The History of the Constitution is Our Future.

Maggie Blackhawk* June, 2026

The Constitution of the United States establishes a government; it also stands as the fundamental law of a people. It shapes daily life, distributes power, and sets a direction for the future. And yet when we ask about the reach and meaning of the Constitution, we are increasingly told to look backward.¹ The answers to our future are said to lie in the past.

As constitutional interpretation becomes rooted ever more deeply in the past—contesting the boundaries of our collective constitutional myths and memories²—the Constitution seemingly has less and less to say about our present. It seems to offer little principled direction for navigating what many describe as a constitutional crisis or for charting a path toward a more hopeful future. On questions ranging from birthright citizenship and territorial acquisition to aggressive federal immigration enforcement, executive intervention beyond U.S. borders, and the “history and tradition” of annexed territories such as Hawai’i, the Constitution’s familiar sources of authority and traditional narratives seem to falter.³ These domains appear to tread into empty constitutional landscapes and newly discovered territory.⁴

Scholars have increasingly traced this backward-looking orientation to conservative legal movements of the last half century.⁵ Critics decry this turn as a retreat from a progressive theory of the Constitution, one rooted in evolving traditions and values.⁶ But the impulse to seek constitutional meaning in the past is not new. Long before the Supreme Court embraced originalism, and long before the modern turn to “history and tradition,” jurists and scholars assumed that the Constitution could not be understood apart from its origins and development.⁷ Constitutional meaning was thought to emerge from historical inquiry. The question, then, was not whether constitutional interpretation should engage with the past, but which past—and through which historical method.

This Foreword argues that our present constitutional impasse stems, at least in part, not from excessive attention to the past but from fixation on a particular kind of past. Modern constitutional theory, I suggest, has been increasingly bounded by what scholars in the historical and social sciences call a methodological nationalism.⁸ By nationalism, I do not mean to invoke familiar federalism debates.⁹ Nor do I use the term nationalism as a pejorative or a critique of those whose research centers the United States and its founders.

Rather, in identifying mainstream constitutional theory as operating within a nationalist frame, I seek to draw attention to a shared theory of the Constitution as the legal expression of a bounded people, unfolding within a stable territorial space, and progressing through a coherent national narrative over time. Within this account, constitutional history exalts moments of founding, amendment, and judicial interpretation, resting on the premise that the nation sprung, whole cloth, from those moments.¹⁰ This account presses to the periphery histories that fall outside the modern nation-state—including, for example, the movement and establishment of borders; the acquisition and governance of new lands and peoples; and processes of development that led to stable borders and the presumed homogeneity of institutions, peoples, and laws over time.¹¹ Even those approaches to constitutional law that reject a focus on the past or argue for greater inclusion within it remain confined at times within this nationalist horizon, by reflexively privileging principles such as equality and by framing constitutional struggle as a contest over inclusion and equal citizenship within an assumed and enduring nation-state.

This Foreword recovers an alternative approach to constitutional history, one developed by the founders of American history, an approach once central to constitutional thought but since largely abandoned. Because these earlier methods developed before the consolidation of a stable nation, they did not take the modern nation-state as their starting point. Instead, they examined how the Constitution was used to produce the nation itself: to draw and redraw borders, to acquire and govern territory, to organize and govern nonsubject populations, to determine the terms of political membership, and to authorize the projection of power across the continent and beyond. Because modern constitutional history seeks coherence and continuity within a national narrative, it often presumes away processes of expansion as either too lawless or too provisional to shape a constitutional history. In contrast, this earlier tradition foregrounded the institutions of government that served as the engine of expansion, as well as the legal frameworks and patterns of practice undertaken by those institutions, to capture the continuities now lost to history. These scholars treated constitutional meaning not as something inherited from the past, but as something that develops over time and arises from the fundamental values and legal practices that structured relations among peoples, lands, and institutions.

By centering a constitutional history that unsettles the presumption of timeless nationalism, this Foreword shows that many of the most pressing constitutional controversies—over territorial power, migration, citizenship, and extraterritorial violence—are not beyond the reach of the Constitution but are, instead, at its core. Recovering these histories clarifies how the U.S. government has long operated beyond the boundaries of the nation and that this power was neither lawless nor solely constrained by international law.¹² Rather, it was structured by constitutional principles and legal doctrines that shaped how the United States governed territories, defined membership, and justified the use of force “abroad.” Some of these principles demand repudiation; others offer resources for critique and reform. Taken together, they reveal how a deep and rigorous study of the past can begin to shed light on a broader vision of the U.S. Constitution—one that provides a more accurate understanding of our past and the trajectory we have charted. Such an understanding better equips us to observe and respond to the ways that this Constitution—through our deference to historical precedent across a range of fields like immigration, federal Indian law, territorial governance, executive power, and foreign affairs—continues to shape our future.

I. The History of Constitutional History

Despite being spoken of as a single field, constitutional history has long been practiced in markedly different ways. At its core, disagreement about constitutional history is disagreement about the role of history in constitutional meaning and constitutional law.¹³ Often, constitutional historians select their methods based on a particular constitutional theory. For some, the text of the Constitution structures the historical inquiry.¹⁴ Here, history supplies the contextual lens through which a written Constitution must be read, grounding constitutional meaning in the circumstances and linguistic understandings that prevailed at the time of drafting and ratification. For others, the Supreme Court, as supreme constitutional interpreter, structures the historical inquiry.¹⁵ Here, history either documents judicial interpretations or provides narratives that might shape interpretations in the future. History serves as a source of institutional restraint within a constitutional system largely shaped by courts, as unelected judges—particularly on the Supreme Court—invoke history, text, and precedent to discipline their expansive power and maintain a connection to the public despite the absence of democratic accountability.

