Original Understandings of the U.S. Territories
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.
Cite as Gregory Ablavsky, Original Understandings of the U.S. Territories, 18 N.Y.U. J.L. & Liberty 499 (2026)