Empire and the Reconstruction Constitution: Legal Change beyond the Courts
Sam Erman
Across 1898-1900, a sea change in constitutional thought made itself felt on Puerto Rican
shores. When U.S. troops invaded the island as part of a war with Spain that would end with U.S.
sovereignty extending there as well as over Hawai‘i, Guam, and the Philippines, U.S. military
commanders subscribed to the common belief that the Civil War settlement would determine
Puerto Rican status, rights, and governance. On this view, the Fourteenth Amendment
guaranteed acquired peoples U.S. citizenship with associated “privileges” and “immunities,” the
Civil War forbade deannexation, and Dred Scott holdings that that had survived war and
amendment demanded that even U.S. “colonies” one day become states. Governance, many
presumed, would follow traditional territorial models. Twenty months later, the War Department
and political branches responsible for administering Puerto Rico had vindicated none of these
consequences of annexation. Instead, they claimed and asked the Supreme Court to countenance
flexibility for themselves in determining the status, rights, and governance of new acquisitions.
The shift followed concerns that extending such benefits to Filipinos would degrade the U.S.
body politic with what officials deemed to be a large and racially degraded people. The
Reconstruction Constitution of yesteryear, they insisted, should and would give way to the
Imperial Constitution of tomorrow.
Through close attention to the words and deeds of those responsible for governing Puerto
Rico, this Essay seeks to describe the substance and process of U.S. constitutional change on an
issue a contemporary perceived “led to a bitterness which almost threatened to resemble the
1
controversies over the Fugitive Slave Law and the Missouri Compromise.”1 As that phrasing
suggests, the constitutional conflict over whether imperial expansion could be squared with the
consequences of emancipation long predated U.S. invasion of Puerto Rico. Tellingly, the U.S.
imperial turn that brought Puerto Rico into the U.S. empire-state also ended what was the longest
lull to date in U.S. expansion. Following ratification of the Fourteenth Amendment (1868), the
United States had ceased acquiring new territories for nearly three decades. Opportunities to
annex the Dominican Republic and Hawai‘i respectively floundered in 1870 and 1893 in the face
of fears that U.S. citizenship, consequential constitutional rights, and eventual statehood for
ostensible racial inferiors would result.2 When the political branches finally annexed Hawai’i in
1898, looming war with Spain and a concerted campaign to cast leading Hawai‘ians as
essentially white animated the effort.3 Consistent with anti-expansionists’ fears as to what the
Reconstruction Constitution required, Hawai‘ians received U.S. citizenship, traditional territorial
governance, rapid recognition as a state-to-be, and the constitutional rights of prior territorial
residents.4 The legal legacy of the Civil War thus remained as a significant impediment to any
future attempts to acquire permanent colonies in lieu of states in waiting.
In 1898, Reconstruction had not yet fully given way to white supremacy – at least in the
white imagination. White-supremacist Democrats were still in the midst of implementing racial
Frederic R. Coudert, “The Evolution of the Doctrine of Territorial Incorporation,” 60 AM. L.
REV. 801, 801-03 (1926).
2
Eric T. Love, Race over Empire: Racism and U.S. Imperialism (Chapel Hill: University of
North Carolina Press, 2004), 41,64, 67, 103-04, 110-12, 129-30, 150.
3
Love, Race over Empire, xvii, 101-02, 106, 146, 151-54, 156; Thompson, 543-45.
4
Lanny Thompson, “A Comparison of the Insular Territories under U.S. Dominion after 1898,”
Pacific Historical Review 71 (Nov. 2002): 541-47; Hawai‘ian Organic Act, 31 Stat. 141, 141,
Pub.L. 56–331, sec. 4 (30 Apr. 1900); Downes v. Bidwell, 182 U.S. 244, 305 (White, J.,
concurring); id., at 347 (Fuller, C.J., dissenting).
1
2
caste across the U.S. South through Jim Crow and state-constitutional disfranchisement.5 Still
seeking a national consensus that Reconstruction had been a tragic error and not yet certain that
Reconstruction had been irreversibly vanquished,6 many opposed federal imperial rule on the
ground that it revived the “evils” of Reconstruction. Also unwilling to welcome purported racial
inferiors into the national family, these anti-imperialist Democrats favored releasing the
Philippines and thereby avoiding the choice between racism and regionalism. To make the case,
they argued that the Reconstruction Amendments that they had long sought to circumvent now
governed and doomed Republicans’ imperial experiment.
Republican administrators and lawmakers divided over how to relate empire to what the
Civil War had wrought. Some accelerated their party’s ongoing retreat from Reconstruction by
5
See, e.g., Wang Xi, The Trial of Democracy: Black Suffrage and Northern Republicans, 18601910 (Athens: University of Georgia Press, 1997), 216-66; C. Vann Woodward, Origins of the
New South, 1877-1913, rev. ed. (Baton Rouge: Louisiana State University Press, 1999 [1951]),;
C. Vann Woodward, The Strange Career of Jim Crow commemorative ed. (Oxford: Oxford
University Press, 2001),; Charles W. Calhoun, Conceiving a New Republic: The Republican
Party and the Southern Question, 1869-1900 (Lawrence: University Press of Kansas, 2006),4,
226-67; Glenda Elizabeth Gilmore, Gender and Jim Crow: Women and the Politics of White
Supremacy in North Carolina, 1896-1920 (Chapel Hill: University of North Carolina Press,
1996); Richard H. Pildes, “Democracy, Anti-Democracy, and the Canon,” Constitutional
Commentary 17 (2000): 295-319.
6
Woodward, Origins, 456-468; David Blight, Race and Reunion: The Civil War in American
Memory (Cambridge: Harvard University Press, 2001), 148-49, 295, 358, 394 & n.20, 395-97
(quoting Thomas Cripps, Slow Fade to Black: The Negro in American Film (Oxford: Oxford
University Press, 1993), 44 (quoting Raymond Allen Cook, Fire from the Flint: The Amazing
Career of Thomas Dixon (John F. Blair, 1968), 140)), 111-12, 263, 394-97; Maxwell
Bloomfield, “Dixon’s “The Leopard’s Spots”: A Study in Popular Racism,” American Quarterly
16 (1964): 387, 392; Nina Silber, The Romance of Reunion: Northerners and the South, 18651900 (Chapel Hill: University of North Carolina Press, 1993), 185-86; Cecilia Elizabeth
O’Leary, To Die For: The Paradox of American Patriotism (Princeton, N.J.: Princeton
University Press, 1999), 132-33, 194-208; Eric Foner, Reconstruction: America’s Unfinished
Revolution 1863-1877 (New York: Harper & Row, Publishers, 1988), xix, xx, 609-10; Mark
Elliott, Color-Blind Justice: Albion Tourgée and the Quest for Racial Equality from the Civil
War to Plessy v. Ferguson (Oxford: Oxford University Press, 2006), 308; Justin Behrend, “Facts
and Memories: John R. Lynch and the Revising of Reconstruction History in the Era of Jim
Crow,” Journal of African American History 97 (2012): 427-448.
3
stressing the supposed racial inferiority of acquired peoples as reasons to deny them status,
rights, and home rule.7 Others rejected any hint of equivalence between dismantling
Reconstruction and instituting imperial governance. In both cases, those whose party had long
criticized Democratic violations of the Fourteenth and Fifteenth Amendments now insisted that
those authorities little limited federal officials in governing new acquisitions. Able to put those
views into practice as members of the national majority party, these nonjudicial officials worked
what opponents and allies alike recognized as a revolution in constitutional thought and practice.
They met legal-political expectations that acquisition heralded inclusion and membership with
visions of a Constitution amenable to imperial governance.
In a reflection of the capacity of empire to confound partisan divisions over
Reconstruction, the Supreme Court constituted the most likely guarantor of the legal legacy of
Reconstruction that nonjudicial Republican officials now sought to escape. With a majority of its
members appointed by prior Republican administrations, the Court was the product of an earlier
generation of partisan alignments.8 An institution structured always to be somewhat out of time,
it was an open question whether the justices would enforce the Reconstruction Constitution to
the detriment of empire.9
As I have argued elsewhere, events like those described in this Essay run counter to
7
Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction (Cambridge:
Cambridge University Press, 2011), 7, 10, 182-186; Elliott, Color-Blind Justice, 248; Rebecca J.
Scott, Degrees of Freedom: Louisiana and Cuba after Slavery (Cambridge, Mass.: Harvard
University Press, 2005), 87; Woodward, Origins, 322.
8
Members of the Supreme Court of the United States,
http://www.supremecourt.gov/about/members.aspx (Jan. 8, 2014).
9
E.g., Karen Orren & Stephen Skowronek, The Search for American Political Development
(New York: Cambridge University Press, 2004); Keith Whittington, Political Foundation of
Judicial Supremacy (Princeton, N.J.: Princeton University Press, 2007), 52-53, 71-72.
4
theories that assign causal power solely to politics or courts.10 Contrary to purely political
explanations, law and courts occupied central roles in these dynamics. Nearly all administrators
and legislators involved had legal experience or training. They framed claims in constitutional
terms, expressed fidelity to law and judicial supremacy, and subjected themselves to the
structures and norms of legal discourse.
Though constitutional change was afoot, the machinations took place outside of the
courts. The new Imperial Constitution thus took shape well before the Supreme Court was called
upon to validate it. Aware that the justices would speak last, elected and administrative officials
shaped the issues that the Court would face. They crafted legal analyses, facilitated (and
impeded) test cases, and moved ahead with imperial governance that the Court might be tempted
to treat as a fait accompli. The Court might get the last word, but it would be in a conversation of
other officials’ choosing.
I also join scholars of administrative constitutionalism in emphasizing that courts and
politics also do not exhaust the causal field in combination. Nonjudicial administrators
participated extensively in the dynamics above.
As nonjudicial officials formulated and pursued their competing constitutional visions,
their shared commitment to legal reasoning was paired with common recourse to languages of
comparative race and empire. Analogies of islanders to former U.S. slaves and their descendants
or of U.S. island rule to ostensibly imperialistic Reconstruction policies were one approach.
Another involved deprecation of Spanish imperial rule as contrary to rights, freedom, and selfgovernment and of the “Latin race” as lacking the capacity for democratic politics. English
10
Sam Erman, Citizens of Empire: Puerto Rico, Status, and Constitutional Change, 102 CAL. L.
REV. 1181 (2014). This paragraph and the two that follows draw on scholarship reviewed at
length in Erman, Citizens of Empire. I do not repeat that discussion here.
