Empire and the Reconstruction Constitution: Legal Change beyond the Courts



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Empire and the Reconstruction Constitution: Legal Change beyond the Courts

Sam Erman


Across 1898-1900, a sea change in constitutional thought made itself felt on Puerto Rican shores. When U.S. troops invaded the island as part of a war with Spain that would end with U.S. sovereignty extending there as well as over Hawai‘i, Guam, and the Philippines, U.S. military commanders subscribed to the common belief that the Civil War settlement would determine Puerto Rican status, rights, and governance. On this view, the Fourteenth Amendment guaranteed acquired peoples U.S. citizenship with associated “privileges” and “immunities,” the Civil War forbade deannexation, and Dred Scott holdings that that had survived war and amendment demanded that even U.S. “colonies” one day become states. Governance, many presumed, would follow traditional territorial models. Twenty months later, the War Department and political branches responsible for administering Puerto Rico had vindicated none of these consequences of annexation. Instead, they claimed and asked the Supreme Court to countenance flexibility for themselves in determining the status, rights, and governance of new acquisitions. The shift followed concerns that extending such benefits to Filipinos would degrade the U.S. body politic with what officials deemed to be a large and racially degraded people. The Reconstruction Constitution of yesteryear, they insisted, should and would give way to the Imperial Constitution of tomorrow.

Through close attention to the words and deeds of those responsible for governing Puerto Rico, this Essay seeks to describe the substance and process of U.S. constitutional change on an issue a contemporary perceived “led to a bitterness which almost threatened to resemble the controversies over the Fugitive Slave Law and the Missouri Compromise.”1 As that phrasing suggests, the constitutional conflict over whether imperial expansion could be squared with the consequences of emancipation long predated U.S. invasion of Puerto Rico. Tellingly, the U.S. imperial turn that brought Puerto Rico into the U.S. empire-state also ended what was the longest lull to date in U.S. expansion. Following ratification of the Fourteenth Amendment (1868), the United States had ceased acquiring new territories for nearly three decades. Opportunities to annex the Dominican Republic and Hawai‘i respectively floundered in 1870 and 1893 in the face of fears that U.S. citizenship, consequential constitutional rights, and eventual statehood for ostensible racial inferiors would result.2 When the political branches finally annexed Hawai’i in 1898, looming war with Spain and a concerted campaign to cast leading Hawai‘ians as essentially white animated the effort.3 Consistent with anti-expansionists’ fears as to what the Reconstruction Constitution required, Hawai‘ians received U.S. citizenship, traditional territorial governance, rapid recognition as a state-to-be, and the constitutional rights of prior territorial residents.4 The legal legacy of the Civil War thus remained as a significant impediment to any future attempts to acquire permanent colonies in lieu of states in waiting.

In 1898, Reconstruction had not yet fully given way to white supremacy – at least in the white imagination. White-supremacist Democrats were still in the midst of implementing racial caste across the U.S. South through Jim Crow and state-constitutional disfranchisement.5 Still seeking a national consensus that Reconstruction had been a tragic error and not yet certain that Reconstruction had been irreversibly vanquished,6 many opposed federal imperial rule on the ground that it revived the “evils” of Reconstruction. Also unwilling to welcome purported racial inferiors into the national family, these anti-imperialist Democrats favored releasing the Philippines and thereby avoiding the choice between racism and regionalism. To make the case, they argued that the Reconstruction Amendments that they had long sought to circumvent now governed and doomed Republicans’ imperial experiment.

Republican administrators and lawmakers divided over how to relate empire to what the Civil War had wrought. Some accelerated their party’s ongoing retreat from Reconstruction by stressing the supposed racial inferiority of acquired peoples as reasons to deny them status, rights, and home rule.7 Others rejected any hint of equivalence between dismantling Reconstruction and instituting imperial governance. In both cases, those whose party had long criticized Democratic violations of the Fourteenth and Fifteenth Amendments now insisted that those authorities little limited federal officials in governing new acquisitions. Able to put those views into practice as members of the national majority party, these nonjudicial officials worked what opponents and allies alike recognized as a revolution in constitutional thought and practice. They met legal-political expectations that acquisition heralded inclusion and membership with visions of a Constitution amenable to imperial governance.

