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In 1898, during the Spanish‐American War, many anti‐imperialists assumed that members of the U.S. woman suffrage movement would be staunch critics of antidemocratic U.S. efforts to establish sovereignty over foreign peoples against their will because of suffragists' own aspirations for self‐government. But suffragists proved to be complex critics of U.S. imperial ambitions. Susan B. Anthony urged suffragists to focus their energies less on opposition to the war and more on keeping the word “male” out of the territorial constitutions and “organic acts” that Congress created to govern its new island possessions in Puerto Rico and the Philippines and thus tacitly lent the support of the suffrage movement to the creation of a U.S. empire.

Why should constitutional protections be extended to any noncitizen in the first place? Some argue that any alien (legal or illegal) residing in the United States is entitled to full constitutional guarantees and protections. The Supreme court addressed this in the Dred Scott case, holding that the Fifth Amendment was not limited to the geographic boundaries of the states, but rather such protections were extended to all incorporated territories of the United States. In the 150 years since Dred Scott, the Court has discussed two distinct lines of demarcation relevant for determining detainee rights. These two jurisprudential lines are: distinguishing between individuals and inside and outside of the United States, and distinguishing between citizens and noncitizens.

The “peculiarization” of American Indians throughout large swaths of American history involved the recognition of social and cultural elements within tribal societies that served to justify, in the minds of the dominant society, the marginalization and suppression of Indian tribes. This chapter examines how this strategy of peculiarization morphed from an ideological conceit into an instrumentality of law that became the underpinning for a radicalized plenary federal power that allowed the national government to empire at will over tribal nations and Indian people. In particular, the chapter considers how legal concepts like incorporation and dependency evolved over the years to inhibit, if not totally suppress, the formative ethos of legal pluralism. In the process, the chapter references the work of Giorgio Agamben and his notion of homo sacer through which he examines the exercise of exceptional sovereign power over an increasingly powerless subject.

In the 1890s America’s growing global influence confronted the tension between republicanism and empire after America acquired foreign territories following the Spanish-American War. Heated legal debates over governing these territories within the American constitutional tradition resolved themselves in a series of pro-colonial Supreme Court cases, the Insular Cases. However, both popular and professional imaginations were won over by the anti-imperial missionary vision as America retreated from direct colonial administration. The missionaries effectively controlled American exposure to information about China and other non-European nations. The chapter also details missionary debates on how to export Christianity as an applied enterprise, and how these directly presaged debates on how to export American law. The chapter discusses how this international missionary idealism fused with the domestic racism underlying the Chinese Exclusion Acts.

Chapter 5 examines the origins, emergence, and constitutionally entrenched status of the US–Puerto Rico partially independent union. Puerto Rico is a paradigmatic example of a post-imperial state’s use of partial independence to obtain the advantages of empire without its costs. The question of Puerto Rico’s status is highly controversial. Many believe that the territory is a mere colony of the US. Still others believe that the territory’s powers are formally entrenched. This chapter will argue that the territory is indeed a PIT (rather than a colony) and that its powers are entrenched by unwritten convention. The chapter discusses Puerto Rico’s early impoverished status as a US colony, the political rationale and cataclysmic events that helped inspire its emergence as a PIT, its conventionally entrenched status as compared to other views, and the counterequilibrium event of the Vieques controversy. It then concludes by anticipating and refuting some counterarguments to conventional entrenchment theory.

Sam Erman, Associate Professor at the University of Southern California Gould School of Law, discusses the Constitution’s transition from the age of Reconstruction to the age of the American Empire. Erman reveals how the traditional package of citizenship, rights, and statehood came to be displaced in the half century following the Civil War, in what effectively amounted to a “constitutional counterrevolution.” African Americans, Native Americans, foreign nationals, and laborers were affected, but so too especially were those persons “acquired” by the ever-expanding nation in territories such as Guam, Puerto Rico, and the Philippines. As the Supreme Court ultimately made clear in a series of turn-of-the-century decisions known collectively as the Insular Cases, the Constitution did not follow the flag. Chapter 5’s primary source documents also address the Chinese Exclusion Act, the (continuing) controversy over birthright citizenship, and the steady erosion of the tribal sovereignty rights of Native Americans.

Chapter 2 analyzes the political, legal, and ideological debates that followed the Spanish-American War of 1898. It shows how lawyers such as Elihu Root and John Bassett Moore helped the McKinley and Roosevelt administrations to legitimize imperial actions in the Philippines and Panama. It also covers the debate over the constitutionality of imperial rule. What mattered most in justifying US empire—and in the Supreme Court ruling that such empire was constitutional—was a mix of legal doctrine and ideological assertions connected to transatlantic discourses of civilization. To be a “civilized” power meant to undertake a “civilizing” mission. These arguments were more or less sincere, depending on the individual making them, but they reveal the broader plausibility of this discursive frame in these important years.