Puerto Rico and the Origins of U.S. Global Empire

The Disembodied Shade

Charles R. Venator-Santiago

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781135047344
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Drawing on a postcolonial legal history of the United States' territorial expansionism, this book provides an analysis of the foundations of its global empire. Charles R. Venator-Santiago argues that the United States has developed three traditions of territorial expansionism with corresponding constitutional interpretations, namely colonialist, imperialist, and global expansionist. This book offers an alternative interpretation of the origins of US global expansion, suggesting it began with the tradition of territorial expansionism following the 1898 Spanish–American War to legitimate the annexation of Puerto Rico and other non-contiguous territories. The relating constitutional interpretation grew out of the 1901 Insular Cases in which the Supreme Court coined the notion of an unincorporated territory to describe the 1900 Foraker Act's normalization of the prevailing military territorial policies. Since then the United States has invoked the ensuing precedents to legitimate a wide array of global policies, including the 'war on terror'.

Puerto Rico and the Origins of US Global Empire: The Disembodied Shade combines a unique study of Puerto Rican legal history with a new interpretation of contemporary US policy. As such, it provides a valuable resource for students and scholars of the legal and historical disciplines, especially those with a specific interest in American and postcolonial studies.

Chapter 1 A conceptual overview

DOI: 10.4324/9780203380864-1

It is locality that is determinative of the application of the Constitution, in such matters as judicial procedure, and not the status of the people who live in it.

(Justice William H. Taft, Balzac v. People of Porto Rico, 1922)

This century-old doctrine informs our analysis in the present matter.

(Justice Anthony Kennedy, Boumediene v. Bush, 2008)

Following the attacks of 11 September 2001, the administration of President George W. Bush began to develop an array of extraterritorial policies enabling the United States to selectively conduct a global war on terror. Simultaneously, Congress began to normalize these policies through the enactment of legislation enabling the Bush administration to conduct its indeterminate global campaign. The Bush administration also developed corresponding constitutional interpretations situating the power of the Executive or Commander-in-Chief outside of the scope of international and domestic constitutional law. The Supreme Court, however, entered the fray with a series of opinions that sought to temper the Bush administration’s power without hindering its ability to conduct a global war on terror. A majority of the Court ultimately invoked a ‘century-old’ postcolonial interpretation of the Constitution that legitimized the United States’ continued global war on terror.

The President, Congress, and the Court in large measure wrangled over the modalities of administration of territories rooted in three traditions of United States’ territorial expansionism. Historically, the United States has developed at least three traditions of territorial expansionism with corresponding constitutional interpretations and policies. Throughout the nineteenth century, the United States developed a colonialist tradition premised on the annexation of new territories that could be subsequently organized into new states of the Union. Colonial territories were treated as parts of the United States for constitutional purposes. Simultaneously, the United States developed an imperialist tradition premised on the occupation of territories. Unlike colonial territories, occupied territories were ruled as possessions situated outside of the United States for constitutional purposes, regardless of their geographic location. Between 1898 and 1901, however, the United States developed a new tradition of expansionism, global in scope, that enabled it to annex new territories without binding Congress to colonize them into states of the Union. All territories acquired under the aegis of this third tradition, a postcolonial tradition of territorial expansionism, have since been ascribed a borderland status for constitutional purposes. More importantly, the United States’ adoption of a postcolonial modality of territorial expansionism and administration marked its entry into the exclusive club of global empires.

Central to the Bush administration’s policies were the construction of extraterritorial torture and detention camps as well as the ascription of alien subjectivities on suspected ‘enemies’ of the United States. Invoking his constitutional power as Commander-in-Chief of the armed forces, President Bush ordered the construction of camps in places like Guantánamo Bay, Cuba, Afghanistan, Iraq, as well as in other so-called ‘black sites’ throughout the world. In addition, persons ascribed the status of a terrorist were treated as ‘enemy combatants’ or ‘enemy aliens’ who could be kidnapped, tortured, subjected to extraordinary rendition, placed under surveillance, and in some cases subjected to extrajudicial assassination or execution (The Constitution Project 2013). The Bush administration situated the camps and the detained subjects outside of the United States, regardless of the geo-political location of the camps [Hamdi v. Rumsfeld, 542 US 507 (2004)].

Working with the US Congress, the Bush administration further crafted laws, policies and corresponding constitutional interpretations of the status of extraterritorial spaces housing torture and detention camps as well as the status or subjectivity of the bodies of enemy aliens (Yoo 2006; Bruff 2009; Cheney and Cheney 2011). To paraphrase Alexis de Tocqueville, the Bush administration sought to legalize its war on terror policies in order to counterbalance the democratic impulses of US civil rights and international human rights law (Mayer 2000: 263–270). Territories like Guantánamo Bay, the Bush administration argued, were located in an extraterritorial space situated outside of the United States for both constitutional and international law purposes, yet within the purview of the Commander-in-Chief’s sovereign power. It followed that because camps located in places like Guantánamo Bay, Cuba were outside of the United States for constitutional purposes, and because they were outside of the US, they were outside of the scope of international law, which only regulated the conduct of states within their sovereign borders. Thus, the Bush administration consistently argued, detainees held in US torture and detention camps could not invoke constitutional (civil rights) or human rights to challenge the military’s power over the bodies of detainees. Similarly, the Bush administration ascribed a special alien status on detainees in order to bar them from invoking constitutional rights and privileges such as the writ of habeas corpus or human rights protecting detainees against torture and other forms of cruelty. Enemy aliens’ and enemy combatants’ bodies were in themselves outside of the reach of legal rights that could interfere with the military’s power, or so the Bush administration argued. Stated differently, the Bush administration, with the aid of its congressional collaborators, sought to develop laws, policies and constitutional interpretations that situated both territories and enemy bodies outside of the law (constitutional and/or international) yet within the purview of its plenary authority or sovereign power of the Commander-in-Chief, the military title or rank of the US President.