In a reflection of the capacity of empire to confound partisan divisions over Reconstruction, the Supreme Court constituted the most likely guarantor of the legal legacy of Reconstruction that nonjudicial Republican officials now sought to escape. With a majority of its members appointed by prior Republican administrations, the Court was the product of an earlier generation of partisan alignments.8 An institution structured always to be somewhat out of time, it was an open question whether the justices would enforce the Reconstruction Constitution to the detriment of empire.9

As I have argued elsewhere, events like those described in this Essay run counter to theories that assign causal power solely to politics or courts.10 Contrary to purely political explanations, law and courts occupied central roles in these dynamics. Nearly all administrators and legislators involved had legal experience or training. They framed claims in constitutional terms, expressed fidelity to law and judicial supremacy, and subjected themselves to the structures and norms of legal discourse.

Though constitutional change was afoot, the machinations took place outside of the courts. The new Imperial Constitution thus took shape well before the Supreme Court was called upon to validate it. Aware that the justices would speak last, elected and administrative officials shaped the issues that the Court would face. They crafted legal analyses, facilitated (and impeded) test cases, and moved ahead with imperial governance that the Court might be tempted to treat as a fait accompli. The Court might get the last word, but it would be in a conversation of other officials’ choosing.

I also join scholars of administrative constitutionalism in emphasizing that courts and politics also do not exhaust the causal field in combination. Nonjudicial administrators participated extensively in the dynamics above.

As nonjudicial officials formulated and pursued their competing constitutional visions, their shared commitment to legal reasoning was paired with common recourse to languages of comparative race and empire. Analogies of islanders to former U.S. slaves and their descendants or of U.S. island rule to ostensibly imperialistic Reconstruction policies were one approach. Another involved deprecation of Spanish imperial rule as contrary to rights, freedom, and self-government and of the “Latin race” as lacking the capacity for democratic politics. English approaches to colonial rule also drew attention, with decisions about which if any merited emulation tracking views on the desirability of empire and on the relative similarities of one or another new U.S. island people to Canadians, Jamaicans, Indians, among other British imperial subjects.

The Essay unfolds in three Parts. Initially, Part I recounts, generals commanding the U.S. invasion and early occupation of Puerto Rico anticipated its annexation and integration into the United States. Under the thrice-amended postbellum Constitution, they led Puerto Ricans to expect, territorial status, eventual statehood, all constitutional rights extent in territories, and U.S. citizenship would be the results of the U.S. invasion. But then President McKinley radically altered the political calculus in late 1898 by seeking Senate approval of a peace treaty with Spain annexing the Philippines.

Decrying Filipinos as racially degraded peoples who could never be incorporated into Union, Part II relates, opponents equated expansion with U.S. citizenship, full constitutional rights, and eventual statehood for Filipinos and concomitant ruin for the United States. McKinley Administration allies responded that expansion could be divorced from each of these constitutional contingencies. When it came time to vote, the Senate reserved the constitutional question, voting both to ratify the treaty and to declare that doing so was not intended to transform Filipinos into U.S. citizens or annex the Philippines permanently.

After President McKinley installed prominent Wall Street lawyer Elihu Root as Secretary of War, Part III explains, the Department prioritized securing an imperial U.S. future above defending legal legacies of the Civil War past. Aware that his Department’s actions could be treated as precedents by Congress and the courts, Root influentially proclaimed through words and deeds that that assertedly racially inferior Puerto Ricans need not and should not receive U.S. citizenship, full constitutional protections, eventual statehood, or self-government. When Congress took up Puerto Rican affairs in 1900, lawmakers saw an opportunity to subject potential approaches to Filipino governance to judicial scrutiny without risking a judgment applicable to the Philippines. To test whether the Supreme Court could be convinced to decline to declare Filipinos to be U.S. citizens, the Constitution to apply in full there, or the Philippines to be a proto-state, Congress legislated for Puerto Rico along the ungenerous lines that Root had proposed.


Reconstruction Constitution Ascendant
As the U.S. invasion of Puerto Rico got underway in late July 1898, military commanders and War Department officials quickly came to treat Spanish laws rather than Spanish arms as the enduring foe. The Queen’s troops rapidly ceded territory. They left behind a constitutional legacy of second-class status for Puerto Ricans within a Spanish empire that U.S. military officials associated with backwardness and tyranny. U.S. constitutional norms would sweep away retrograde Spanish practices, the commanders of the invasion presumed. Early U.S. declarations and policies followed this path. Even President McKinley’s determination to annex the Philippines and its supposedly racially degraded people did not cause executive officials to renounce the Reconstruction Constitution.

