The absence of legal authority to govern the territories created a crisis under the Articles of Confederation. After the War of the Revolution, several states gave up their claims to land west of the United States. Two months before the Constituent Convention met, the Northwest Ordinance of 1787[1]was approved. This statute provided the basis for the governance of these territories and their eventual admission to the Union as a state.[2]Madison considered this utterly unconstitutional exercise of authority[3]. In addition to the need to create a charter for governance in the territories, the founding fathers of the nation were anticipating that Georgia and North Carolina would also soon give up their claims to land west of the United States[4]. In other words, the founding fathers saw the power to acquire territories and administer them as states as a power of the utmost importance.
The territory Clause in Article IV states that: "Congresses shall have the power to dispose of and make all necessary rules and regulations respecting the territory or other property belonging to the United States.”[5]Article IV also establishes the admission of the new states.[6] We might argue that these two articles are enough to cover the entire field of acquisition and governance of territory. However, prominent politicians and judges of the nineteenth century would say otherwise, like Jefferson and Chief Justice Taney, who saw the clause as that limited to the territory that the United States possessed at the time the constitution was adopted.[7]There are other sources of authority for the acquisition of property such as war power or treaty power. However, the constitution says nothing in these two powers concerning the governance of the newly acquired territories.[8]
Conflicts with Spain over the rights of navigation, the right of water, and the desire of both nations to provide territories to their citizens west of the continent, motivated President Jefferson in 1803 to complete the Louisiana Purchase, where he agreed with Napoleon to purchase of the territory of Louisiana for 15 million dollars.[9]The first controversy that arose in light of the Louisiana Purchase was whether or not the United States had the power to acquire territories? Jefferson himself doubted the power that could, if any, have the government to acquire territory or incorporate it into the Union.[10]Jefferson felt that a constitutional amendment was necessary to acquire one territory and another to govern it.[11]The Attorney General of Jefferson, Levi Lincoln, agreed that the national authority of the government under the powers of the disposition over territories and the power of Treaties was limited to the territories belonging to the United States when the constitution was approved. However, most politicians of the time believed the opposite, that treaty power included the power to acquire new territories.[12]
Jefferson's Secretary of the Treasury, Albert Gallatin, argued in a law memorandum that he wrote to the president that the treaty clause did not expressly limit the authority to the existing territory[13]of the United States and that the existence of the United States as a nation presupposed the power and duty that they had. All nations have an inherent right to acquire territories by treaty.[14]The treaty clause should have the power to be interpreted as having an inherent right to acquire territory.[15]Therefore, Gallatin foreshadowed Marshall's interpretation in McCulloch v. Maryland[16]by reading treaty clause as a power that incorporates the power of states as one to acquire territories under international law. The primary debate around the Louisiana Purchase was in relation to the territory and its new relationship with the new sovereignty, especially the legal rights of the inhabitants of the acquired territory. The debate originated and was motivated mainly by Article III of the treaty, which established:
“The inhabitants of the ceded territory shall be incorporated in the Union of the United States , and admitted as soon as possible, according to the principles of the Federal constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States; and in the meantime shall be maintained and protected in the free employment of their liberty, property, and religion which they profess.[17]”
The arguments related to statehood raised the possibility that Louisiana and future territories were going to be governed as dependent colonies and outside the constitutional protection enjoyed by states and their citizens. In other words, statehood in the Louisiana Purchase asked if the newly acquired territory was to be placed in the same category as the existing territories (citizenship and statehood for the French and Spanish inhabitants of the region), or were to be governed as a permanent colony.
The majority of the members of Congress attributed the power of governance to the power of Article IV to make the rules and regulations for the territories and to admit new states.[18]No one objected to the inhabitants becoming citizens quickly after the approval of the treaty[19]and a few others argued that the inhabitants would have to be put on a path to gain citizenship. One of the amendments that Jefferson would have proposed included giving American citizenship to white men only.[20]Representative Samuel Mitchill of New York maintained that the inhabitants of the territory were not yet prepared to assume the responsibilities of democratic governance and must serve a “probationary period according to the principles of the Constitution, after which Congress would grant them citizenship.”[21]
The debates of the government of how to settle in the new territory made a little less confusing the general ideas at that time related to the application of the constitution and federal laws into the territory. Indeed, some government was required, and immediately after the ratification of the treaty, Congress authorized the president to take possession and govern the territory until Congress adopted legislation granting an official government.[22]In February 1804, Congress adopted an interim government that was in effect for one year after many complaints. The temporary territorial government was composed of a governor, a legislative council composed of thirteen members, and judges and legal officers serving in terms of 4 years, all appointed by the President[23]. The territorial legislative authority extended to all legislative matters that were not inconsistent with the constitution and the laws of the United States[24]. The jury trial was guaranteed in all capital cases and all cases in the superior court if one of the parties requested it.[25]The governor had the absolute power to dissolve the legislative council when it seemed the right thing to do.[26]
Most participants in the debate believed that the United States had to take some affirmative action to make the nation's laws operable in the territory, regardless of their view of what rights the inhabitants of the territory should have under the treaty or the constitution. Most members of Congress accepted the principle of international law that the laws of the territory transferred or acquired would remain in effect pro tempore in while the new sovereignty analyzes what law to adapt to suppress them, if necessary.[27]Jefferson shared this vision of international law.[28]Therefore, by accepting an interim government, Congress provided for specific United States laws to be extended to the territory. The fact that American politicians were willing to recognize the principle of international law did not solve the problem[29]; for example, what constitutional provisions applied to the territory? Also, in particular, what limits did the constitution impose on the congressional power? Both the presidential and temporary government bills provoked string opinions regarding if Congress could constitutionally speaking establish such a government.