Simultaneously, the United States Supreme Court, the final arbiter or interpreter of the US Constitution, consistently tempered some of the Bush administration and Congress’ war on terror policies and legal interpretations. The Court chose the question of the legality of the torture and detention camps located in Guantánamo Bay, Cuba as a juridical arena to temper or place some limits on the Bush administration’s war on terror policies. Although the Court issued a series of rulings on various dimensions of the legal status of Guantánamo Bay and the detainees held in the corresponding camps, it did not rule on the corresponding constitutional questions until 2008. More specifically, in Boumediene v. Bush [553 US 723 (2008)], the Court ruled on the constitutionality of the Bush administration’s policies denying detainees access to a writ of habeas corpus, a privilege that enabled persons held in US camps to challenge their incarceration by forcing the US military to justify the basis for holding a detainee. A majority of justices invoked colonialist territorial jurisprudence as legal precedents to place limits on the power of the Commander-in-Chief over detainees arguing that ‘(e)ven when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as expressed in the Constitution”’ (553 US 723, 765). Yet, even though the court was willing to place constitutional limits on the sovereign power of the President, the Court refused to treat camps held within the sovereignty of the United States as constitutional parts of the nation-state. Instead, a majority of the justices invoked the territorial precedents established by the so-called ‘Insular Cases,’ a ‘century-old doctrine,’ to describe the constitutional status of Guantánamo Bay and the detainees held in the corresponding camps. Unlike colonialist territorial precedents, which treated territories as parts of the United States for constitutional purposes, the precedents established by the Insular Cases enabled the United States to selectively rule acquired territories as foreign localities for constitutional purposes. Thus, while colonialist territorial jurisprudence essentially bound the US to extend the full bill of rights and other protections such as the writ of habeas corpus to territories held within the sovereign power of the US, the Insular Cases authorize the US government to extend only ‘fundamental’ rights and protections to territories held within its sovereignty.

The precedents established by the Insular Cases, and more specifically in Downes v. Bidwell [182 US 245 (1901)], enabled the US to acquire and/or annex territories and selectively rule them as unincorporated territories or foreign localities in a domestic or constitutional sense. My contention is that the ensuing body of law, also known as the doctrine of territorial incorporation, has since enabled the US to acquire (and/or annex) territories and subsequently rule them as postcolonial ‘borderland’ territories that can be selectively situated in liminal constitutional spaces. This borderland legal or constitutional status has since enabled the US government to select when and how to extend or withhold constitutional provisions, including civil rights and privileges, to unincorporated territories and their residents or inhabitants (including detainees). To re-appropriate Judge Juan R. Torruella’s (1988) argument, since 1901 the doctrine of territorial incorporation has enabled the United States to selectively rule acquired territories as separate and unequal constitutional possessions.

In sum, since 11 September 2001, the United States has anchored its legal justification for a global war on terror on a postcolonial interpretation of the Constitution. The United States began to develop a postcolonial territorial tradition of expansionism in the aftermath of the 1898 Spanish–American War in order to rule Puerto Rico and the other annexed territories primarily inhabited by non-white populations. Simultaneously, the United States began to constitute itself as a global empire. Since then, the Supreme Court has at times invoked a postcolonial interpretation of the Constitution to temper the contours of the more extreme or imperialist impulses of Congress and the President. Unfortunately, critics of US global empire and its current war on terror more often than not neglect to take into account this legal history.

The Postcolonial Origins Of Us Global Empire

Legal actors and scholars generally read the legal history of US territorial law and policy in two ways. Legal actors within the Bush administration conceptualized US territorial jurisprudence as an undifferentiated collection of cases addressing the status of territories within the United States. Legal actors in the administration did not recognize jurisprudential differences between rulings about annexed and occupied territories or the ensuing interpretations used to legitimate different types of US expansionism. More specifically, this reading obscured differences among legal rationales used to legitimate colonialist, imperialist and global forms of US territorial expansionism. More importantly, this reading of US territorial legal history enabled the administration to draw upon all territorial precedents, regardless of the status of the territory within the United States, and cherry-pick interpretations that could be used in multiple contexts. This approach enabled the Bush administration to draw upon imperialist legal precedents to formulate an interpretation that legitimated treating unincorporated territories as spaces located outside of the law, that could be ruled in a state of exception.

