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Eighteenth-century Europeans and eastern Indians of North America shared in how they structured international alliances as being either (1) between nations relatively equal in power, as in peace treaties that ended European wars and in “one dish and one spoon” alliances among Indians, or (2) between a strong and weak nation, transpiring usually when a weak and battered refugee people moved onto a stronger nation's territory and became tributary to them. German Protestants and French Huguenots, for example, settled in Anglo-America in distinct, autonomous communities but were subordinate in international affairs to whichever English colony their settlement was in. Similarly, the Iroquois Confederacy took in the Tuscaroras and many smaller refugee nations, and the Creek Confederacy included in its network the Yuchis, a self-governing people yet subject to the Muskogean-speaking peoples of the Creek Confederacy in their foreign relations. These arrangements are very similar to the concept of “domestic dependent nations,” a concept put into law by Supreme Court Chief Justice John Marshall's decisions in Cherokee Nation vs. Georgia (1831) and Worcester vs. Georgia (1832), suggesting that contemporary US Indian law has roots in the ancient traditions of international relations as practiced by both Indians and Europeans.

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.” 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 a topic of often passionate argument the world over. Despite a very different political and legal context, the dispute over Guantanamo focused attention on the geographic reach of American law with an intensity not seen since the early 1900s.