5
approaches to colonial rule also drew attention, with decisions about which if any merited
emulation tracking views on the desirability of empire and on the relative similarities of one or
another new U.S. island people to Canadians, Jamaicans, Indians, among other British imperial
subjects.
The Essay unfolds in three Parts. Initially, Part I recounts, generals commanding the U.S.
invasion and early occupation of Puerto Rico anticipated its annexation and integration into the
United States. Under the thrice-amended postbellum Constitution, they led Puerto Ricans to
expect, territorial status, eventual statehood, all constitutional rights extent in territories, and U.S.
citizenship would be the results of the U.S. invasion. But then President McKinley radically
altered the political calculus in late 1898 by seeking Senate approval of a peace treaty with Spain
annexing the Philippines.
Decrying Filipinos as racially degraded peoples who could never be incorporated into
Union, Part II relates, opponents equated expansion with U.S. citizenship, full constitutional
rights, and eventual statehood for Filipinos and concomitant ruin for the United States. McKinley
Administration allies responded that expansion could be divorced from each of these
constitutional contingencies. When it came time to vote, the Senate reserved the constitutional
question, voting both to ratify the treaty and to declare that doing so was not intended to
transform Filipinos into U.S. citizens or annex the Philippines permanently.
After President McKinley installed prominent Wall Street lawyer Elihu Root as Secretary
of War, Part III explains, the Department prioritized securing an imperial U.S. future above
defending legal legacies of the Civil War past. Aware that his Department’s actions could be
treated as precedents by Congress and the courts, Root influentially proclaimed through words
and deeds that that assertedly racially inferior Puerto Ricans need not and should not receive
6
U.S. citizenship, full constitutional protections, eventual statehood, or self-government. When
Congress took up Puerto Rican affairs in 1900, lawmakers saw an opportunity to subject
potential approaches to Filipino governance to judicial scrutiny without risking a judgment
applicable to the Philippines. To test whether the Supreme Court could be convinced to decline
to declare Filipinos to be U.S. citizens, the Constitution to apply in full there, or the Philippines
to be a proto-state, Congress legislated for Puerto Rico along the ungenerous lines that Root had
proposed.
Reconstruction Constitution Ascendant
As the U.S. invasion of Puerto Rico got underway in late July 1898, military commanders and
War Department officials quickly came to treat Spanish laws rather than Spanish arms as the
enduring foe. The Queen’s troops rapidly ceded territory. They left behind a constitutional
legacy of second-class status for Puerto Ricans within a Spanish empire that U.S. military
officials associated with backwardness and tyranny. U.S. constitutional norms would sweep
away retrograde Spanish practices, the commanders of the invasion presumed. Early U.S.
declarations and policies followed this path. Even President McKinley’s determination to annex
the Philippines and its supposedly racially degraded people did not cause executive officials to
renounce the Reconstruction Constitution.
In Puerto Rico, U.S. officials encountered a people caught between empires. Because
Spain remained the technical sovereign, fighting for the United States was treason for which
islanders could be and were executed.11 But given U.S. military superiority, those who served as
11
Nofi, The Spanish-American War, 252-56; Delgado Pasapera, Puerto Rico, 591-92; Oliver,
7
Spanish troops faced the prospect of a battlefield “slaughterhouse.”12 U.S. commanders
navigated the delicate situation by increasing the service and commitment that they demanded
from Puerto Ricans in proportion to growing U.S. authority over the island. Initially, lofty and
vague U.S. promises accompanied modest requests. On July 28, General Nelson A. Miles
promised “the liberal institutions of our government to islanders,” an ambiguous phrase that
conjured visions of U.S. citizenship with full constitutional rights and territorial status that would
ripen into statehood.13 Here, creoles hoped, was the equality that Spain had long denied them.14
Miles’s only request was that islanders refrain from “armed resistance.”15 Two weeks later, with
Spanish forces routed, U.S. and Spanish representatives reached an agreement.16 Spain would
evacuate Manila, Puerto Rico, and Cuba. Puerto Rico and Guam would be “ceded to” the United
States. Spain would “relinquish . . . sovereignty . . . and title” in Cuba. “Disposition” of the
Philippines would await peace negotiations.17 Now, the promises became more specific and the
demands more far-reaching. Future military-governor Guy Henry declared: “The forty five states
. . . unite in vouchsafing to you prosperity and protection as citizens of the American union.”18
Roughing it; Mariano Negrón Portillo, Cuadrillas anexionistas y revueltas campesinas en Puerto
Rico, 1898-1899 (Río Piedras: Centro de Investigaciones Sociales, Universidad de Puerto Rico,
Recinto de Río Piedras, 1987), 15-26; Rivero, Crónica, 274-76, 280, 429-37.
12
Juan Ramos y Velex to Federico Degetau, 27 Jul. 1898, CIHCAM 2/III/69.
13
Nelson A. Miles to the Inhabitants of Porto Rico, Headquarters of the Army, Ponce, Puerto
Rico, 28 Jul. 1898, in Annual Reports of the War Department for the Fiscal Year Ended June 30,
1898: Report of the Secretary of War. Miscellaneous Reports (Washington, D.C.: GPO, 1898),
41.
14
Henry K. Carroll, Report on the Island of Porto Rico (1899), 55.
15
Miles to Inhabitants of Porto Rico, 28 Jul. 1898, 41; see also, e.g., Parole of M. Gonzalez, 10
Aug. 1898, AG/OG/CG/179/Justicia, Ciudadanía, 19 octubre 1898-1899, C.F. 140, D.P. 1898;
Parole of Rafael Cintron, 9 Aug. 1898, AG/OG/CG/179/Justicia, Ciudadanía, 19 octubre 18981899, C.F. 135, D.P. 1898.
16
Sidney Shalett, “War Suspended, Peace Assured,” New York Times, 13 Aug. 1898, 1.
17
Shalett, “War Suspended.”
18
“General Henry’s Words of Wisdom,” San Francisco Call, 19 Oct. 1898, 1; Hall, Porto Rico,
167.
8
Officials within the State Department opined that naturalization inevitably followed annexation
under international law.19 U.S. military authorities also required some island officeholders to
swear to “bear true faith and allegiance” to the United States, defend its Constitution “against all
enemies,” and “renounce forever every . . . state or sovereignty . . . particularly the King of
Spain.”20 Because such an oath extinguished all non-U.S. nationalities, it was traditionally
administered only at the moment of naturalization.21
The U.S. War Department further integrated Puerto Ricans into the U.S. order through
the policies that it administered and that the President and the Departments of State and Treasury
helped set. Amidst rumors “that Chinese agents were preparing to flood Puerto Rico”22 to
circumvent the Chinese Exclusion Act (and despite admitted lack of statutory authority), officials
began enforcing Chinese Exclusion at Puerto Rican ports.23 They soon applied other U.S.
immigration laws as well.24 McKinley separately extended to Puerto Rico the U.S. statutory
See “Citizenship of the Porto Ricans,” San Francisco Call, 19 Oct. 1898, 1; “Citizenship in
Puerto Rico: Question of the Status of the Island’s 800,000 Inhabitants,” New York Times, 19
Oct. 1898, 1; “News Comes to Washington,” Chicago Daily Tribune, 19 Oct. 1899, 12.
20
See, e.g., Oath of Allegiance of Jesus [M Rossy y?] Calderón, 19 Oct. 1898,
AG/OG/CG/179/justicia, ciudadanía, 19 octubre 1898-1899.
21
E.g., U.S. Citizenship and Immigration Services, Naturalization Oath of Allegiance to the
United States of America, http://www.uscis.gov/us-citizenship/naturalization-test/naturalizationoath-allegiance-united-states-america (25 June 2014).
22
“Chinese Exclusion in Puerto Rico,” New York Times, 21 Jan. 1899, p. 4.
23
Memorandum, [1 May 1900?], MD NARA 350/5A/184; G. Meiklejohn to Secretary of
Treasury, 17 Jan. 1899, MD NARA, 350/5-A/23/184; G. Meiklejohn to Guy Henry, 17 Jan.
1899, MD NARA, 350/5-A/23/184; Guy Henry to Assistant Secretary of War, 9 Feb. 1899, MD
NARA, 350/5-A/23/184:1; G. Meiklejohn to Secretary of Treasury, 23 Feb. 1899, MD NARA,
350/5-A/23/184; “Chinese Exclusion.”
24
Insular Affairs War Department Record Card, Immigration to and From Porto Rico, General
Record 1-3, MD NARA 350/4/84; Federico Degetau to Secretary of Treasury, 5 Oct. 1902,
CIHCAM 3/VI/56. The War Department publicly declared U.S. immigration rules and
regulations to be in effect throughout militarily occupied territories on April 14, 1899. Philippine
Customs Service, Chinese and Immigration Circulars (Annotated), vol. 1 (Manila, Bureau of
Printing, 190[8?]), 89.
19
9
requirement that trade between U.S. ports be via ships registered under the U.S. flag.25 Treasury
Department officials declared Puerto Rican ships eligible for the coasting trade notwithstanding
their lack of U.S. registers.26 As to the sensitive topic of tariffs, executive-branch officials were
unwilling to implement free trade without congressional participation, and Puerto Rico continued
to be treated as from “a foreign country within the custom laws.”27 The Assistant Secretary of
State, however, came to assert that Senate ratification of a treaty ceding Puerto Rico to the
United States would make Puerto Rico “an integral part of the United States” within which the
Constitution demanded tariff uniformity.28
War Department officials’ actions made some sense. All lands acquired before the Civil
War were or would soon become states. Their nontribal residents were U.S. citizens. And those
in territories, courts had indicated, held the rights elaborated in the Bill of Rights in common.29
Moreover, the Fourteenth Amendment, the Civil War, and the Dred Scott case were regularly
read to require eventual statehood and citizenship with associated rights throughout U.S.
sovereignty. Lawmakers had in fact just annexed majority-nonwhite Hawai’i notwithstanding
largely unrebutted claims that doing so would bring such status and rights. It was easy to
envision that integration of Puerto Rico, which the census would soon deem to be majority
white, would raise even fewer objections.
Puerto Rico’s trajectory changed abruptly in late 1898 when President McKinley
Héctor I. Santos Santos, “Cabotage Laws: A Colonial Anachronism,” Revista de derecho
puertorriqueño 36 (1997): 3; Customs Tariff and Regulations for Ports in Porto Rico in
Possession of the United States (Washington, D.C.: GPO, 1898), MD NARA 350/8/C25-5.
