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10/06/2021

Gary Lawson & Guy Seidman: Are People in Federal Territories Part of “We the People of the United States”?
Michael Ramsey

Gary Lawson (Boston University School of Law) and Guy I. Seidman (Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law) have posted Are People in Federal Territories Part of “We the People of the United States”? (9 Texas A & M L. Rev. __ (forthcoming 2022) (48 pages) on SSRN.  Here is the abstract:

In 1820, a unanimous Supreme Court proclaimed: “The United States is the name given to our great republic, which is composed of states and territories.” While that key point is simple, and perhaps even obvious, the constitutional implications of such a construction of “the United States” as including federal territories are potentially far reaching. In particular, the Constitution’s Preamble announces that the Constitution is authored by “We the People of the United States” and that the document is designed to “secure the Blessings of Liberty” to the author and its “Posterity.” If inhabitants of federal territory are among “We the People of the United States,” then federal actors owe them (and their “Posterity”) the same fiduciary duties owed to people in the States. There is no definitive answer as a matter of original meaning as to the scope of “We the People of the United States,” but the presumptive meaning of “the United States” in 1788 included federal territory, so the presumptive meaning of “the People of the United States” would similarly include people in federal territory. While there are strong textual and contextual arguments for excluding territorial inhabitants from “We the People,” there are also countervailing textual and contextual arguments for their inclusion. In the end, the answer may depend on something beyond the reach of interpretative theory: How strong is the presumption in favor of inclusion that can be drawn from pre-1788 understandings and practices? If territorial inhabitants are indeed among “We the People of the United States,” then federal action towards the territories must conform to fiduciary norms, including the key norm of impartiality with respect to multiple beneficiaries, which would require very strong reasons for disfavoring territorial inhabitants in comparison to state inhabitants.

I agree that people in the territories are part of "We the People of the United States" but I'm not yet persuaded that that conclusion has the implications the authors think it does.