasons the United States is particularly interesting in this regard. Federalism entails a central distinction between state and federal

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Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law
Table of contents

Table of contents

  • Title Page iii
  • Preface v
  • Acknowledgments ix
  • Contents xi
  • 1 - Territoriality in American Law 3
  • 2 - Territory and the Republic 31
  • 3 - The Imperial Constitution 59
  • 4 - The Fall and Rise of Extraterritoriality 93
  • 5 - America Abroad 127
  • 6 - The Long Arm of the Law 157
  • 7 - Offshoring the War on Terror 187
  • 8 - Territoriality's Evolution 223
  • Notes 249
  • Index 301
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