Colonial Geographies: Reconstruction of Empire in the Northwest Territory and the Insular Cases
Colonization is embedded in the legal, cultural, and political fabric of the United States of America. As the successor-in-interest to the Great British empire of the thirteen colonies, the new republic wanted a break with the past and it drafted a Constitution to share the aims and values of infant republic. That Constitution was a triumphant declaration of the rights of leaders only to rule with the consent of the governed. The political triumph of the Constitution marked the new state as fundamentally different from the former imperial master. Unfortunately, the Constitution also marked the new state as complicit with the old. The Constitution incorporated principles from another seminal founding-era document: the Northwest Ordinance. Colonization was built into the Northwest Ordinance and that colonization was incorporated into the Constitution as the Territorial and Property Clauses found in Article IV, §3, Clauses 2 & 3, respectively.
This complicity resulted in the development of a colonial relationship between the United States and its territories, beginning with the Northwest Territory as a settler colony. Based on a compact with the former owners who owned the Northwest Territory, Congress granted equal statehood. No such compact exists with the current five colonies acquired from European powers post-1898 and so the colonial relationship continues. This paper argues two things: one, that there is no constitutional right for a territory to become a state; and two, despite the absence of a compact similar to that with the Northwest Territory, current colonies may be incorporated into the United States such that all constitutional provisions apply to them, in the territories, and without the Insular Cases being overruled.
Cite as Dolace McClean, Colonial Geographies: Reconstruction of Empire in the Northwest Territory and the Insular Cases, 18 J.L. & Liberty 588 (2026)