Michael Ramsey questions whether any enumerated power authorized Congress to initially acquire Hawaii given that Congress annexed it by a joint resolution rather than treaty or conquest, did not initially intend to grant statehood, and did not need the entire territory for military purposes. This post notes some historical approaches that justify territorial acquisitions ab initio in similar circumstances despite those objections.
When the First Congress sought to acquire territories owned by states, one of its justifications was to “establish[] the harmony of the United States” (as recited in a 1790 deed). The United States claimed title to Oregon by right of Lewis and Clark’s discovery and John Jacob Astor’s establishment of private fur trading posts there, without intending to grant statehood (see here at 422–23). In 1825 Senator Burton urged Congress to continue to assert its claim to Oregon to prevent monarchical Britain from expanding its North American presence there. Inherent sovereign powers justify those approaches to acquiring territories.
Other approaches suggest enumerated powers that might apply. One is the commerce clause. Congress’s ostensible reason for funding Lewis and Clark’s expedition was to “extend[] the external commerce of the United States”—although President Jefferson’s secretly expressed goal was to map favorable agricultural areas in Native American lands and encourage Native Americans to settle in agricultural communities and sell their forests to the United States. One might argue that the acquisition of Oregon by discovery was incidental to the congressional statute rather than grounded in an inherent sovereign power. America’s reliance on Astor’s private fur trading posts to support its title would cut against that argument, however.
A second potential enumerated power is to provide for an army and navy, as Professor Ramsey suggests but rejects. Senator Benton supported asserting title to Oregon in its entirety for use in a number of alternative ways other than statehood, including as “a military post and naval station.” A third is the public debt clause. One of the First Congress’s justifications for acquiring territories from states was to be able to “do[] ample justice to the public creditors.” Any territory can be used to generate revenue to service the public debt. Reliance on an enumerated power might not, however, justify the specific annexation of Hawaii by joint resolution rather than statute or treaty (although the resolution may have been a treaty by another name, as Andrew Hyman suggests).
In closing, Professor Ramsey asserts that the Tenth Amendment gives any inherent powers from international law to “the sovereign people” rather than the federal government. But early practice contradicts that assertion. The First Congress, not the people generally, sought to acquire territories from the original states. And Oregon belonged to the United States, not to the American people generally nor to the states from which Lewis, Clark, or Astor hailed. The Constitution created a sovereign nation with all the powers that international law grants a sovereign. The people ceded those powers to the federal government by ratifying the Constitution and creating the United States. The states ceased to be sovereigns in the international sphere, and the Constitution does not recognize any concept of national action by “the sovereign people.” Denying the United States inherent sovereign rights under international law, like territorial acquisition by discovery, would deny our nation those rights entirely, which would be an unreasonable reading of the Constitution.
Posted at 6:50 AM