Can the Constitution Govern America's Sprawling Empire?

The dawn of this century has marked the rise of the American periphery. To understand what I mean, consider presidential politics. In the last century, American voters preferred their presidents to be firmly rooted in the heartland—Plains, Georgia (Jimmy Carter), Tampico, Illinois (Ronald Reagan), Hope, Arkansas (Bill Clinton).

How things have changed! This year, one candidate, Ted Cruz, is the Canadian-born son of a U.S. citizen mother and a (then) non-citizen father. In 2008, the nation elected the Hawaii-born son of a citizen mother and a non-citizen father—a president who was partly raised in Indonesia. He defeated a Republican candidate born in the Panama Canal Zone, whose ticket-mate was the governor of Alaska; for re-election, he defeated a Republican presidential candidate whose father was born in Mexico.

We are in what academics might call a “post-colonial” phase. It’s not all about the heartland any more.

The U.S. Supreme Court, meanwhile, is still a pretty metropolitan bunch: its members come from New York (only Staten Island doesn’t have its own justice), California (2), and New Jersey (1). Chief Justice John Roberts (Indiana) and Justice Clarence Thomas (Georgia) have “salt of the earth” pedigrees—but both of them reached their posts by work performed entirely inside the Beltway.

On the other hand, Justice Sonia Sotomayor, though Bronx-born, is the child of Puerto Rico-born parents. She wrote her Princeton thesis on Luis Muñoz Marin, political architect of modern Puerto Rico. She, at least, must understand that what today is called “the United States of America” is not the neat construct taught in civics class—federal structure, three-branch government, happy citizens under what poet W.H. Auden called “liberty’s masterful shadow.” In the post-colonial age, American government, and citizenship, are more complicated than that.

The mismatch between constitutional theory and national reality began early. Thomas Jefferson believed that the Constitution did not permit the nation to acquire new territory. Faced with the chance to buy Louisiana, however, he bit his tongue. Since then, the Constitution’s language hasn’t changed, but years of conquest, purchase, and outright theft have given the nation two states, Alaska and Hawaii, physically separated and culturally distinct from the lower 48; hundreds of Indian reservations, Rancherias, Pueblos, and Native Villages, which are separated “dependent nations” incorporated through treaties; a self-governing “Commonwealth” called Puerto Rico; and more than a dozen other “insular areas” such as American Samoa, Guam, and the U.S. Virgin Islands.

Though most news coverage concentrates on the big metropolitan cases—religious freedom, labor unions, abortion, the Affordable Care Act—the outposts of empire have a place on this year’s docket. Alaska’s unique status will come up in Sturgeon v. Frost, the “wandering hovercraft” case, which challenges federal management of the vast majority of the state’s land. Indians have already appeared: in Dollar General Corporation v. Mississippi Band of Choctaw Indians, argued in December, the Court must decide whether Indian tribal courts can hear lawsuits against corporations for torts they allegedly commit on the reservation.

Tribes, and tribal courts, will be back at 1 First St NW later this term. Nebraska v. Parker is a challenge to the Omaha Tribe’s right to tax a liquor store located on land ceded to the tribe by treaty in 1854 but sold by it to private buyers, under a statute passed by Congress, beginning in 1882. Tribal courts are the issue in United States v. Bryant. In 2011, Michael Bryant, an enrolled member of the Northern Cheyenne tribe of southeastern Montana, was indicted in federal court on two counts of domestic assault, and also charged as a “habitual offender.” The “habitual offender” status—which can raise the sentence to as much as 10 years in prison—derived from multiple prior misdemeanor domestic-violence convictions in Northern Cheyenne Tribal Court. If those cases had been heard in state or federal court, Bryant would have been entitled to appointed counsel. But the Sixth Amendment doesn’t apply to tribal courts, and the Indian Civil Rights Act does not require tribes to supply counsel for offenses that carry less than a year in jail. Bryant is challenging the indictment on Sixth Amendment grounds.

Tribal sovereignty advocates are alarmed—an amicus brief by the National Congress of American Indians says that Congress has authorized tribal courts to conduct these trials without counsel, and that a victory for Bryant would “seriously impede” efforts to control domestic violence in Indian country—which is endemic.

The Court is relentlessly whittling away at tribal-court jurisdiction; a victory for Bryant would reduce their power to try members of the tribe, even with congressional approval. During the Dollar General argument, Justice Anthony Kennedy grew visibly perturbed on the bench at the idea that “extra-constitutional entities” could try American corporations. Will that discomfort lead him to hobble the ability of tribes to try even their own members? It’s one thing to throw a protective arm over Dollar General; another thing to shield a multiple-count abuser.

Speaking of “sovereignty,” is Puerto Rico a “separate sovereign” from the United States, or just a subdivision, like a territorial government? The U.S. acquired Puerto Rico from Spain after the Spanish-American War. At first it was governed directly from Washington, but in 1950 Congress gave the people permission to adopt their own constitution, with elected leaders and a separate court system.

Two criminal defendants were convicted in Puerto Rico of federal gun charges. After their federal trial, the Commonwealth brought charges in its own courts for the same offenses; the defendants moved to dismiss, claiming the prosecution violated the Fifth Amendment rule that no person “shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.” At least since 1922, the federal courts have applied the “dual sovereignty” doctrine. Because the federal government and a state government are two different “sovereigns,” the reasoning goes, each may try a defendant in its own courts without violating the double-jeopardy rule.

But Puerto Rico is not one of the “several states”; the two defendants appealed, and the Puerto Rico Supreme Court earlier this year decided that Puerto Rico is not a separate sovereign from the United States, meaning the defendants could not be retried. The Commonwealth is looking to the Court to reinstate the prosecution. The result will be a paradox either way; if Puerto Rico loses, it will be because its own courts denied its sovereignty; if it wins, it will be because it used the court of a “foreign sovereign” to set aside the decision of its own court.

Down the road, the Court may face the paradoxes of the periphery even more squarely. Last June, a panel of the D.C. Circuit held that Americans born in American Samoa are not U.S. citizens by birth—despite the Fourteenth Amendment’s guarantee that “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”

By statute, a person born in Samoa is a “non-citizen national,” whatever that means. The plaintiffs demanded recognition as citizens. They were opposed not just by the United States, but also by the Samoan government. That government fears the extension of citizenship to Samoa; it might threaten the territory’s laws with the Equal Protection Clause, which might be used to cut back the territory’s laws limiting sale of communal and family land to non-Samoans. This week, the plaintiffs announced that former Solicitor General Ted Olson would be representing them in a petition to the U.S. Supreme Court.

And behind the Samoa case is Hawaii, where the state government, with federal support, is trying to restore to native people some shred of the nation they lost when the independent kingdom was annexed by the U.S. in 1898. The plan is to create a “government” elected by descendants of the native people to advocate for their interests—a new Indian tribe, in effect. When a vote was held for delegates to a constitutional convention, however, opponents of the plan convinced Justice Kennedy to block counting of the votes “pending further order” from him or the Court. (The election has now been cancelled.)

The American Constitution was written for a coastal republic of 13 states and ran into trouble soon after. It now governs, awkwardly, an empire. The metropolitan figures on the Court can decide issues for imperial subjects without much knowledge, or even concern, over what their decisions do to life on the periphery. After 225 years, that paradox remains unresolved.