26
Secretary of Treasury to Secretary of War, 4 Mar. 1899, MD NARA 350/8/C170-2.
27
[?] Meiklejohn to Guy Henry, 26 Jan. 1899, MD NARA 350/8/80-2; DeLima v. Bidwell, 182
U.S. 1, 180 (1901) (quoting 30 Stat. 151 (1897)).
28
Acting Secretary of War to Attorney General, 20 June 1899, 3, MD NARA 350/8/12/C-182-70
(quoting U.S. Constitution, Art. I, sec.8; Loughborough v. Blake, 18 U.S. 317, 319 (1820)).
29
Thompson v. State of Utah, 170 U.S. 343, 349 (1898) (quoting Late Corporation of Church of
Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 44 (1890)).
25
10
exercised his prerogative as the military victor by seeking annexation of the Philippines.30 He
argued that Filipinos’ inability to govern themselves left them vulnerable to other imperial
powers. Any less preemptive course of action would entail “more serious complications.”31
McKinley did not recommend extending the Reconstruction Constitution to Filipinos. Like most
white mainlanders, he judged them racially inassimilable, and he subscribed to the widely held
view that tropical climates were unsuitable to white settlers, which alone could make colonies
eligible for self-government.32 But he offered no constitutional alternative. Instead, he and
William R. Day, who resigned as Secretary of State to head McKinley’s negotiating commission,
groped for solutions. Concerning Cuba, they sought to permit U.S. governance without taking on
Cuban debt. Day treated sovereignty as the dividing line between obligations and control and
stipulated that the treaty include the phrase: “Spain hereby relinquishes all claim of sovereignty
over and title to Cuba.”33 Though the language Day secured declaring that “Spain hereby cedes
to the United States” Puerto Rico, Guam, and the Philippines also emphasized Spanish rather
than U.S. obligations, it did not assure that those islands would remain outside U.S.
sovereignty.34 Instead, McKinley initially looked for ways to honor the Reconstruction
Constitution while minimizing its impact. He proposed provisions denying U.S. citizenship to
uncivilized tribal people and to “Mongolians and others not actually subjects of Spain.”35 The
30
Hay to Day, 26 Oct. 1898, in Papers Relating to the Treaty with Spain, S. Doc. No. 148, 156th
Cong., 2d sess. (1901), 35.
31
Love, Race over Empire, 176; Hay to Day, 28 Oct. 1898, in Papers Relating to the Treaty with
Spain 37.
32
Love, Race over Empire, 181.
33
A Treaty of Peace between the United States and Spain. Message from the President of the
United States, Transmitting a Treaty of Peace between the United States and Spain, Signed at the
City of Paris, on December 10, 1898. S. Doc. No. 62, pt. 1, 55th Cong., 3d sess. (Washington,
DC: GPO, 1899), 53; see also id., 3, 22-62.
34
Id., 53; see also id., 4.
35
Hay to Day, 29 Nov. 1898 , in Papers Relating to the Treaty with Spain, 61. An apparent
11
first exclusion had appeared in the treaty annexing Alaska. The second had roots in Chinese
Exclusion. Because Spain recognized jus soli citizenship, these exceptions together tracked the
Fourteenth Amendment approach to people who were neither born nor naturalized in a place or
who were not subject to its jurisdiction. But ultimately, McKinley settled for avoidance.
Questions of political status were left to Congress, with the Constitution only as a backstop. 36
When Spain objected, U.S. commissioners declared that “Congress . . . may safely be trusted not
to depart from its well settled practice”; it “never has enacted laws to oppress or abridge the
rights of residents within its domain.”37
Debate now shifted from Paris to Washington. The U.S. military had set Puerto Rico on a
course for U.S. citizenship, full constitutional rights, and eventual statehood. The prospect of the
same status and rights for Filipinos now triggered a constitutional crisis.38
legacy of the earlier presumption that U.S. citizenship would accompany annexation found its
way into a provision in the final treaty that guaranteed Spaniards the same judicial rights in
Puerto Rico as “citizens of the country to which the courts belong.” Art. XI. An indication that
this understanding of the clause is correct is Secretary of War Elihu Root’s strained attempt to
reach the opposite result by reading citizens as populace and “belong” as “operate under” to
produce the claim: “By citizens is meant inhabitants owing allegiance to the authority
maintaining law and order.” Elihu Root to George Davis, 19 Feb. 1900, MD NARA
350/5A/1137-22.
36
Id., 9. For expansionist arguments that the Treaty of Paris trumped the Constitution, see [Elihu
Root?], Untitled memorandum, n.d., MD NARA 350/5A/1444:9.
37
Annex 1 to Protocol No. 22, 10 Dec. 1898, in Treaty of Peace, 262.
38
For a sample of scholarship making progress on interrelationships among race, legal policy,
and empire, see Thompson, “A Comparison,” 535-574; Kramer, Blood,; Mark S. Weiner,
“Teutonic Constitutionalism: The Role of Ethno-Juridical Discourse in the Spanish-American
War,” in Christina Duffy Burnett and Burke Marshall eds., Foreign in a Domestic Sense: Puerto
Rico, American Expansion, and the Constitution (Durham, N.C.: Duke University Press, 2001),
48. Many Puerto Ricans viewed race as a continuum that incorporated a multitude of factors in
placing individuals. Miriam Jiménez Román, “Un hombre (negro) del pueblo: José Barbosa and
the Puerto Rican ‘Race’ Toward Whiteness,” Centro 8 (Spring 1996), 11, argues that African
appearance more than African ancestry drove many racial characterizations. Eileen J. Suárez
Findlay, Imposing Decency: The Politics of Sexuality and Race in Puerto Rico, 1870-1920
(Durham, N.C.: Duke University Press, 1999), 6-17, 23-24, 27, 37-39, describes a dominant
racial hierarchy structured around relative lightness and darkness in which a person’s place
12
The Imperial Turn and the Rising Constitutional Storm
McKinley’s decision to annex the Philippines brought long-simmering conflicts over U.S.
imperial expansion to a boil. Unlike Puerto Rico and Guam, the Philippines triggered mainland
whites’ fears of a flood of racial inferiors into the United States.39 A national network of AntiImperialist Leagues burst onto the scene. Democratic senators mobilized against the treaty.
Jurists provided accompanying legal analyses.40 As Republicans rallied to the President’s
defense, lawmakers and legal scholars clashed over the constitutionality of imperial expansion.
In the process, they probed prior instances of ambiguous status in the United States and the
relationship of such ambiguity to the legal legacy of the Civil War. The issue was this: How
could a nation bound by the Reconstruction Constitution both acquire and exclude the Filipino
people?
Drawing on deep wells of racism, anti-imperialists equated annexing the Philippines with
national cataclysm. They argued that acquisition would bring Filipinos U.S. citizenship, full
constitutional rights, and eventual statehood.41 Jurists rooted the legal portion of this claim in the
resulted from judgments about their morality, cultural activities, dress, speech patterns,
previously enslaved relations, wealth, social standing, classifications in official records, and
reputation); Luis A Figueroa, Sugar, Slavery, and Freedom in Nineteenth-Century Puerto Rico
(Chapel Hill: University of North Carolina Press, 2005), 204, points to rising official rates of
whiteness in post-emancipation Puerto Rico).
39
See, e.g., 32 Cong. Rec. 642; id., 959. My discussion of Senate debates on the Treaty of Paris
gratefully builds upon Michael Patrick Cullinane, Liberty and Anti-Imperialism, 1898-1909
(New York: Palgrave Macmillan, 2012), and Love, Race over Empire.
40
Robert L. Beisner, Twelve against Empire: The Anti-Imperialists, 1898-1900 (New York:
McGraw-Hill Book Co., 1968), 216, 219-20, 225.
41
Carman Randolph, The Law and Policy of Annexation with Special Reference to the
Philippines Together with Observations on the Status of Cuba (New York: Longmans, Green,
and Co., 1901), vii; Foreign in a Domestic Sense, 6.
13
Reconstruction Amendments. In their view, Wong Kim Ark, principles of public law, and the
predecessor statute to the Fourteenth Amendment all confirmed that nontribal people born within
U.S. lands were Fourteenth Amendment citizens.42 These new citizens would enjoy such
substantial constitutional rights as freedom of movement, mainland voting on the same terms as
whites, opportunities to compete for U.S. jobs, and free trade with the mainland.43 The spirit of
the 14th Amendment Apportionment Clause would require universal male suffrage.44 The Dred
Scott case and other precedents showed that the Bill of Rights operated in U.S. territories and
that statehood would eventually follow.45
Anti-imperialist Senate Democrats equated annexation with national perdition. Fidelity to
the Constitution would pollute the U.S. body politic with millions of racially degraded Filipinos.
Equally abhorrent was the alternative of acquiring and excluding Filipinos by violating
Democrats’ stylized reading of U.S. constitutional history. Making the arguments took
breathtaking gall. Democrats who had fought to preserve slavery and then reconstructed
postbellum racial caste now elevated equality and consent even as they plumbed the racist
depths. John McLaurin of South Carolina saw “a mongrel and semibarbarous population”
“inferior to but akin to the negro.”46 Democrat Donelson Caffery of Louisiana tarred Filipinos as
Carman F Randolph, “Constitutional Aspects of Annexation,” Harvard Law Review 12 (Dec.
1898), 299-301, 309-10; Simeon E. Baldwin, “The Constitutional Questions Incident to the
Acquisition and Government by the United States of Island Territory,” Harvard Law Review 12
(Jan. 1899), 406-07. That tribal Filipinos might be denied U.S. citizenship, Randolph wrote, did
not solve the problem, for millions of other racially inferior Filipinos would still become U.S.
citizens. Randolph, “Constitutional Aspects,” 305, 309-10.
43
Randolph, “Constitutional Aspects,” 308, 310; Baldwin, “The Constitutional Questions,”
especially 408.
44
Baldwin, “The Constitutional Questions,” 408-09.
45
Randolph, “Constitutional Aspects,” 292-93, 297-98; Baldwin, “The Constitutional
Questions,” 400-04.
