Gregory Ablavsky (Stanford Law School) has posted Original Understandings of the U.S. Territories (18 N.Y.U. J.L. & Liberty 499 (2026)) (27 pages) on SSRN. Here is the abstract:
Recently, judges and scholars alike have given renewed attention to the constitutional and legal status of the U.S. territories, including Founding-era understandings of territorial status. This essay seeks to reconstruct early American debates on this question by making two interventions. First, in place of the topics that have most interested present-day commentators-the application of the Constitution or federal power to acquire territory-I focus on the most significant and durable constitutional disagreement of the era: did the territories enjoy rights to self-government outside federal authority? In other words, in nineteenth-century terms, were the territories “sovereign”? Second, it traces a persistent divide between Federalist and Republican (later Whig/Democratic) views on this question that was never fully settled. In its recent decisions confronting territorial status, however, the Court has vacillated between these two inconsistent positions, offering conflicting responses that I read as an effort to pick out whichever answer avoids grappling with thorny jurisprudential problems. Originalists have similarly invoked them offhandedly to blunt the challenge that territorial practice presents to formalist visions of the separation of powers. In my view, to settle these hard questions today, we will likely have to decide the legal, rather than historical, question of which of these historical understandings we think was correct.
I think the answer to the question posed — “did the territories enjoy rights to self-government outside federal authority?” — is undoubtedly no, as a matter of the Constitution’s text. Article IV gives Congress power to regulate territories, and while (in my view) that power is subject to constitutional limitations, the Constitution doesn’t provide any guarantee of self-government in the territories. To the contrary, the guarantee clause (also in Article IV) — which does provide a guarantee of self-government — applies only to the states. (For further discussion on this and related points, see Part II of The Originalist Case Against the Insular Cases.)
This is not to say that the matter was undisputed in the post-ratification period. Professor Ablavsky’s insightful article shows how it was disputed. But that doesn’t make it a hard question for textualist originalists. That just indicates that post-ratification commentary isn’t a sure guide to textual meaning, and often got carried far beyond it.
RELATED: In the same issue of the NYU Journal of Law & Liberty, Richard A. Epstein, The Constitutional Status of Laws in the Territories: Where Justice Gorsuch Got It Wrong on the Insular Cases (18 N.Y.U. J.L. & Liberty 564 (2026)).
Posted at 6:11 AM