Alternatively, in my opinion, the prevailing reading among Liberal legal scholars and legal actors emphasizes a linear reading of the development of US territorial law and policy. Central to this interpretation is Max Farrand’s classic work The Legislation of Congress for the Government of the Organized Territories of the United States, 1789–1895, which documents the legal history of the acquisition of US territories and their subsequent admission into the Union as states on an equal footing with the original thirteen. Focusing primarily on congressional legislation, generally known as organic or territorial acts, Farrand divides this history in two periods. During the first period (1789–1836), Congress began to enact territorial legislation defining its powers to govern new territories that could be subsequently organized into new states of the Union. During the second period (1836–1895), Farrand further argues, legislation aimed at consolidating the plenary power of Congress, and the United States more generally, to govern territories. Farrand’s periodization framed nineteenth-century US territorial law and policy as an expression of nation-state building.

In Territories and Dependencies of the United States, William F. Willoughby draws on Farrand’s periodization to construct a larger US territorial narrative that incorporates the annexation of non-contiguous islands like Hawai’i and the Spanish territories annexed during the War of 1898. Willoughby’s narrative includes three periods. Situated between 1784 and 1853, the first period encompassed the annexation of the contiguous territories that would result in the legal construction of the continental United States. This period was primarily shaped by the settlement and colonization of the territories that would eventually result in the construction of 35 additional states (1905: 5–6). The second period, roughly situated between 1853 and 1898, was marked by the annexation of Alaska and the Howland and Baker islands. However, unlike the first period, Willoughby further argued, most of the Federal ‘energies’ were devoted to the colonization of the continental territories already possessed and was fairly unimportant in the larger history of US expansionism (6). The annexation of Hawai’i, Samoa, Puerto Rico, Guam, and the Philippines in 1898, Willoughby concluded, marked the beginning of a third period. To be sure, whereas territories previously annexed were organized into states that were admitted into the Union on an equal footing with the original thirteen, Willoughby argued,

the United States was for the first time confronted with the possibility, if not certainty, that for an indefinite time to come, the territory under its sovereignty would have to be divided into two classes having different political status; the one constituting the United States proper and enjoying full political rights and privileges, and the other dependent territory in subordination to the former and having its form of government and the rights of its inhabitants determined for it

(1905: 7–8).

This latter period, Willoughby reasoned, could be defined as a sort of unconscious imperialism premised on the annexation of islands populated by inferior races (4). It is important to note that Willoughby’s narrative also included a discussion of the occupation of ‘Indian territories,’ but ultimately concluded that these territories would be absorbed into future states (73–74). In a sense, Willoughby’s narrative of US territorial law and policy creates a linear history that begins with the colonization of the United States and develops into an imperialist tradition.

Gerald L. Neuman’s more recent iteration of the development of the US territorial doctrine both echoes and expands Willoughby’s conceptual map. Neuman identifies four phases in the development of the US territorial doctrine or rather the relevant jurisprudence. The first three phases correspond to Willoughby’s narrative. However, in the fourth phase, spanning from the 1950s to the present, Neuman writes:

...the courts have recognized that constitutional limitations may apply even outside the boundaries of the United States. At the same time, the postwar rejection of colonialism has caused a reevaluation of the purposes for which territories may legitimately be governed. Thus far, despite continuing criticism of the Insular Cases doctrine, its approach has been subtly transformed rather than overruled.

(Duffy Burnett and Marshall 2001: 185)

Stated differently, Neuman contends, since the 1950s the Supreme Court has progressively shifted away from a ‘colonialist’ to a more liberal territorial jurisprudence. Although Neuman recognizes the continued disparities present in US territorial jurisprudence, his rendition of the fourth phase suggests that the Court can re-interpret the Insular Cases in a more democratic and egalitarian way, at least within the parameters of the US Constitution.

At least two legal scholars have offered critical readings of the history of United States’ territorial expansionism linking the Insular Cases to the current US war on terror laws and policies. Both Natsu Taylor Saito (2007) and Kal Raustiala provide linear readings of US territorial law and politics that incorporate debates about both US colonialism and imperialism. They establish connections between colonialist and imperialist traditions of US territorial acquisition and governance. However, Taylor Saito’s narrative does not examine the legal history of US territorial expansionism leading her to obscure conceptual (and constitutional) differences within US territorial law and policy (2007: 22–23). In contrast, while Raustiala provides a critical reading that incorporates multiple traditions of territorial expansionism, his narrative only recognizes two types of territorial subordination, namely intra and extra-territorial subordination. Notwithstanding, like Neuman (2009), both Taylor Saito and Raustiala recognize some of the continuities betw...

Table of contents

• Cover Page
• Half-Title Page
• series
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• 1 A conceptual overview
• 2 Nineteenth-century territorial expansionism
• 3 Large Policy expansionism, the Third View, and the unincorporated territory
• 4 Citizenship and the inclusive exclusion of Puerto Ricans
• 5 Rights, subjectivity, and the US global empire
• 6 Unincorporated camps: Guantánamo Bay and the war on terror
• 7 The extraterritorial subjectivities of US global empire: An epilogue?
• 8 Conclusion
• Bibliography
• Index