46
32 Cong. Rec. 639, 641; Biographical Directory of the United States Congress, 1774-Present,
http://bioguide.congress.gov/biosearch/biosearch.asp (last visited 5 June 2014); see also 32
42
14
permanently “unfit . . . for the glorious privileges, franchises, and functions of an American
citizen.”47 But the former lieutenant in the Confederate army also lionized Abraham Lincoln and
the Preamble of the Constitution as enshrining government of, by, and for the people.48 George
Vest of Missouri asserted that “the Revolutionary war . . . was fought . . . exclusively against the
colonial system,” “taxation without representation,” and noncitizen subjects.49 Erasing his
service in the Confederate Congress, Vest savaged imperialism for replacing “consent of the
governed” with transformations of “millions of humans” into “mere chattels.”50 Yet he remained
loyal to the Dred Scott case of 1857, which he read to require that acquired lands eventually
become states.51 Denying U.S. citizenship to any nontribal person “within the jurisdiction of the
Government,” Vest asserted, would “void” the Fourteenth Amendment and betray a “result of
the war crystallized in the Constitution for all time and beyond question.”52 Caffery declared:
“We have no subjects . . . . Nationality is the equivalent of citizenship” here.53 Confirmation, he
claimed, came from the Slaughter-House Cases of 1873, which asserted that annexation made
new “inhabitants of Federal Territories” into “citizens of the United States.”54 According to the
two men, the Reconstruction Amendments would provide these new U.S. citizens “immunities
and privileges”55 while the Mormon Polygamy Cases would bring them “fundamental limitations
Cong. Rec. 837; Cullinane, Liberty and Anti-Imperialism, 58.
47
32 Cong. Rec. 438. Because the tropics were inhospitable to whites, these Senators contended,
no mixture of extermination and settlement would provide a solution. Id., 439, 565, 641.
48
32 Cong. Rec. 432-33.
49
Id., 93.
50
Id.; Biographical Directory.
51
Id., 93. Vest buttressed the argument by arguing that dissenting justices had largely agreed
with Taney as to the purpose of territorial acquisition. Id., 93-94, 436.
52
Id., 94. Vest described the jurisdiction requirement as also “obviously intending to exclude the
children of ambassadors and of persons in transit through the country.” Id.
53
Id., 434. The claim depended on overlooking American Indians.
54
Id., 433.
55
Id., 94, 433.
15
in favor of personal rights” that included those specified in the Bill of Rights.56 Vest and Caffery
only divided on the effect of the Fifteenth Amendment, which their party had spent years
circumventing. Turning it back on Republicans, Vest declared a right to suffrage.57 Preferring a
weak Fifteenth Amendment to a talking point, Caffery insisted upon state control of the
franchise.58
Expansionists and their allies did not promote Filipino inclusion. Instead, they answered
anti-imperialist Democrats by claiming that the Constitution gave the United States discretion in
addressing Filipino rights, status, and governance. According to legal scholar Christopher
Columbus Langdell, the Constitution did not require U.S. citizenship or full constitutional rights
for annexed people.59 Because the Fourteenth Amendment secured results of the Civil War,
Langdell wrote, it was aimed at states, not Congress.60 Its guarantee of U.S. citizenship to those
“born . . . within the United States” required birth in a state, not a territory.61 That the Thirteenth
Amendment barred slavery “within the United States, or any place subject to its jurisdiction”
confirmed a narrow reading of “United States.”62
McKinley’s Senate allies claimed that the Constitution permitted them to employ British
56
Thompson v. State of Utah, 170 U.S. 343, 349 (1898) (quoting Late Corporation of Church of
Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 44 (1890)), summarized id., 96;
32 Cong. Rec. 94, 96, 433.
57
Id., 94.
58
Id., 433.
59
Grace Williamson Edes, Annals of the Harvard Class of 1852 (Cambridge, Mass.: Privately
printed, 1922), 178-81; James Bradley Thayer, “Our New Possessions,” Harvard Law Review 12
(Feb. 1899): 464-485; C.C. Langdell “The Status of Our New Territories,” Harvard Law Review
12 (Jan. 1899): 365-392; William Schofield, “Christopher Columbus Langdell,” American Law
Register 44 (1907): 273-96
60
Langdell, “Status,” 376.
61
Langdell, “Status,” 365, 376.
62
Langdell, “Status,” 377.
16
imperial practices to govern Filipinos, whose racial inferiority they conceded.63 They thus
rejected the notion that the Revolutionary War or Dred Scott were bars to colonialism. Joseph
Foraker of Ohio noted that the revolutionary generation had initially sought merely to reform
British colonialism.64 Orville Platt of Connecticut dismissed Dred Scott as an anti-precedent
while Knute Nelson of Minnesota added that a half century of territorial status for Arizona and
New Mexico demonstrated congressional power over eventual statehood.65 McKinley’s allies
also denied that the Fifteenth Amendment enfranchised U.S. citizens or that the Revolution,
Declaration of Independence, Preamble to the Constitution, or even the Civil War stood for selfgovernment and universal suffrage. In Platt’s words, “The right of a citizen to vote guaranteed by
the fifteenth amendment! Women are citizens; [the illiterate and] minors are citizens; they do not
vote.”66 Similarly, Nelson contended, “taxation and representation do not go together.”67 The
U.S. constitutional norm was federal discretion in territories, the expansionists argued.
According to Platt, the Mormon Polygamy cases established that the “‘power of Congress over
the Territories is general and plenary,’” limited only by “moral obligations.”68 The Civil War
also demonstrated that U.S. sovereignty authorized imperial expansion, for the “blood which
deluged the battlefields” secured to the United States “all the power that belongs to the nation as
a nation,” including “the right to govern.”69 In fact, McKinley’s allies argued that British
colonialism rather than U.S. constitutionalism provided the appropriate model. In Nelson’s
63
Expansionists did tend to see acquired peoples as capable of slow improvement. 32 Cong. Rec.
327, 329-30; Cullinane, Liberty and Anti-Imperialism, 32. Notably, senators did not join
Langdell and Thayer in severing annexation from naturalization.
64
32 Cong. Rec. 565-66.
65
Id., 292, 832-33.
66
Id., 295.
67
Id., 833.
68
Id., 293 (quoting Mormon Church v. United States, 130 U.S. 1, 42, 44 (1890)) (omission
unmarked in original); see also id. at 295, 326.
69
Id., 287-88; Culliname, Liberty and Anti-Imperialism, 33-34; see also 32 Cong. Rec. 325.
17
words, the Philippines had been “bound hand and foot” in “shackles of Spanish tyranny,” much
like Egypt, a land of “sheer helpless barbarism” where British rule had brought “the liberties and
blessings of a good government.”70
White-supremacist Democrats were quick to point out tensions between Republicans’
prior support for Reconstruction and party members’ current enthusiasm for an openly racist
imperialism. McLaurin charged that Republicans were guilty of “a glaring inconsistency” in
advocating a colonial policy “embracing races so nearly akin to the negro, which differs so
radically from the policy” of “universal suffrage and the full enfranchisement of the negro”
enforced “in the South.”71 Platt and others, he crowed, “most amply vindicated the South” by
joining it “outside the spirit of the fourteenth and fifteenth amendments of the Constitution.”72
Republicans responded ambivalently. To varying degrees, they remained committed to
the Reconstruction Constitution, presumed that it remained binding authority, and sought to
evade or erode its constraints. A January 1899 cartoon from the popular magazine Puck captured
the competing tendencies. [Illustration 1] In it, schoolteacher Uncle Sam embodies the
McKinley Administration as he teaches self-government. The day’s lesson echoes Republican
senators’ colonial anglophilia: “The consent of the governed is a good thing in theory, but very
rare in fact. . . . By not waiting for their consent,” England “has greatly advanced the world’s
civilization.” Visual cues confirm that deprecated races may be denied the Reconstruction
Constitution. African-Americans, American Indians, ethnic Chinese, Filipinos, Hawai‘ians,
Puerto Ricans, and Cubans are all dark-skinned, stereotypic, racial caricatures. In a display of
70
Id., 834, 836; see also id., 327, 329.
Id., 639. Tillman amplified the point, noting that Republicans who were “now contending for a
different policy in Hawaii and the Philippines gave the slaves of the South not only selfgovernment, but forced on the white men of the South, at the point of the bayonet, the rule and
domination of those ex-slaves.” Id., 837.
72
Id., 639.
71
18
post-Reconstruction indifference, Uncle Sam makes no effort to teach the sole African-American
youth, who plays the happy slave washing the classroom windows. The only American Indian
pupil, who sits alone at the back of the room in exotic tribal garb as he reads an upside-down
book, remains unalterably outside and inferior to U.S. society notwithstanding federal
assimilation policies. A Chinese youth stands outside the schoolhouse door, held at bay by
legally validated Chinese Exclusion. For their part, the islanders loll on a remedial bench. An
unbridgeable visual divide separates them from the light-skinned antebellum U.S. states and
territories who earnestly study at desks in a realistic and sentimental style.
Or perhaps not.
A glance at the cartoon’s caption reveals Uncle Sam to anticipate a different trajectory for
the occupied islands than those traced by African Americans, American Indians, ethnic Chinese,
and British colonial subjects. In an indication that the new acquisitions might receive the
Reconstruction Constitution, Uncle Sam announces that because he will teach and islanders will
learn self-government, they will soon resemble the citizens of traditional U.S. territories. Alaska
confirms the possibility. Although a dark-skinned caricature, he sits in the “class ahead,” with
previous states and territories. The classroom motto makes democratic government rather than
racial inferiority the key to its discussion of consent: “The Confederate States refused their
consent to be governed; but the union was preserved without their consent.” Foraker made the
same point on the Senate Floor as he reminded his colleagues that it was Democrats in the South,
not Republicans in the Pacific, who had already enthusiastically violated the 15th Amendment.73
In fact, George Hoar of Massachusetts was all but alone among Senate Republicans when he cast
73
Id., 563-64, 567, 571.
19
legal arguments with roots in Reconstruction as fatal to the treaty.74
As the vote on ratification neared, Democrats, who feared undermining a President at
war, and Republicans, who feared dividing their party, reached a compromise.75 Just before the
vote, armed conflict broke out between Filipino independence fighters in Manila and U.S. forces
(even though they had earlier been united in opposing Spanish rule).76 Immediately following
this nudge to action, a majority of Senators united behind a plan to ratify without annexing.77
Democrat Augustus Bacon of Georgia proposed that the Senate treat the Philippines like Cuba
and disclaim any purpose to hold the archipelago permanently or naturalize its inhabitants.78
Foraker said there was no support for “permanently holding” the Philippines.79 In early February,
all but two voting Republicans and a sizeable minority of Democrats ratified the treaty, a
decision the Senate explicitly stated was “not intended to incorporate the inhabitants of the
Philippine Islands into citizenship of the United States, nor . . . to permanently annex said islands
74
Culliname, Liberty and Anti-Imperialism, 38.
