Eric Posner Reviews New Book on the Evolution of Territoriality in American Law

The Limits of Limits
Eric A. Posner
The New Republic
May 5, 2010

Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law

By Kal Raustiala

(Oxford University Press, 328 pp., $29.95)

In 1898, American and Spanish officials signed the Treaty of Paris, which ended the Spanish-American War. Spain ceded Cuba, the Philippines, Puerto Rico, and other colonial possessions to the United States. The Spanish-American War had been fought in the name of Cuban freedom, and sentiment in the United States favored Cuban independence. But for most Americans, the other Spanish colonies seemed like the just fruits of conquest after a glorious war. The United States, already an economic colossus on the world stage, would take its rightful position as a great power on par with Britain, France, and Russia, with colonies to prove it.

Yet the United States was different from those countries. It had a written constitution that provided for limited government and a substantial tradition of democracy. The Constitution, as understood at the time, envisioned only two types of American territory: the states themselves, and the contiguous territories on the North American landmass that the United States controlled or was likely to acquire in the future. In 1898, it had been long established that people living in those territories have constitutional rights, and that the territories eventually become states.