University of Massachusetts Amherst ScholarWorks@UMass Amherst Doctoral Dissertations 1896 - February 2014 1-1-2002 Constitutional interpretation and nation building : the Territorial Clause and the Foraker Act, 1787-1900. Charles R. Venator Santiago University of Massachusetts Amherst Follow this and additional works at: https://scholarworks.umass.edu/dissertations_1 Recommended Citation Venator Santiago, Charles R., "Constitutional interpretation and nation building : the Territorial Clause and the Foraker Act, 1787-1900." (2002). Doctoral Dissertations 1896 - February 2014. 2347. https://scholarworks.umass.edu/dissertations_1/2347 This Open Access Dissertation is brought to you for free and open access by ScholarWorks@UMass Amherst. It has been accepted for inclusion in Doctoral Dissertations 1896 - February 2014 by an authorized administrator of ScholarWorks@UMass Amherst. For more information, please contact [email protected]. CONSTITUTIONAL INTERPRETATION AND NATION BUILDING: THE TERRITORIAL CLAUSE AND THE FORAKER ACT, 1787-1900 A Dissertation Presented by CHARLES R. VENATOR SANTIAGO Submitted to the Graduate School of the University of Massachusetts Amherst in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY September 2002 Department of Political Science ©Copyright by Charles R. Venator Santiago 2002 All Rights Reserved CONSTITUTIONAL INTERPRETATION AND NATION BUILDING: THE TERRITORIAL CLAUSE AND THE FORAKER ACT, 1787-1900 A Dissertation Presented by CHARLES R. VENATOR SANTIAGO Approved as to style and content by: 1 Roberto AlejandrcCv hair Peter D'Errico, Member Dean Robinson, Member >me Milleur, Department Head Apartment of Political Science DEDICATION For Hiza and Ric Townes, victims of this institution’s corporate greed. ACKNOWLEDGEMENTS This project began as a paper presented at a Law and Society Association meeting several years ago. Taunya L. Banks invited me to present my paper at a Lat Crit conference, and it eventually evolved into what you are about to read. I am also indebted to a legal community of scholars that have nurtured this project in more ways than I can describe here. They include Tanya K. Hernandez, Robert Cottrol, Pedro Malavet, Ediberto Roman, Silvia Lazos, Frank Valdes, and Neil Gotanda. During uncertain times my committee, composed of Roberto Alejandro, Peter D’Errico, and Dean Robinson, gave me unconditional support to finish this project. I will always be grateful. Of course without Nicholas Xenos commitment graduate students like myself, I would not have completed this project at this institution. I am also indebted to the support and intellectual stimulation of Antonio Y Vasquez Arroyo, Alex Betancourt, Gabriel de la Luz, and Alan Gaitenby. Without the support of the faculty and staff of the Department of Legal Studies I would not have been able to complete this project. I am forever grateful. Ric Townes made it possible for me to participate, publish, and become an active member in a number of academic communities throughout the World. I also want to recognize the support of my immediate and extended family, Lily Santiago, Katia Venator Santiago, Ginetta E.B. Candelario, Christian, Marlena, Kaleb Santana, my father Bob Venator, Michelle and Anna, and all of the rest. This is their project as much as it is mine. v ABSTRACT CONSTITUTIONAL INTERPRETATION AND NATION BUILDING: THE TERRITORIAL CLAUSE AND THE FORAKER ACT, 1787-1900 SEPTEMBER 2002 CHARLES R. VENATOR SANTIAGO, B.A., UNIVERSITY OF MASSACHUSETTS AMHERST M.A., UNIVERSITY OF MASSACHUSETTS AMHERST Ph.D., UNIVERSITY OF MASSACHUSETTS AMHERST Directed by: Professor Roberto Alejandro This project explores the relationship between constitutional interpretation and acquisition and governance of territories during the nineteenth century. This project explores how Congress, the Supreme Court and the Executive branch constructed the constitution in order to justify various imperialist nation-building endeavors. In the process, this project explores questions of citizenship, race, constitutional interpretation, and nation building. vi CONTENTS Page ACKNOWLEDGEMENTS v ABSTRACT vi LIST OF TABLES CHAPTER 1. INTRODUCTION 1 2. COLONIAL ANTECEDENTS 15 2.1 Legal Conceptions of Space in Colonial North America 16 2.2 The Indian Boundary Lines 21 2.3 The Articles of Confederation and Western Expansionism 25 3. CONGRESS AND THE ORGANIC ACTS 42 3.1 Congress and the Constitution 45 3.2 The Southwest Territories 49 3.3 The Louisiana Purchase 50 3.4 The Florida Territory 59 3.5 The Texas Republic 60 3.6 The Oregon Territory 61 3.7 The Mexican Territories and the Doctrine of Ex Propio Vigore 64 3.8 The Civil War and its Aftermath 68 3.9 The Indian Territories and Oklahoma 75 3.10 The Hawaiian Islands 78 4. THE SUPREME COURT AND THE TERRITORIAL CLAUSE 81 4.1 Marshall and the Foundations of U.S. Imperialism 85 4.2 Taney’s Colonies 102 4.3 The Gilded Age of the Supreme Court 113 5. RACE, IMPERIALISM AND THE IVORY TOWERS 121 5.1 The Splendid Little War of 1998 123 5.2 The Treaty of Paris of 1898 131 5.3 The Anti-Imperialists 138 5.4 The Imperialists 152 vii 6. THE FORAKER ACT OF 1900 AND THE COLONIAL DEPENDENCY 165 6. 