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The Imperial Treaty Power

Modern debates over the scope of federal treaty-making power are framed by histories written at the turn of the last century. Some of these histories gave a legal imprimatur to the acquisition of the insular possessions and the exercise of colonial government over them. In so doing, the authors claimed that the American treaty-making power obviously contained the law-of-nations power to acquire territory and take an imperial sovereign’s title to it.  Drawing on these histories, current disputes about the treaty-making power take a “dual-sovereignty” lens, where the central question is how to allocate treaty-making power between states and the federal government.

This Article contends that the canonical accounts of the treaty-making power erased a vibrant, contrary view of foreign-affairs federalism. This alternative theory argued that Tenth Amendment reserved sovereign powers to the people—the popular sovereign—that prohibited both the state and federal governments from exercising an “eminent dominion” over territory. This view rejected the dual-sovereignty perspective, instead arguing that neither the state nor federal government could acquire territory, cede territory, or hold original title to territory so acquired.

The Article traces this erased idea through bureaucratic archives, state and federal court decisions, and writing by elite legal scholars. In light of the contingency of this history, courts can be misguided when they rely on historically inflected arguments to describe the treaty-making power and the status of American territory that is not yet a state.  Our canonical histories are often motivated glosses that shored up the imperialism of their era, and do not offer easy solutions to hard modern cases.