In Puerto Rico, U.S. officials encountered a people caught between empires. Because Spain remained the technical sovereign, fighting for the United States was treason for which islanders could be and were executed.11 But given U.S. military superiority, those who served as Spanish troops faced the prospect of a battlefield “slaughterhouse.”12 U.S. commanders navigated the delicate situation by increasing the service and commitment that they demanded from Puerto Ricans in proportion to growing U.S. authority over the island. Initially, lofty and vague U.S. promises accompanied modest requests. On July 28, General Nelson A. Miles promised “the liberal institutions of our government to islanders,” an ambiguous phrase that conjured visions of U.S. citizenship with full constitutional rights and territorial status that would ripen into statehood.13 Here, creoles hoped, was the equality that Spain had long denied them.14 Miles’s only request was that islanders refrain from “armed resistance.”15 Two weeks later, with Spanish forces routed, U.S. and Spanish representatives reached an agreement.16 Spain would evacuate Manila, Puerto Rico, and Cuba. Puerto Rico and Guam would be “ceded to” the United States. Spain would “relinquish . . . sovereignty . . . and title” in Cuba. “Disposition” of the Philippines would await peace negotiations.17 Now, the promises became more specific and the demands more far-reaching. Future military-governor Guy Henry declared: “The forty five states . . . unite in vouchsafing to you prosperity and protection as citizens of the American union.”18 Officials within the State Department opined that naturalization inevitably followed annexation under international law.19 U.S. military authorities also required some island officeholders to swear to “bear true faith and allegiance” to the United States, defend its Constitution “against all enemies,” and “renounce forever every . . . state or sovereignty . . . particularly the King of Spain.”20 Because such an oath extinguished all non-U.S. nationalities, it was traditionally administered only at the moment of naturalization.21

The U.S. War Department further integrated Puerto Ricans into the U.S. order through the policies that it administered and that the President and the Departments of State and Treasury helped set. Amidst rumors “that Chinese agents were preparing to flood Puerto Rico”22 to circumvent the Chinese Exclusion Act (and despite admitted lack of statutory authority), officials began enforcing Chinese Exclusion at Puerto Rican ports.23 They soon applied other U.S. immigration laws as well.24 McKinley separately extended to Puerto Rico the U.S. statutory requirement that trade between U.S. ports be via ships registered under the U.S. flag.25 Treasury Department officials declared Puerto Rican ships eligible for the coasting trade notwithstanding their lack of U.S. registers.26 As to the sensitive topic of tariffs, executive-branch officials were unwilling to implement free trade without congressional participation, and Puerto Rico continued to be treated as from “a foreign country within the custom laws.”27 The Assistant Secretary of State, however, came to assert that Senate ratification of a treaty ceding Puerto Rico to the United States would make Puerto Rico “an integral part of the United States” within which the Constitution demanded tariff uniformity.28

War Department officials’ actions made some sense. All lands acquired before the Civil War were or would soon become states. Their nontribal residents were U.S. citizens. And those in territories, courts had indicated, held the rights elaborated in the Bill of Rights in common.29 Moreover, the Fourteenth Amendment, the Civil War, and the Dred Scott case were regularly read to require eventual statehood and citizenship with associated rights throughout U.S. sovereignty. Lawmakers had in fact just annexed majority-nonwhite Hawai’i notwithstanding largely unrebutted claims that doing so would bring such status and rights. It was easy to envision that integration of Puerto Rico, which the census would soon deem to be majority white, would raise even fewer objections.