Consideration on the question whether the federal government had the authority to govern territory and the rights held by the inhabitants of the territory in case they are complicated by the fact that the text of the constitution does not say anything conclusively about its applicability to territories. The constitution did not define citizenship until the adoption of the Fourteenth Amendment. The constitution expressly guarantees a right to a republican form of government and congressional representation only to the states and authorizes the Congress to admit states. Although the constitution did not promote any provision authorizing the organization of a colonial government, advocates of the application of immediate citizenship, self-government, and eventually statehood, had to base their arguments on American spirituality and its political institutions that encouraged the creation of the constitution, instead of the text of the constitution.
The Northwest Ordinance of 1787 and the Louisiana Purchase in many ways reflected the textual ambiguities of the constitution concerning the ability of the United States to "engage in the colonial rule." In the end, the specific question about whether the inhabitants of the newly acquired territories and if they were to become citizens and be a territory destined for the state was answered in the affirmative and adopted as a rule of law in the history of the nation. It was the norm in the acquisition of territories between the Louisiana Purchase and 1898.[30]No court adjudicated the legality of the Louisiana Purchase, making questions about the constitutional authority over the territories and their inhabitants waiting to be resolved at a later date.
[1]SeeAct of Aug. 7, 1789, 1 Stat. 50.
[2]The Northwest Ordinance established a three-stage process for territorial governance: (1) a brief period of governance by a federally-appointed governor and/or council; (2) establishment of a representative legislature subject to congressional override, local courts with appeal to the federal court system), and nonvoting representation in Congress; and (3) statehood. See generally, Mathew J. Festa, Property and Republicanism in the Northwest Ordinance, 45 Ariz. St. L. J. 430.
[3]See James Madison, The Federalist No. 38, at. 211-212, American Bar Association (2009) (noting that Congress had administered U.S. territories “without the least constitutional authority” due to the necessity of the cause).
[4]Id. at 211. (“We may calculate, therefore, that a rich and fertile country of an area equal to the inhabitant extend of the United States will soon become a national stock”).
[5]U.S. Const. art. IV, §3. cl. 2.
[6]U.S. Const. art. IV, §3, cl. 1 (“New states may be admitted by the Congress into this Union. But no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislature of the states concerned, as well as of the congress.”).
[7]See Scott v. Sandford, 60 U.S. (19 How.) 393, 432 (1857). Chief Justice Taney concluded that the Treaty Clause was limited to the original territories in an advance effort deny effect of the Northwest Ordinance for congressional power over slavery.
[8]Does the Constitution in fact permit or accommodate territorial expansion? If so, in what forms? To what extent? With what conditions or limitations? Through which institutional mechanism? Are the provisions of territorial governance subject to the same kind of congressional restrictions as other federal powers? To what extent do structural principles, such as the separation of powers or federalism, control the form of acquisition and governance? Do inhabitants of the territories have the same rights as inhabitants of the states? Does the President have inherent power to govern territory? Can Congress grant him what power? Does it matter whether the nation is at war or at peace? Very basic questions about American constitutional government, and none of them are answered in express texts in the Constitution. See in general Gary Lawson and Gary Seidman, The Constitution of Empire: Territorial Expansion and American Legal History, Yale University Press (2004).
[9]For an interesting discussion of the debate see David P. Currie, The Constitution in Congress: The Jeffersonians 1801-1829, Chicago University Press, 95-114 (2001).