Cullinane, Liberty and Anti-Imperialism, 42-43; “How the Vote Was Taken,” New York Times,
7 Feb. 1899, 1. Some senators also valued the commercial, security, and humanitarian benefits
and ratification E.g., Id., 327-29, 572, 960. Other Senators questioned such logics. E.g., Id., 43839, 529-30. For others, the particular local interests of their constituencies in opposition to
annexation outweighed any national benefits to be gained. As a Senator from the large sugargrowing state of Louisiana, Donelson McAffery perceived the sugar output of recent and
potential U.S. acquisitions to pose a threat to his constituents. E.g., Cullinane, Liberty and AntiImperialism, 37.
76
Cullinane, Liberty and American Anti-Imperialism, 45-49. It was also unclear that Senators on
either side could do more than delay approval. Republicans gains in recent elections meant
McKinley would face a more hospitable Senate in March. Senate Historical Office, Party
Division in the Senate, 1789-Present,
http://www.senate.gov/pagelayout/history/one_item_and_teasers/partydiv.htm (last visited 5
June 2014).
77
Love, Race over Empire, 194; U.S. Const., Art. 2, sec. 2, par. 2.
78
32 Cong. Rec. 561.
79
Id., 571. Massachusetts Republican Henry Cabot Lodge declared, “The treaty cedes the
Philippines to us. It is wisely and skillfully drawn. It commits us to no policy . . . .” Id., 959.
75
20
as an integral part of the territory of the United States.”80
Harvard Professor Abbott Lowell soon provided a constitutional justification for lands
“so acquired as not to form a part of the United States.”81 Uniform taxation, trial by jury, and
citizenship could be withheld in such places as inappropriate for those lacking U.S. citizens’
“social and political evolution.”82 Though others would soon argue that ample authority
supported Lowell’s proposal, Lowell himself conceded that the precedents were “meager.”83
Fleming v. Page (1850) held that temporarily occupied ports were “part of the United States”
vis-à-vis foreign nations, yet “foreign” for purposes of U.S. tariff laws.84 The Court did not
address whether permanently acquired lands and people could be governed outside the
Constitution.85 Jones v. United States (1890) involved a statute empowering the President to
declare uninhabited islands rich in the fertilizer guano as “appertaining to the United States” and
subject to rules for U.S. ships on the high seas.86 The law envisioned temporary U.S. jurisdiction
for the purpose of guano extraction.87 Barren, uninhabited, and presumptively unsuited to
settlement, the islands more closely resembled offshore drilling platforms than conquered
80
32 Cong. Rec. 1845-48; Love, Race over Empire, 187-88, 194-195; Culliname, Liberty and
Anti-Imperialism, 32; “How the Vote Was Taken.”
81
Abbott Lawrence Lowell, “The Status of Our New Possessions – A Third View,” Harvard
Law Review 13 (Nov. 1899): 176; Hugh Chisholm ed., 17 The Encyclopædia Britannica, 11th
ed. (New York: The Encyclopædia Britannica Co., 1911), 73. On undertheorized constitutional
decisions, see Cass R. Sunstein, “Incompletely Theorized Agreements in Constitutional Law,”
Social Research 74 (2007), 1-24.
82
Lowell, “Status,” 176, 166-69, 175.
83
Id., 173.
84
Id., 174; Fleming v. Page, 50 U.S. 603, 618 (1850).
85
Lowell, “Status,” 174.
86
11 Stat. 119-20, secs. 1, 6 (1856); Revised Statutes of the United States, Passed at the First
Session of the Forty-Third Congress, 1874-1874 (2d. ed.) (1878), 1080-81, title 72, secs. 5570,
4476 (1874); Christina Duffy Burnett, “The Edges of Empire and the Limits of Sovereignty:
American Guano Islands,” American Quarterly 57 (Sep. 2005): 779, 782; Lowell, “Status,” 17576.
87
11 Stat. 120, sec. 6 (1856); Revised Statutes . . . 1874-1874, 1081, title 72, sec 5578 (1874)
21
civilizations. Because the United States had “maintained their exclusive jurisdiction” over such
islands, Jones permitted federal prosecution of crimes committed there.88 U.S. citizens on the
islands, the Court soon added, held only the rights that would accompany them to “countries
having no civilized government.”89 The Court’s analogy to uncivilized countries rested on a
feature of the international law of 1890: uncivilized countries were no nations at all, merely the
high seas made solid.90 The most recent precedent, In re Ross (1891), held that constitutional
rights to a jury were inapplicable in U.S. consular courts located in Japan and subject to Japanese
consent.91 Lowell read the three cases together as demonstrating that U.S. legislative and military
power could sometimes reach farther beyond U.S. borders than individuals’ constitutional rights
and legislative obligations.92 But even on its own terms, Lowell’s argument about the case law
provided little insight into whether the Constitution stopped at or well before U.S. borders. This
was the central question, of course. Could borders be extended beyond the reach of the
Reconstruction Constitution?
By late 1899, jurists and lawmakers had identified a potential middle ground between
anti-imperialists’ and expansionists’ competing views. Under this intermediate approach, the
status of Guam, Puerto Rico, and the Philippines would depend on the legislation that Congress
next provided for them. Puerto Rico was slated to receive an organic act first. Federal attention
returned to the Caribbean.
88
137 U.S. 202, 224, 203-04 (1890).
Duncan v. Navassa Phosphate Co., 137 U.S. 647, 651 (1891)
90
Liliana Obregón, “The Civilized and the Uncivilized,” in Bardo Fassbender and Anne Peters
eds., The Oxford Handbook of the History of International Law (Oxford: Oxford University
Press, 2012), 917-19, 922-25.
91
In re Ross, 140 U.S. 453, 454 (1891).
92
Lowell, “Status,” 175.
89
22
Organic Law for a New Empire: The War Department and Democrats Shape the Debate
On August 1, 1899, McKinley made Elihu Root Secretary of War.93 The choice of the Wall
Street attorney (without any military experience) reflected the new priorities.94 Notwithstanding
his administration’s bloody suppression of Filipino pro-independence forces,95 McKinley
believed that constitutional challenges were a greater threat to empire. He was “not looking for
any one who knows anything about war,” Root recalled. Instead, he needed a lawyer.96 That was
so because the War Department had primary responsibility for Puerto Rico, whose organic
statute would be lawmakers’ next word on empire.97 Root sided decisively with Republican
expansionists. The choice put Democrats in a bind. If they pressed their constitutional case
without securing deannexation of the Philippines, Filipinos might receive the Reconstruction
Constitution, an unacceptable result. But acceding to the legal arguments of expansionists would
mean abandoning their own constitutional visions, an equally unthinkable outcome. In the
meantime, few rights for Puerto Ricans, few limits on U.S. governance in Puerto Rico, and little
93
Philip C. Jessup, Elihu Root vol. 1 (New York, Dodd, Mead & Company, 1938), 183, 189, .
Id.
95
Paul A. Kramer, The Blood of Government: Race, Empire, the United States and the
Philippines (Chapel Hill: University of North Carolina Press, 2006), 87-158.
96
Jessup, Elihu Root vol. 1, 215 (giving source of quotation as “Addresses on Government and
Citizenship, pp. 503-504”).
97
Tariffs on mainland-island trade were already generating test cases and administrative
inquiries. Although the challenges filed so far would fail for a variety of technical reasons, the
firm that would soon launch a challenge that would reach the Supreme Court was already
seeking legal guidance from the War Department. Coudert Brothers to Elihu Root, 19 Oct. 1899,
MD NARA 350/5A/1116; “Cuba a Foreign Land in Law,” New York Times, 9 Nov. 1899, 7;
Virginia Kays Veenswijk, Coudert Brothers: A Legacy in Law: The History of America’s First
International Law Firm 1853-1993 (New York: Truman Talley Books/Dutton, 1994), 135;
Bartholomew H. Sparrow, The Insular Cases and the Emergence of American Empire
(Lawrence: University of Kansas Press, 2006), 55. But compare “Outside of Tariff Laws,”
Washington Post, 15 Feb. 1900, 4, which describes an administrative decision deeming Puerto
Rico part of the United States.
94
23
overlap between U.S. and Puerto Rican constitutional status was the new order of the day.
Root was an incisive choice as lawyer for U.S. empire. He was among the most talented
and successful jurists in the country.98 An active and influential Republican, he promoted expert
administration as the balm for the disease of Tammany Hall Democrats and corrupt electoral
politics generally.99 Although of the Civil War Generation, he had not served, focusing instead
on private advancement. When he became President in 1898 of the prestigious Union League
Club of New York, he made no mention of the Reconstruction Constitution.100 He instead
announced that the “purpose and spirit” of the Club’s support for the Union was instead
embodied by “Anglo-Saxon pluck” in the service of rule of law, national reconciliation, and
clean government.101 Club members also overwhelmingly supported expansion.102
Once Secretary of War, Root wrenched the Department into conformity with his views.
Prior to Root’s arrival, War Department judges comprising the U.S. Provisional Court for Puerto
Rico had opened a two-year path to naturalization in Puerto Rico by accepting declarations of
intention to become U.S. citizens.103 But that required “residence in the United States,” which
98
Jessup, Elihu Root vol. 1, 183.
Elihu Root, “The Political Use of Money: Address of September 3, 1894,” in Robert Bacon
and James Brown Scott eds., Addresses on Government and Citizenship by Elihu Root
(Cambridge, Mass.: Harvard University Press, 1916), 141-44; Elihu Root, “The Civil Service:
Address of September 21, 1894,” in Bacon and Scott, Addresses on Government, 145-46; Jessup,
Elihu Root, vol. 1, 180, 190; 227-30.
100
The Union League Club of New York (New York: House, 1898), 87; “Elihu Root for
President,” New York Times, 30 Dec. 1897, 1.
101
Union League Club, 87.
102
“Speeches,” New York Times, 19 Jan. 1899, 6.
103
Guide to Puerto Rican Records in the National Archives New York City (Aug. 2013), 4,
http://www.archives.gov/nyc/finding-aids/puerto-rican-records-guide.pdf; Juramento de fidelidad
á los Estados-Unidos de América of Vicente Soto, 22 July 1899, AG/OG/CG/179/justicia,
ciudadanía, 19 octubre 1898-1899. The issue of competence turned at least in part on whether the
Provisional Court was “a district or supreme court of the Territories.” Revised Statutes . . . 18741874, 378, Title XXX, sec. 2165 (1874); “U.S. Provisional Court,” Boston Daily Globe, 18 June
1899, 18.
