Beyond States: A Constitutional History of Territory, Statehood, and Nation-Building
Abstract
The United States has always been more than simply a group of united states. The constitutional history of national union and component states is linked to a third category: federal territory. This Article uses an integrated history of territory, statehood, and union to develop a new framework for analyzing constitutional statehood. Three historical periods are crucial—the Founding Era, the Civil War, and Reconstruction—as times when statehood was especially malleable as a matter of constitutional law. During each of those formative periods, the most important constitutional struggles about statehood and the union involved federal territories.
Conflicts about territories reveal an important distinction between theories of states’ constitutional authority to participate in national politics (the “skeleton” of statehood) and their constitutional authority to resist the national government (the “muscle” of statehood). The skeletal authority of states to participate in federal politics has been legally explicit and essential since the Articles of Confederation. By comparison, advocates for muscular states’ rights have relied on dubious inferences and historical distortions.
During the Founding Era and the Civil War, pivotal disputes concerning territories were resolved to favor the skeleton of representational statehood instead of the muscular statehood of antifederal resistance. During Reconstruction, however, the Supreme Court created new doctrines of muscular statehood that were based on inaccurate histories of the Founding and the Civil War. Judicial decisions like the Slaughter-House Cases and the Civil Rights Cases applied those doctrinal theories of muscular statehood to limit individual rights and congressional power under the Reconstruction Amendments. In the late twentieth century, such precedents gained force after the confirmation of politically conservative Supreme Court Justices, and similar doctrines might be even more powerful with the modern Court’s conservative supermajority.
This is not how constitutional law should work. Muscular statehood achieved doctrinal success much later than most observers assume, and it has neither the positivist pedigree nor the compelling results to justify antimajoritarian constitutional status. Although the constitutional skeleton for states’ participation in the federal government is foundationally important, constitutional doctrines of muscular statehood to resist national democracy should be presumptively disfavored.