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

By Kal Raustiala | Go to book overview

8
TERRITORIALITY'S EVOLUTION

At the turn of the last century Americans heatedly debated whether their constitution followed the flag. Did the United States possess a “home-stayin’ constitution,” as the satirist Finley Peter Dunne suggested at the time, or did its foundational rules extend wherever and whenever the federal government governed? Perhaps the newly muscular nature of American power in an overtly imperial age had changed the answer; perhaps the flag was now, in Dunne's clever words, “so lively that no constitution could follow it and survive.”1 In the century that followed, of course, the flag became livelier than anyone at the time could have imagined.

With the presidential election of 1900 couched as a referendum on the Constitution and the flag, the victory of William McKinley over the anticolonial William Jennings Bryan signaled a new American willingness to embrace empire in places like the Philippines. McKinley's campaign had declaimed that the flag “has not been planted in foreign soil to acquire more territory, but for humanity's sake.” McKinley nonetheless did not disappoint the substantial interests that favored more territory. The subsequent ratification by the Supreme Court of a peculiarly American form of imperialism facilitated this expansion. Yet by holding that only some rights applied in the new island possessions, whereas others lost their strength at the water's edge, the early-twentieth-century Insular Cases cobbled together an odd and unstable marriage of imperialism and constitutionalism.

Although it deeply polarized the United States at the time, this debate over the Constitution and the flag is now largely forgotten. Yet as the previous chapter detailed, a very similar debate emerged almost exactly a century later. Whether Guantanamo Bay was a “legal black hole” or a legitimate detention center for dangerous enemy combatants became

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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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