[10]Jefferson wrote: “[W]hen I consider the limits of the [United States] are precisely fix by the treaty of 1783, that the Constitution expressly declares itself to be made for the United States, I cannot help believing that the intention was to permit Congress to admit into the Union new States which should be formed out of the territory for which & under whose authority alone they were then acting….” Letter from Thomas Jefferson to John Breckenridge (April 12, 1803). 8 The Writings of Thomas Jefferson 247-48 (Paul L. Ford ed., New York, G.P. Putnam's Sons 1892).
[11]Id at. 244.
[12]Letter from Levi Lincoln to Jefferson (Jan.10,1803).
[13]Letter from Gallatin to Jefferson (Jan.13,1803), in Selected Writings of Albert Gallatin 211,213 (E. James Ferguson ed., 1967).
[14]Id.
[15]Idat. 214.
[16]17 U.S. 316 (1819).
[17] Treaty Between the United States of America and the French Republic, Apr. 30, 1803, U.S.-Fr., art. 3, 8 Stat. 201, 202. The treaty as those that followed expressly guaranteed that statehood would be the final status of the inhabitants of the territories just acquired by the treaty or War.
[18]13 Annals of Cong. 474 (1803) (Statement of Rep. Caesar A. Rodney of Delaware) (arguing that the Territory Clause provides a basis for governance “not merely of territory held but of territory which in the future might be acquired by treaty or purchase”); see also Id.at 480 (Statement of Rep. Samuel L. Mitchill of New York arguing that the Territory Clause provides authority for governance).
[19]Id. at 481 (Statement of Rep. Samuel L. Mitchill of New York) (“I do not venture to affirm that, by mere act of cession, the inhabitants of the ceded country become, of course, citizens of the country to which they are annexed, It seems not to be the case, unless specially provided for).
[20]Jefferson in his October 17th, 1803 message to Congress referred to inhabitants as “adopted brethren.” https://millercenter.org/the-presidency/presidential-speeches/october-17-1803-third-annual-message.
[21]13 Annals of Cong. 480 (1803) (Mitchill allowed Congress some discretion: “They are to serve an apprenticeship to liberty; they are thus to be taught the lessons of freedom; and by degrees they are to be raised to the enjoyment and practice of independence. All of this to be done as soon as possible; that is as soon as the nature of the case will permit; and according to the principles of the Federal Constitution… They shall, as soon as the principles of the Constitution permit, and conformably thereto, be declared citizens of the United States. Congress will judge the time, manner, and expediency of this.
[22]Id. at. 489 (The statute provided that: “ until Congress shall have made provision for the temporary government of the said Territories, all the military, civil, and judicial powers, exercised by the officers of the existing government of the same, shall be vested in such person and persons, and shall be exercised in such manner, as the President of the United States shall direct [for the maintaining and protecting inhabitants of Louisiana in the full enjoyment of their liberty, property, and religion].
[23]Act of March 26, 1804, 2 Stat. 283, 283-284.
[24]13 Annals of Cong. 1294 (1804).
[25]Id.
[26]Id.
[27]Id.at. 518 (1804) (“Statement of Rep. Caesar A. Rodney of Delaware) (“It is a received principle of the law of nations, that, when territory is ceded, the people who inhabit it have a right to the laws they formerly lived under, embracing the whole civil and criminal code, until they are altered or amended by the country to whom the cession is made.”).
[28]Letter to the Secretary of State (May19,1808), in 7 The Writings of Thomas Jefferson, supra note29 , at 58-59 (“Louis XIV having established the Costumes de Paris as the law of Louisiana, this was not changed by the mere act of transfer; on the contrary, the laws of France continued and continues to be the law of the land, except where specially altered by some subsequent edict of Spain or act of Congress.”).
[29]The fact is that in present day international law can help Puerto Rico start its decolonization process for once and for all.
[30]See 8 Stat, at L. 252. (Article VI of the United States and Spain Treaty for the assignment of Florida states: “The inhabitants of the territory which His Catholic Majesty cedes to the United States by the treaty shall be incorporated in the union of the United States, as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of all privileges, rights and immunities of citizens of the United States.”) See 9 Stat, at. L. 922. (Article IX of the Treaty of Guadalupe Hidalgo between the United States and Mexico states that: “The Mexicans who […] shall not preserve the character of citizens of the Mexican Republic[…] shall be incorporated to the union of the United States, and be admitted at the proper time (to be judge by the Congress of the United States) to the enjoyment of all rights of the citizens of the United States, according to the principles of the Constitution, and in the meantime, shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction.”) See 15 Stat, at. 1, p. 539. (Article III of the United States and Russia Treaty for the cession of Alaska states that: “The inhabitants of the ceded territory […] with the exception of the uncivilized tribes, shall be admitted to the enjoyment of all rights, advantages and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, prosperity and religion.”).
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