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

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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

caste across the U.S. South through Jim Crow and state-constitutional disfranchisement.5 Still

1 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).5 See, e.g., Wang Xi, The Trial of Democracy: Black Suffrage and Northern Republicans, 1860-1910 (Athens: University of Georgia Press, 1997), 216-66; C. Vann Woodward, Origins of the

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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

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

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, 1865-1900 (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): 427-448.7 Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction (Cambridge: Cambridge University Press, 2011), 7, 10, 182-186; Elliott, Color-Blind Justice, 248; Rebecca J.

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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

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

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, 71-72.10 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.

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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 self-

government and of the “Latin race” as lacking the capacity for democratic politics. English

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.

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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

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

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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

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

11 Nofi, The Spanish-American War, 252-56; Delgado Pasapera, Puerto Rico, 591-92; Oliver, 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.

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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

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

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 1898-1899, 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, 167.19 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,

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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

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

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/naturalization-oath-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?]), 89.25 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)).

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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

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

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)).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.

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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

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.

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 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.

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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

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 Anti-

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 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

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Imperialist 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

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

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, 6.42 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.

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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

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

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 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.

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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 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

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, 433.56 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.

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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

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 self-

government 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

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): 273-9660 Langdell, “Status,” 376.61 Langdell, “Status,” 365, 376.62 Langdell, “Status,” 377.63 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.

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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

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

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. 325.70 Id., 834, 836; see also id., 327, 329.71 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 self-government, 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.

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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

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

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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

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

73 Id., 563-64, 567, 571.74 Culliname, Liberty and Anti-Imperialism, 38.75 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., 438-39, 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 sugar-growing 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 Anti-Imperialism, 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.

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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

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

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., 959.80 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.

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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

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

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,” 175-76.87 11 Stat. 120, sec. 6 (1856); Revised Statutes . . . 1874-1874, 1081, title 72, sec 5578 (1874)88 137 U.S. 202, 224, 203-04 (1890).89 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.

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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.

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

93 Philip C. Jessup, Elihu Root vol. 1 (New York, Dodd, Mead & Company, 1938), 183, 189, .94 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.

22

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

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, 183.99 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,

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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

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 . . . 1874-1874, 378, Title XXX, sec. 2165 (1874); “U.S. Provisional Court,” Boston Daily Globe, 18 June 1899, 18.104 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.

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Like mainland Redeemers (and other reformers at the dawn of the Progressive Era), Root

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

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/1286-5.109 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.

25

envisioned a mainlander-headed imperial household containing Puerto Rican dependents. One

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. 1898.115 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.

26

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.

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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.”

He could say this because he believed that U.S. citizenship would bring islanders no “rights that

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’ Co-operative 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, 119131 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.

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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

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

136 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, 262-63137 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).

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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

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

142 As we will see, each of these results did follow Democrats’ decision to take this path.143 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. 2042.145 Foraker, Porto Rico, 63-64; “Free Trade Abandoned”; Rowe, United States and Porto Rico, 129-30.

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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

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

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, 2.150 Jorge Cruz, Senate Doc. No. 311, 56th Cong., 1st sess. (1900).151 S. Rep. No. 249, 56th Cong., 1st sess., (1900), 7-8; “Tariff for Puerto Rico,” New York Daily

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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

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

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.154 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.

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“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

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.

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., 4068159 Id., 2009, 2199.160 On anomaly and history, see Philip J. Deloria, Indians in Unexpected Places (Lawrence: University of Kansas Press, 2004), 3-10.

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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

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,

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. 164 Foraker Act, 31 Stat. 77 (1900).165 Sparrow, The Insular Cases, 55.

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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

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

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).169 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).

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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.

171 E.g., Erman, “Citizens of Empire.”

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