Puerto Rico’s trajectory changed abruptly in late 1898 when President McKinley exercised his prerogative as the military victor by seeking annexation of the Philippines.30 He argued that Filipinos’ inability to govern themselves left them vulnerable to other imperial powers. Any less preemptive course of action would entail “more serious complications.”31 McKinley did not recommend extending the Reconstruction Constitution to Filipinos. Like most white mainlanders, he judged them racially inassimilable, and he subscribed to the widely held view that tropical climates were unsuitable to white settlers, which alone could make colonies eligible for self-government.32 But he offered no constitutional alternative. Instead, he and William R. Day, who resigned as Secretary of State to head McKinley’s negotiating commission, groped for solutions. Concerning Cuba, they sought to permit U.S. governance without taking on Cuban debt. Day treated sovereignty as the dividing line between obligations and control and stipulated that the treaty include the phrase: “Spain hereby relinquishes all claim of sovereignty over and title to Cuba.”33 Though the language Day secured declaring that “Spain hereby cedes to the United States” Puerto Rico, Guam, and the Philippines also emphasized Spanish rather than U.S. obligations, it did not assure that those islands would remain outside U.S. sovereignty.34 Instead, McKinley initially looked for ways to honor the Reconstruction Constitution while minimizing its impact. He proposed provisions denying U.S. citizenship to uncivilized tribal people and to “Mongolians and others not actually subjects of Spain.”35 The first exclusion had appeared in the treaty annexing Alaska. The second had roots in Chinese Exclusion. Because Spain recognized jus soli citizenship, these exceptions together tracked the Fourteenth Amendment approach to people who were neither born nor naturalized in a place or who were not subject to its jurisdiction. But ultimately, McKinley settled for avoidance. Questions of political status were left to Congress, with the Constitution only as a backstop.36 When Spain objected, U.S. commissioners declared that “Congress . . . may safely be trusted not to depart from its well settled practice”; it “never has enacted laws to oppress or abridge the rights of residents within its domain.”37

Debate now shifted from Paris to Washington. The U.S. military had set Puerto Rico on a course for U.S. citizenship, full constitutional rights, and eventual statehood. The prospect of the same status and rights for Filipinos now triggered a constitutional crisis.38


The Imperial Turn and the Rising Constitutional Storm
McKinley’s decision to annex the Philippines brought long-simmering conflicts over U.S. imperial expansion to a boil. Unlike Puerto Rico and Guam, the Philippines triggered mainland whites’ fears of a flood of racial inferiors into the United States.39 A national network of Anti-Imperialist Leagues burst onto the scene. Democratic senators mobilized against the treaty. Jurists provided accompanying legal analyses.40 As Republicans rallied to the President’s defense, lawmakers and legal scholars clashed over the constitutionality of imperial expansion. In the process, they probed prior instances of ambiguous status in the United States and the relationship of such ambiguity to the legal legacy of the Civil War. The issue was this: How could a nation bound by the Reconstruction Constitution both acquire and exclude the Filipino people?

Drawing on deep wells of racism, anti-imperialists equated annexing the Philippines with national cataclysm. They argued that acquisition would bring Filipinos U.S. citizenship, full constitutional rights, and eventual statehood.41 Jurists rooted the legal portion of this claim in the Reconstruction Amendments. In their view, Wong Kim Ark, principles of public law, and the predecessor statute to the Fourteenth Amendment all confirmed that nontribal people born within U.S. lands were Fourteenth Amendment citizens.42 These new citizens would enjoy such substantial constitutional rights as freedom of movement, mainland voting on the same terms as whites, opportunities to compete for U.S. jobs, and free trade with the mainland.43 The spirit of the 14th Amendment Apportionment Clause would require universal male suffrage.44 The Dred Scott case and other precedents showed that the Bill of Rights operated in U.S. territories and that statehood would eventually follow.45

Anti-imperialist Senate Democrats equated annexation with national perdition. Fidelity to the Constitution would pollute the U.S. body politic with millions of racially degraded Filipinos. Equally abhorrent was the alternative of acquiring and excluding Filipinos by violating Democrats’ stylized reading of U.S. constitutional history. Making the arguments took breathtaking gall. Democrats who had fought to preserve slavery and then reconstructed postbellum racial caste now elevated equality and consent even as they plumbed the racist depths. John McLaurin of South Carolina saw “a mongrel and semibarbarous population” “inferior to but akin to the negro.”46 Democrat Donelson Caffery of Louisiana tarred Filipinos as permanently “unfit . . . for the glorious privileges, franchises, and functions of an American citizen.”47 But the former lieutenant in the Confederate army also lionized Abraham Lincoln and the Preamble of the Constitution as enshrining government of, by, and for the people.48 George Vest of Missouri asserted that “the Revolutionary war . . . was fought . . . exclusively against the colonial system,” “taxation without representation,” and noncitizen subjects.49 Erasing his service in the Confederate Congress, Vest savaged imperialism for replacing “consent of the governed” with transformations of “millions of humans” into “mere chattels.”50 Yet he remained loyal to the Dred Scott case of 1857, which he read to require that acquired lands eventually become states.51 Denying U.S. citizenship to any nontribal person “within the jurisdiction of the Government,” Vest asserted, would “void” the Fourteenth Amendment and betray a “result of the war crystallized in the Constitution for all time and beyond question.”52 Caffery declared: “We have no subjects . . . . Nationality is the equivalent of citizenship” here.53 Confirmation, he claimed, came from the Slaughter-House Cases of 1873, which asserted that annexation made new “inhabitants of Federal Territories” into “citizens of the United States.”54 According to the two men, the Reconstruction Amendments would provide these new U.S. citizens “immunities and privileges”55 while the Mormon Polygamy Cases would bring them “fundamental limitations in favor of personal rights” that included those specified in the Bill of Rights.56 Vest and Caffery only divided on the effect of the Fifteenth Amendment, which their party had spent years circumventing. Turning it back on Republicans, Vest declared a right to suffrage.57 Preferring a weak Fifteenth Amendment to a talking point, Caffery insisted upon state control of the franchise.58