1 Law and the Military Regime 165 6.1.1 The Constitutional Basis for the Military Government 168 6.1.2 Davis’ Colonial Dependency 172 6. 1 .3 The Military’s Colonial Policy 1 §5 6.2 Race and the Foraker Act 1900 189 6.2.1 Trade and the Uniformity Clause 192 6.2.2 The Puerto Rican Citizen 1 94 6.2.3 The Civilized Government 199 6.2.4 Did the Constitution Follow the Flag? 201 7. CONCLUDING REMARKS 203 7.1 Notes for Further Research, The Insular Cases: 1901-1922 204 7.2 Territories, Colonial Dependencies, and Unincorporated Territories 215 NOTES 218 BIBLIOGRAPHY 257 viii LIST OF TABLES Table Page 1. Racial prerequisites for suffrage rights in the territories 73 IX CHAPTER 1 INTRODUCTION Legal texts like the Constitution can be understood as a source of authority and structure that participate in shaping the contours of a nation’s boundaries. The Constitution has played an important role in defining the ways in which the boundaries of the United States have expanded as the result of the acquisition and integration of new territories after initial formation of the nation. One way in which the Constitution has participated in the nation building process, has been by providing a source of authority for the governance of acquired territories and their subsequent admission as States on an equal footing with that of the original thirteen. This dissertation seeks to understand the ways in which the Constitution has been constructed or interpreted to legitimate the United States imperialist nation-building project. I am especially interested in a discussion of the interpretations that were adopted between 1789 and 1900 to legitimate the acquisition of new territories and their governance during the period anteceding their formal annexation as States of the Union. There have been at least two prevailing interpretations of the relationship between the Constitution and the nation building history of the United States. This relationship can be understood as a result of the impact of macro-historical events like the Revolutionary War, the War with Mexico, the Civil War, and the Spanish American War, on the nation-building process. Proponents of this view, such as Bruce Ackerman, suggest that American constitutional history can be understood within jurisgenerative 1 these eras. Between the embrace of popular opinion and the aid of the legal community, constitutional moments could potentially give birth to 2 constitutional regimes . This argument also suggests that each constitutional moment can be understood as a re- founding of the nation and the re-conceptualization of a new national identity. Alternatively, this relationship can be understood as a result of the interaction between individuals and the nation. This interpretation suggests that the Bill of Rights has been a site for contestation and social struggles that has ultimately resulted in the re- conceptualization of a national identity. To be sure, scholars like Rogers M. Smith suggest that struggles over the ascription of citizenship can provide important insights about the nature of the relationship 3 between the Constitution and nation building . Other legal scholars who identify with the Critical Race Theory tradition in the legal academy further contend that the rights and entitlements mediate relations of power and 4 membership between the individual and the nation . Presumably, the recognition and implementation of equal rights would result in a more democratic and egalitarian nation. I will label this approach as “micro-historical” to the extent that its concern is mostly with the relationship of individual or group identities to the nation and the State. My contention is that while the “macro” approach has a tendency to ignore the centrality of citizenship and membership in constituting the nation, the “micro” alternative generally assumes that the citizen can have a reciprocal and direct relationship with the nation. In this project, however, I will argue that the citizen’s relationship to the nation has been mediated by the status of the space in which she has resided. Drawing on the important insights and scholarship provided by the latter interpretive traditions, I will suggest an alternative understanding that considers the constitutional status of the territory in which the individual resides as a way to understand the historical relationship 2 between constitutional interpretation and U.S. nation 5 building . Rather than simply focusing on “national” events or on the relationship between individuals and the nation, this approach focuses on the ways in which the acquisition and governance of territories mediated the constitutional relationship between citizens and the nation. My contention is that both macro and micro approaches to the study of U.S. nation building have a tendency to obscure important instances of subordination and oppression that cannot be understood within these paradigms, but that simultaneously result from these types of events and relationships of power.