99
24
Root deemed unsatisfied by settlement on the island.104 After Root objected, Governor Davis
revised his public plans to prepare Puerto Ricans for “the high responsibilities and privileges of
American Citizenship” and “transition . . . to full statehood.”105 Root also ordered Davis to stop
requiring foreign voters to renounce foreign allegiances and declare their intentions to become
U.S. citizens (the same ritual that War Department officials had earlier required of
officeholders).106 The peninsular labor leader Santiago Iglesias took the oath while it remained
available and, according to a later-memorialized oral tradition, thereby “became an American
citizen.”107 But Root disagreed. On his view, the oath was more likely to make a foreigner “a
man without a country.”108
Like mainland Redeemers (and other reformers at the dawn of the Progressive Era), Root
104
Elihu Root to George Davis, 6 Feb. 1900, AG/OG/CG 179/expediente: justicia, ciudadanía,
marzo 1900, 7171.
105
Headquarters Department of Porto Rico, Circular No. 15, 17 June 1899, MD NARA
350/5A/81-12; Headquarters Department of Porto Rico, Circular (Corrected), 15 Aug. 1899, MD
NARA 350/5A/21/168:16; George Davis to Elihu Root, 28 Sep. 1899, MD NARA
350/5A/21/168:19; George Davis to Elihu Root, 28 Sep. 1899, MD NARA 350/5A/21/168:18.
On concern that were the President to acquiesce in Davis’s order, it could be perceived by
Democrats in Congress as executive overreaching and spark backlash, see Jessup, Elihu Root
vol. 1, 374-75.
106
General Orders, No. 160, 3-4.
107
Cordóva, Resident Commissioner, 101; Pagán, Memorial Addresses, 29, 32; Wrapper,
AG/OG/CG caja 179, expediente: justicia—renuncia—ciudadanía junio 1900, 10649; General
Orders, No. 160, 3-4; Juramento de fidelidad á los Estados Unidos de América of Manuel
Santiago Pantin, 10 Apr. 1900, AG/DE/76-16/1, Legajo numero 1: España, 1024. For evidence
that the oath is Iglesias’s, see Santiago Iglesias to Committee on P. I. and Porto Rico, 3 Jan.
1911, DC NARA, 46/Sen 62A-F17/Army Vetinary Bill to Citizenship Granting of to Porto Rico
(containing Iglesias’s signature); Fourteenth Census of the United States, 1920, Santurce, San
Juan, Puerto Rico, Roll T625_2071, page 20A, Enumeration District 27, Image 180,
Ancestry.com (reporting Iglesias’s use of “Manuel” as a first name); Pagán, Memorial
Addresses, 32; Iglesias de Pagán, el obrerismo, 112..
108
[George Davis] to Secretary of War, 12 Feb. 1900 (quote); John Hay to Secretary of War, 27
Jan. 1900, AG/OG/CG 179/justicia, ciudadanía, marzo 1900, 7171. In AG/OG/CG/179/justicia,
ciudadanía, marzo 1900, 7171; Root to Davis, 6 Feb. 1900; see also Clarence Edwards to Geo.
Davis, 7 Mar. 1900. See also Memorandum Card, 27 Feb. 1900, MD NARA 350/5A/311/1286:4;
John Hay to Secretary of War, 10 Apr. 1900, MD NARA 350/5A/180G/1286-5.
25
argued that broad political participation undermined good government.109 He and his
subordinates stressed islanders’ racial “inferiority” as they limited their suffrage and proposed to
extend them little home rule.110 Though the Republican Party still formally opposed southern
disfranchisement of former slaves and their descendants, Root called Reconstruction a failed
experiment.111 Davis described islanders as a species of “negro illiterates” or as members of a
“Latin race” unsuited for democracy because political parties in Latin America refused to
recognize the legitimacy of elections that they lost.112 Neither he nor Root added that the same
could be said of the Confederacy. Instead, Davis analogized Puerto Ricans to “New Mexicans,”
who lacked “capacity for State government” a half century after acquisition.113 The men
envisioned a mainlander-headed imperial household containing Puerto Rican dependents. One
109
Louis A. Pérez, Jr., Cuba Between Empires 1878-1902 (Pittsburgh, Pa.: University of
Pittsburgh Press, 1983), 307-312; Woodward, Strange Career, 54-56; Gilmore, Gender and Jim
Crow, 123; Michael Perman, Struggle for Mastery: Disfranchisement in the South, 1888-1908
(Chapel Hill: University of North Carolina Press, 2000); Henry to Adjutant General, 9 Dec.
1898.
110
General Orders, No. 160, 3-4.
111
Henry to Adjutant General, 9 Dec. 1898; Elihu Root, Address of the Honorable Elihu Root,
Secretary of War, Delivered at a Meeting of the Union League Club, Held on the 6th Day of
February, 1903, To Honor Its Fortieth Anniversary ([1903?]), 7-10; C. Vincent comp., The
Platform Text-Book (Omaha, Neb.: Vincent Publishing Co., 1900), 140, 162; see Silber,
Romance of Reunion, 137, 141, 156; Elihu Root, The Military and Colonial Policy of the United
States: Addresses and Reports (Cambridge, Mass.: Harvard University Press, 1916), 164; ; Davis
to Adjutant General, 20 Sep. 1899. On Root’s similar policy in Cuba, see Pérez, Cuba between
Empires, 311-12; Jessup, Elihu Root vol. 1, 288; Scott, Degrees of Freedom, 187. On Root
casting lawyers of southern and eastern European extraction as alien contagions to the bar, see
Elihu Root, Address, 15 Jan. 1916, New York State Bar Proceedings (1916), 474-81.
112
Geo. W. Davis, Report of the Military Governor of Porto Rico on Civil Affairs, in Annual
Reports of the War Department for the Fiscal Year Ended June 30, 1900 vol. 1, pt. 13, 117
(Washington, D.C.: GPO, 1902); S. Doc. No. 56-147, 49-65 (1900). Marilyn Lake and Henry
Reynolds, Drawing the Global Colour Line: White Men’s Countries and the International
Challenge of Racial Equality (Cambridge: Cambridge University Press, 2008), describe how a
broad swathe of English-speaking polities drew on common ideas about race and looked to each
other’s white-supremacist policies as they implemented their own discriminatory practices).
113
George Davis, Extract from Annual Repot of the Commanding General, Department of Porto
Rico, to the Adjutant General, Dated August 15, 1899, MD NARA 350/5A/168:20.
26
governor-general described “children” requiring political “kindergarten instruction.”114 Root
recommended a “course of tuition under a strong and guiding hand.”115 Root’s Senate ally,
Republican lawyer Chauncey Depew of New York rejected depictions of the island “as a bride . .
. worthy . . . of the . . . American.”116 The high proportion of Puerto Rican illiteracy and racial
intermixture meant that she was a Jezebel instead, he implied.117 Davis concluded that traditional
territorial government in Puerto Rico now would be “disastrous.”118 He recommended instead
adopting British practices in Mauritius, Barbados, Trinidad, and Jamaica.119
Happily, Root reflected, lawmakers faced “no legal limitations” in legislating Puerto
Rican status, rights, and tariffs.120 He and his Law Officer for the Division of Customs and
Insular Affairs, Charles Magoon, found support in diverse judicial precedents addressing atypical
U.S. spaces and disfavored, racialized U.S. communities.121 Only those concerning slavery and
Reconstruction gave them pause. In a memorandum provided to Congress, Magoon claimed that
the United States had “acquired” Puerto Rico and brought U.S. “jurisdiction” and “sovereignty”
there without “extending the territorial boundaries of the . . . United States.”122 In support, he and
114
Henry to Adjutant General, 15 Feb. 1899; Henry to Adjutant General, 9 Dec. 1898.
Five Years of the War Department: Following the War with Spain, 1899-1903, as Shown in
the Annual Reports of the Secretary of War (1904), 33-34.
116
33 Cong. Rec. 3619.
117
Id.; Deborah Gray White, Ar’n’t I a Woman? Female Slaves in the Plantation South (New
York: W.W. Norton & Co., 1999 [1985]), 27-61.
118
Davis, Extract.
119
Id.
120
Five Years of the War Department, 31-32, 40.
121
Charles E. Magoon, Report on the Legal Status of the Territory and Inhabitants of the Islands
acquired by the United States during the War with Spain, Considered with Reference to the
Territorial Boundaries, the Constitution, and Laws of the United States, S. Doc. 234, 56th Cong.,
1st sess. (Washington, D.C.: GPO, 1900), 1; Jessup, Elihu Root vol. 1, 226.
122
Magoon, Report on the Legal Status, 11-12, 23, 1; Charles E. Magoon, Reports on the Law of
Civil Government in Territory Subject to Military Occupation by the Military Forces of the
United States. Submitted to Hon. Elihu Root, Secreraty of War, by Charles E. Magoon, Law
Officer, Bureau of Insular Affairs, War Department. Published by Order of the Secretary of War.
115
27
Root cited cases featuring consular courts, ships on the high seas, occupied lands, the Guano
Islands, the District of Columbia, former and current territories, Mormons, slaves, Chinese,
immigrants, antebellum free people of color, and American Indians.123 To evade Dred Scott,
which they acknowledged cut against them, they declared it “overthrown” by the Civil War.124
Reconstruction could have provided them an additional “striking indication” of extensive federal
power, but Root opposed that policy, which remained a third rail in U.S. politics. Neither man
relied on it.125 Their bottom line was far-reaching. Except for the Thirteenth Amendment, the
Constitution did not apply.126 U.S. citizenship in particular was too precious to be spread among
all U.S. peoples. Because U.S. citizenship “carries with it great powers, rights, privileges, and
immunities,” Magoon wrote, the government could demand allegiance untethered from
naturalization127: “Many persons . . . from whom allegiance in some form is due . . . are not
citizens of the United States. Many soldiers . . . , temporary sojourners, Indians, Chinese,
convicted criminals, and, in another and limited sense, minors and women belong to this
class.”128 So too, Magoon argued, did Puerto Ricans.129
Here, Root and Magoon proposed a revolution in Fourteenth Amendment jus soli U.S.
3d ed. (Washington, D.C.: GPO, 1903), 20, 37-38.
123
Id. and [Root], Memorandum, 34-60 cited cases involving consular courts, ships on the high
seas, occupied lands, the Guano Islands, the District of Columbia, former and current territories,
Mormons, slaves, Chinese, immigrants, antebellum free people of color, and American Indians.
124
Magoon, Report on the Legal Status, 40, 39, 51-55, 60.