Expansionists and their allies did not promote Filipino inclusion. Instead, they answered anti-imperialist Democrats by claiming that the Constitution gave the United States discretion in addressing Filipino rights, status, and governance. According to legal scholar Christopher Columbus Langdell, the Constitution did not require U.S. citizenship or full constitutional rights for annexed people.59 Because the Fourteenth Amendment secured results of the Civil War, Langdell wrote, it was aimed at states, not Congress.60 Its guarantee of U.S. citizenship to those “born . . . within the United States” required birth in a state, not a territory.61 That the Thirteenth Amendment barred slavery “within the United States, or any place subject to its jurisdiction” confirmed a narrow reading of “United States.”62

McKinley’s Senate allies claimed that the Constitution permitted them to employ British imperial practices to govern Filipinos, whose racial inferiority they conceded.63 They thus rejected the notion that the Revolutionary War or Dred Scott were bars to colonialism. Joseph Foraker of Ohio noted that the revolutionary generation had initially sought merely to reform British colonialism.64 Orville Platt of Connecticut dismissed Dred Scott as an anti-precedent while Knute Nelson of Minnesota added that a half century of territorial status for Arizona and New Mexico demonstrated congressional power over eventual statehood.65 McKinley’s allies also denied that the Fifteenth Amendment enfranchised U.S. citizens or that the Revolution, Declaration of Independence, Preamble to the Constitution, or even the Civil War stood for self-government and universal suffrage. In Platt’s words, “The right of a citizen to vote guaranteed by the fifteenth amendment! Women are citizens; [the illiterate and] minors are citizens; they do not vote.”66 Similarly, Nelson contended, “taxation and representation do not go together.”67 The U.S. constitutional norm was federal discretion in territories, the expansionists argued. According to Platt, the Mormon Polygamy cases established that the “‘power of Congress over the Territories is general and plenary,’” limited only by “moral obligations.”68 The Civil War also demonstrated that U.S. sovereignty authorized imperial expansion, for the “blood which deluged the battlefields” secured to the United States “all the power that belongs to the nation as a nation,” including “the right to govern.”69 In fact, McKinley’s allies argued that British colonialism rather than U.S. constitutionalism provided the appropriate model. In Nelson’s words, the Philippines had been “bound hand and foot” in “shackles of Spanish tyranny,” much like Egypt, a land of “sheer helpless barbarism” where British rule had brought “the liberties and blessings of a good government.”70

White-supremacist Democrats were quick to point out tensions between Republicans’ prior support for Reconstruction and party members’ current enthusiasm for an openly racist imperialism. McLaurin charged that Republicans were guilty of “a glaring inconsistency” in advocating a colonial policy “embracing races so nearly akin to the negro, which differs so radically from the policy” of “universal suffrage and the full enfranchisement of the negro” enforced “in the South.”71 Platt and others, he crowed, “most amply vindicated the South” by joining it “outside the spirit of the fourteenth and fifteenth amendments of the Constitution.”72

Republicans responded ambivalently. To varying degrees, they remained committed to the Reconstruction Constitution, presumed that it remained binding authority, and sought to evade or erode its constraints. A January 1899 cartoon from the popular magazine Puck captured the competing tendencies.




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