125
Rowe, United States and Porto Rico, 87. The omission was doubly notable given Davis’s
recent declaration that he had modeled governance of the island on “the military Government
which existed in the Southern States during the period of reconstruction following the Civil
War.” Davis, Extract. When Magoon had discussed Reconstruction in an earlier memo to Root,
he had limited his discussion to the powers exercised by the United States in the formerly
independent Texas. Magoon, Reports on the Law, 33-34.
126
Magoon, Report on the Legal Status, 25-26 (quoting U.S. Const., am. 13, sec. 1), 38.
127. Magoon, Report on the Legal Status, 119, 60-61,114-15.
128. Id., 118.
129. Id., especially 118, 120. Magoon cast allegiance as a substantive status, obligating the
United States, inter alia, to protect Puerto Ricans in their property and person. Id., 22-23.
28
citizenship. The founding-era rule that the Fourteenth Amendment formalized was that birth
within lands over which U.S. sovereignty extended brought U.S. citizenship.130 Instead,
Magoon now wrote, birth within lands brought by the United States within its sovereignty was
not necessarily “birth within territory . . . of the United States.”131 Lawmakers could withhold
jus soli citizenship from newly acquired lands. The ancient “right of the soil” was thus
something less.
The test of Root’s strategy began on January 3, 1900, when Senator Foraker introduced
legislation for Puerto Rico that tracked Secretary of War Elihu Root’s recommendations.132
Foraker’s bill included a presidentially appointed governor and upper legislative chamber, an
elected lower legislative chamber, and a nonvoting delegate in the House of Representatives.133
It did not create a territory.134 Like Root, Foraker backtracked on the post-Civil War Republican
commitment to expanding U.S. citizenship by granting it to “All persons born or naturalized in
the United States, and subject to the jurisdiction thereof.”135 Root declared Puerto Ricans not
ready for citizenship. Foraker sought to extend them the status stripped of any significant
“privileges” or “immunities.” Foraker and the Senate Committee on Pacific Islands and Porto
Rico insisted that the United States “have no subjects, and should not make aliens of our own.”
130
On contemporary recognition of this history, see Wong Kim Ark, 169 U.S. 649 (1898);
Frederick Van Dyne, Citizenship of the United States (Rochester, N.Y.: The Lawyers’ Cooperative Publishing Co., 1904), 7-12. The rule also required birth within the allegiance or
jurisdiction of the United States. Magoon did not suggest that Puerto Ricans failed to meet that
requirement. Magoon, Report on the Legal Status, 119
131
Magoon, Report on the Legal Status, 119.
132
33 Cong. Rec. 630; Richard W. Leopold, Elihu Root and the Conservative Tradition (Boston:
Little, Brown & Co., 1954), 27-28.
133
“Plan to Rule Puerto Rico,” New York Times, 4 Jan. 1900, 11; Root, Military and Colonial
Policy, 165-68.
134
“Plan to Rule Puerto Rico.”
135
U.S. Const., Am. 14, sec. 1. Democrats were quick to point out the tension in Republicans’
positions. See, e.g., Love, Race over Empire, 190-91.
29
He could say this because he believed that U.S. citizenship would bring islanders no “rights that
the American people do not want them to have.”136 It would entitle them to the governmental
protection that women received, but not to political participation.137 Finally, Foraker’s bill
supported free trade for Puerto Rico, a policy that Root and President McKinley promoted as
just, albeit not legally required.138 As Root explained in his annual report, the loss of Spanish
markets left Puerto Rico stranded in a competitive world. The alternatives, Root wrote, were
free trade or to let “the people starve.”139
Foraker’s bill created a quandary for anti-expansionist Democrats. Should they publicize
the imperial evils they saw in it or seek to mitigate them. If they attacked Republicans for
denying islanders constitutional protections, Republicans might give ground and provide Puerto
Ricans greater rights.140 That, in turn, could provoke the Supreme Court to find that Puerto Rico
was a traditional territory.141 Because many saw Puerto Rico as a harbinger for the Philippines,
such a holding would force a choice between hazarding the possibility of the full U.S. integration
of Filipinos that anti-imperialist Democrats feared and extending Filipinos the independence that
Democrats favored. Democrats’ alternative was to criticize Republicans for integrating Puerto
S. Rep. No. 249, 56th Cong., 1st sess., (1900), 12, 1; José A. Cabranes, “Citizenship and the
American Empire: Notes on the Legislative History of the United States Citizenship of Puerto
Ricans,” University of Pennsylvania Law Review 127 (1978), 428 (quoting 33 Cong. Rec. 2473
(1900)); Magoon, Report on the Legal Status, 60-61, 114-15, 118-20; “Plan to Rule Puerto
Rico.” A long-time proponent of African-American voting rights and racial justice more broadly,
Foraker well knew how inconsequential U.S. citizenship could at times appear. Perman,
Struggle, 262-63
137
S. Rep. No. 249, 12.
138
Id.; Five Years of the War Department, 40; Jessup, Elihu Root vol. 1, 375.
139
Jessup, Elihu Root vol. 1, 373 (quoting Elihu Root to William McKinley, 18 Aug. 1899); see
also Geo. Davis to Elihu Root, 14 Feb. 1900, MD NARA 350/8/C182-43; Five Years of the War
Department, 22-23.
140
As we will see, when Democrats took the opposite tack, they produced the opposite reaction.
141
Four justices so found as to Hawai‘i in 1901. See Downes v. Bidwell, 182 U.S. 244, 305
(1901) (White, J., concurring in judgment); id., 344-45 (Gray, J., concurring in the judgment).
136
30
Ricans too fully into the U.S. polity. If Republicans responded by amending the bill to hold
Puerto Ricans at greater remove, that distance could raise the odds that the Supreme Court would
characterize Puerto Rico as something other than a traditional territory. If so, the Philippines
would be able to be retained without much chance that the Court would demand that they be
fully integrated into the United States.142 Anti-imperialists thus faced a classic tradeoff between
risk and returns. The conservative approach had the added benefit of letting Democrats oppose
rights for people they deemed less than wholly white. Risk aversion and racism soon proved
compelling motivations.
Anti-imperialist Democrats attacked Foraker’s bill in ways that focused debate on
preserving congressional discretion over Puerto Rico, which all understood to be a harbinger for
the Philippines. Republicans responded sympathetically. They transformed the bill into the basis
for a promising test case by placing Puerto Rico at a greater conceptual remove.143 As one
Republican Senator explained, “[our] best constitutional lawyers in the Senate admit that . . . it
would not be safe” to “legislate for the Philippines as territory not a part of the United States”
before hearing from the Supreme Court.144 Otherwise, the Court might decide to extend Filipinos
As we will see, each of these results did follow Democrats’ decision to take this path.
See “Free Trade Abandoned.” For praise of the Foraker bill for inviting judicial review, see
33 Cong. Rec. 1946, discussed in Krishanti Vignarajah, “The Political Roots of Judicial
Legitimacy: Explaining the Enduring Validity of the Insular Cases,” University of Chicago Law
Review 77 (2010), 822 and n.177. J.B. Foraker anticipated that a test case on the U.S. citizenship
of Puerto Ricans would also settle the U.S. citizenship status of “the Tagalos, the Sulus, the
Igorrotes, the Negritos, and all the other numerous tribes and peoples of the archipelago” of the
Philippines. “Porto Rico: It Belongs to the United States, but Is Not the United States, nor a Part
of the United States,” in A Testimonial to the Public Services of Hon. Joseph B. Foraker
([1901?]), 63-64.
144
“Free Trade Abandoned: Senators’ Views Changed,” New York Tribune, 27 Jan. 1900, 1; see
also Rowe, United States and Porto Rico, 129; 35 Cong. Rec. 2042.
142
143
31
U.S. citizenship and other constitutional protections.145 Anti-imperialist Democrats pointed the
way by insisting that extending Puerto Ricans free trade and U.S. citizenship would signal to the
Supreme Court that Congress was content to have the justices recognize Puerto Rico as a part of
the United States where the Constitution applied in full.146 The tariff was an attractive test issue
for Republicans because it elided what Root called the vexing and divisive question of islanders’
“moral right to . . . the underlying principles of justice and freedom . . . in our Constitution.”147 It
could also reach the Court before challenges from more sympathetic plaintiffs. The speed
mattered. The New York Tribune had just attempted a citizenship test suit by hiring a Puerto
Rican employee despite the federal statutory prohibition on “alien” contract labor.148 The
Secretary of Treasury mooted that challenge by admitting the employee as an “isolated case.”149
Foraker, Porto Rico, 63-64; “Free Trade Abandoned”; Rowe, United States and Porto Rico,
129-30.
146
Rowe, United States and Porto Rico, 90, 129-30; 33 Cong. Rec. 3690; S. Rep. No. 249, 56th
Cong., 1st sess., (1900), 13; Civil Government for Porto Rico (House), 33; Civil Government for
Porto Rico (Senate), 18-19. Anti-imperialist Democrats also claimed that Puerto Rico free trade
presaged Republican extension of free trade to the Philippines. S. Rep. No. 249, 56th Cong., 1st
sess., (1900), 17; 33 Cong. Rec. 2008. Republican Charles Grosvenor of Ohio, who was a Civil
War veteran and a lawyer, noted on the floor of the House that Democrats were also planning to
argue on the campaign trail that citizenship for Puerto Ricans presaged plans to naturalize ten
million Filipinos and extend them all the rights of citizenship. 33 Cong. Rec. 2080. Powerful
sugar interests also weighed in on the tariff question, which despite the relatively small output of
Puerto Rico, could have large implications were it a harbinger of policy in the Philippines. S.
Rep. No. 249, 56th Cong., 1st sess., (1900), 7-8. The impact of such efforts was blunted, however,
by the conflicting interests of sugar growers and processors, the opportunities mainlanders with
capital saw in Puerto Rican sugar, and the emergence of antitrust sentiment and tariff policies as
partisan U.S. political issues. Ayala, American Sugar Kingdom, 48-73, 108-109; Frank R. Rutter,
“The Sugar Question in the United States,” Quarterly Journal of Economics 17 (Nov. 1902),
especially 65-71; “Democratic Platform for 1900,” The Second Battle or The New Declaration of
Independence 1776-1900 (Chicago: W. B. Conkey Co., 1900), 42.
147
Five Years of the War Department; Foraker Act, 31 Stat. 77, Pub. L. 56-191, sec. 4 (1900).
148
Jorge Cruz, Senate Doc. No. 281, 56th Cong., 1st sess. (1900), 2; “Jorge Cruz, the Excluded
Porto Rican,” The Great Round World, 19 Apr. 1900, 75-77; Alfred S. Johnson ed., The
Cyclopedic Review of Current History, vol. 10 (Boston, Mass.: Current History Co., 1901), 352;
“The Week,” The Nation, 12 Apr. 1900, 272.
149
Jorge Cruz, No. 281, 2.
145
32
But the migrant’s and the Department of Justice’s planned lawsuits in response signaled that the
reprieve would be brief.150 Expansionist Republicans thus opted to propose a temporary tariff set
at 15 percent of prevailing rates and remove from the bill recognition of Puerto Ricans as U.S.
citizens.151 Foraker also replaced the island delegate in his bill with a Puerto Rican resident
commissioner who would register with the U.S. Secretary of State like a foreign dignitary.152
But even Foraker’s revised bill did not satisfy anti-imperialist Democrats. It reduced the
likelihood of eventual statehood for the Philippines, but only by facilitating what Democrats saw
as a dangerous expansion of federal power. On their view, the original Republican sin was to
sacrifice Puerto Rico rather than acknowledge that the racially degraded Philippines should not
be retained. Democratic Senator and Confederate veteran from Tennessee William Bate equated
annexation of the Philippines with folly through an incendiary description of “Negrito” Filipinos
as “physically weaklings of low stature, with black skin, closely curling hair, flat noses, thick
lips, and large, clumsy feet.”153 Such people, he asserted, “would prove a serpent in our
150
Jorge Cruz, Senate Doc. No. 311, 56th Cong., 1st sess. (1900).
S. Rep. No. 249, 56th Cong., 1st sess., (1900), 7-8; “Tariff for Puerto Rico,” New York Daily
Tribune, 1 Feb. 1900, available at CIHCAM 18/L1, 29; Foraker Act, 31 Stat. 77, Pub. L. 56-191,
sec. 3 (1900); Cabranes, “Citizenship,” 432-33; Civil Government for Porto Rico: Hearings
before the Committee on Pacific Islands and Porto Rico United States Senate, 63d Cong., 2d
sess., on S. 4604 a Bill to Provide a Civil Government for Porto Rico, and for Other Purposes
(Washington, D.C.: GPO, 1914), 18-19; Civil Government for Porto Rico: Hearings Before the
Committee on Insular Affairs, House of Representatives, 63d Cong., 2d sess., on H. R. 13818, A
Bill to Provide a Civil Government for Porto Rico, and for Other Purposes (Washington, D.C.:
GPO, 1914), 32. The tariff deprived Democrats of that potential campaign issue. 33 Cong. Rec.
2008.
152
33 Cong. Rec. 2659, 3632; Foraker Act, 31 Stat. 77, 86, sec. 39 (1900); John W. Foster, The
Practice of Diplomacy (Boston: 1906), 63; “Changes,” Courier-Journal (Louisville), 26 Mar.
1900, 2. I acknowledge research insights from Joan Sherer and Evan Duncan.
153
Cabranes, “Citizenship,” 431-32 (quoting 33 Cong. Rec. 3613, 3616 (1900)); cf. Mae M.
Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton, N.J.:
Princeton University Press, 2004), 96-126 (describing racialization of Filipinos); Mae M. Ngai,
“The Architecture of Race in American Immigration Law: A Reexamination of the Immigration
Act of 1924,” Journal of American History 86 (Feb. 2001), 70 (same). Bate was also a lawyer.
151
33
bosom.”154 Democratic Representative William Jones of Virginia also favored release of the
Philippines. He argued that doing so would free the United States to give Puerto Ricans “a
Territorial form of government, such as is enjoyed by every other American territory.”155
Presumably aware that the most recent U.S. census categorized 62 percent of islanders as
“white,” 32 percent as “mulattoes,” and just 6 percent as “of pure negro blood,” Jones
proclaimed Puerto Ricans to be largely “Caucasian” and proposed treating them as U.S.
citizens.156 The contrary Republican policy rivaled the worst abuses of centralized power known
to U.S. history. It was Dred Scott all over again. So much so, that Jones used Justice Taney’s
description of free antebellum African Americans as “conquered subjects” with “no rights
which” the United States is “bound to respect” to describe Republicans’ treatment of Puerto
Ricans.157 It was Reconstruction too. Because the Foraker Act would bring undemocratic
Republican dominance and corruption, “no such dangerous and absolute power,” “was ever
before lodged in an irresponsible carpetbag government,” Jones charged.158 And it caused the
U.S. Revolution. It was as though the “person who drew this bill . . . had before him the
infamous stamp act . . . as a prototype,” Democratic Representative Claude Swanson of Virginia
Cabranes, “Citizenship,” 431-32 (quoting 33 Cong. Rec. 3613, 3616 (1900)); 33 Cong. Rec.
app. 234 (describing Jones’s opposition to retaining the Philippines).
155
33 Cong. Rec. app. 232.
156
Office Director Census of Puerto Rico, War Department, Report on the Census of Porto Rico,
1899 (Washington, D.C.: GPO, 1900), 57-58.; 33 Cong. Rec. app. 234. Democratic Senator
Francis Newlands of Nevada said of Puerto Rico, “its people can easily be absorbed.” Id., 1994);
Democratic Senator Alexander Clay of Georgia described Puerto Rico as “populated by our own
blood and kindred,” a “Caucasian population.” id., 3682.
157
Id., app. 232; see also id., 1950,
158
Id., app. 234, 232-233, 235; id., 3613. Democratic Senator Claude Swanson of Virginia
claimed that under the pending bill Puerto Ricans “are made not citizens of a republic but
creatures of a Congressional despotism.” Id., 2009. Democratic Representative James Hay of
Virginia remarked that “passage of this bill means the beginning of the reign of the
carepetbagger and the scalawag in Porto Rico.” Id., 4068
154
34
intoned.159
From today’s vantage, the most surprising aspect of white-supremacist Democrats’
outrage may be their repeated insistence that Puerto Ricans were white like them. That sense of
anomaly is instructive, a gentle reminder that the place of Puerto Ricans in U.S. racial hierarchies
both drove and emerged from the events recounted here.160 Consider the parallel case of Hawai‘i.
The U.S census described Hawai‘ians as majority “colored.”161 Yet, it received organic
legislation far more generous than that envisioned for Puerto Rico.162 Advocates painted
Hawai’ians as akin to U.S. whites. They pointed to Hawai‘ians’ U.S.-style legal system, high
literacy rate, mainland-compatible standards and technologies, adoption of the dollar, and
domination by U.S. businessmen.163 Because the War Department did not administer Hawai’i, it
was not in a position to cast islanders in darker terms. And few equated Hawai’ian legislation
with Philippines destiny. In April 1900, Hawai‘i received traditional territorial governance. Key
Puerto Rican leaders would later try to repeat the accomplishment, albeit without being able to
point to mainlander domination of island electoral politics. But by the time the juridical link
between Puerto Rico and the Philippines loosened and War Department governance of Puerto
Rico ended, U.S.–Puerto Rican relations and U.S. views of Puerto Rican racial character were
settling into grooves that ran in other directions.
Conclusion
159
Id., 2009, 2199.
On anomaly and history, see Philip J. Deloria, Indians in Unexpected Places (Lawrence:
University of Kansas Press, 2004), 3-10.
161
Census Reports Volume I: Twelfth Census of the United States, Taken in the Year 1900
(1901), cxiv.
162
Thompson, “Comparison,” 541-47; Hawaiian Organic Act, Pub. L. 56-332, 31 Stat. 141 (30
Apr. 1900).
163
Thompson, “Comparison,” 543-45; Love, Race over Empire, xvii, 101-02, 106.
160
35
On April 14, Congress passed and the President signed Foraker’s bill. Soon, the test cases that
U.S. lawmakers had envisioned began to take shape.164 The Coudert Brothers law firm
represented two commercial clients in well-framed cases. In one, D. A. de Lima and Company
challenged the high pre-Foraker Act tariffs on goods shipped from Puerto Rico levied by George
Bidwell, the collector of customs at the port of New York.165 The other featured Samuel Downes,
challenging the much lower tariffs that Bidwell had later levied pursuant to the Foraker Act. 166
Federal Circuit Court judges would soon decide both.167
By late 1900, De Lima’s and Downes’s cases were pending before the U.S. Supreme
Court.168 Here, the justices confronted a landscape carefully shaped by War Department
administrators and lawmakers. These nonjudicial officials had crafted a legal blueprint for an
imperial alternative to the Reconstruction Constitution. Under it, acquired lands and their people
could be treated as domestic for some purposes and as foreign for others. Officials had also
secured a relatively unsympathetic challenger as their opponent. Though the case was one the
government could afford to lose, U.S. officials warned the justices that insisting too strongly on
the post-Civil War settlement could doom the electorally vindicated, already-underway U.S.
imperial experiment.
The decisions that followed vindicated the constitutional strategies that lawmakers and
administrators had pursued. Contemporaries deemed the results momentous and controversial.
One lawyer who argued many of the cases concerning the rights and status of the new
164
Foraker Act, 31 Stat. 77 (1900).
Sparrow, The Insular Cases, 55.
166
Id.
167
Downes v. Bidwell, 182 U.S. 244, 287 (1901); DeLima v. Bidwell, 182 U.S. 1, 2 (1901).
168
Transcript of Record 7, No. 507, Downes v. Bidwell, 182 U.S. 244 (11 Dec. 1900); Transcript
of Record 9, No. 456, DeLima v. Bidwell, 182 U.S. 1 (23 Oct. 1900).
165
36
acquisitions doubted “if since the Dred Scott case there had been such a strong fe[e]ling among
the justices regarding any doctrine of constitutional law.”169 The most important of the cases
proved to be Downes v. Bidwell (1901), which produced four separate writings, no majority
opinion, and a bare five votes in support of the judgment.170 While the meaning and legacy of
that fractured response to empire is a story unto itself, it suffices to say that the Court declined to
vindicate the Reconstruction Constitution, reject the Imperial Constitution, or doom the imperial
experiment.171 On each metric, administrators and lawmakers eked out the minimum result they
needed to be able to declare victory. The Constitution would never be the same.
Frederic R. Coudert, “The Evolution of the Doctrine of Territorial Incorporation,” 60 AM. L.
REV. 801, 840 (1926).
170
Downes, 182 U.S. 244 (1901).
171
E.g., Erman, “Citizens of Empire.”
169
37