Others still, including the founders of the fields of American history and political science, structured their constitutional history around the practices and norms of the United States. These scholars did not read their history through the Constitution; they read the Constitution as arising from history. When the field first arose in U.S. universities, much of American history was known as “constitutional history,” including the study of “constitutional development.”¹⁶ Indeed, when the first scholars of American history joined the academy, the fields of history and political science were combined into what was then seen as a burgeoning scientific discipline.¹⁷ Like scholars of earth and biological sciences, who studied the natural world, scientists of history studied the development of the United States over time so that they could discern from that history the fundamental principles and doctrines of natural law that led to the improvement and progress of society.¹⁸ They presumed that the fundamental laws of a society, like the laws of physics, could be gleaned through rigorous observation of how the government of that people operated over time.¹⁹

When Harvard President Charles Eliot appointed Albert Bushnell Hart to the faculty in 1883, Bushnell Hart taught the only American history course then offered by Harvard.²⁰ His appointment followed that of John William Burgess at Columbia in 1876 as Professor of Constitutional History, International and Constitutional Law, and Political Science;²¹ together, these appointments marked the beginning of a field that would give rise to both American history and political science over the next two decades.²² Along with a handful of other luminaries, Bushnell Hart and Burgess later authored chapters in Methods of Teaching History, a two-volume compilation capturing the state of the field in 1883.²³ Bushnell Hart opened the volume with a leading chapter on Methods of Teaching American History, outlining both the substance and pedagogy of the field as taught at Harvard.²⁴ Burgess followed with a chapter surveying historical instruction at Columbia.²⁵

From their earliest efforts to define the canon, Bushnell Hart and Burgess centered the American state—its government, founding documents, and national policies—as the object of historical inquiry. American history, for Bushnell Hart, was the study of “the development of the American nation,” as he described it in Epochs of American History: Formation of the Union: 1750–1829.²⁶ Close study of national development promised insight into the “conditions of national growth.” Burgess similarly took the nation as the primary unit of analysis. He opened Book I of his two-volume Political Science and Comparative Constitutional Law with an extended theoretical exploration of “The Nation.”²⁷

Burgess defined a “nation” as a unity of people, bound by language, custom, and culture, inhabiting a unified geography.²⁸ Nations, he argued, were natural forms of political organization, emerging organically from historical conditions.²⁹ He presumed that peoples would, under the right circumstances, form nations and that each nation would possess a distinctive teleology or path of development; that path, for Burgess, ran from fragmentation toward unity.³⁰ The more unified a people became, culturally and territorially, the stronger and more developed the nation would become.³¹ Ultimately, such unity would crystallize in the formation of a government or state, and it was this “national unity” that Burgess identified as the “determining force in the development of modern constitutional states.”³²

From this descriptive account, Burgess drew normative principles of national and constitutional development. Although nations were largely a product of nature and history, Burgess argued that modern constitutional states should actively “follow the indications of nature” by accelerating the process of national development.³³ This meant attaining “proper physical boundaries” and rendering populations “homogenous,” even by force if necessary.³⁴ Determining and maintaining borders and producing a unified population thus became central functions of the constitutional state. This process required the establishment of uniform institutions and law across jurisdictions, as well as mechanisms to nationalize populations through education—or, where “reasonable efforts to nationalize” failed, through deportation or removal.³⁵ Modern states, he argued, must define where their borders end, regulate immigration to support cultural unification, and determine which populations, even within territorial boundaries, should be excluded from the nation and guided toward development elsewhere.³⁶

In addition to territorial consolidation and population management, Burgess identified another core function of the modern constitutional state: “[T]hey must have a colonial policy.”³⁷ By this he meant that nations must “answer the call” of other political communities “for aid and direction,” and, where necessary, forcibly impose organization upon “politically incompetent” populations by assuming sovereignty over them.³⁸ Burgess foresaw no legal or moral impediment to such a “colonial policy.”³⁹ There was, he maintained, “no human right to the status of barbarism,” and such populations possessed no legitimate claim to the territories they occupied.⁴⁰ If they resisted, the modern constitutional state was entitled to “clear the territory of their presence and make it the abode of civilized man.”⁴¹ Burgess acknowledged that North Americans often recoiled from this conclusion, but he noted pointedly that they did so “in spite of the fact they themselves owe their own existence to such a policy.”⁴²

Bushnell Hart’s historical vision paralleled Burgess’s in its emphasis on national development through territorial organization.⁴³ Like Burgess, Bushnell Hart centered “the development of the American nation” in his construction of the historical canon.⁴⁴ He devoted particular attention to questions of territorial governance, tracing, for example, the conception of the territory under the Articles of Confederation as intended to “occupy the position formerly claimed by the colonies.”⁴⁵ Of the five major issues surrounding the formation of the Articles, Bushnell Hart emphasized that none proved more contentious than the question of “how the western country should be held.”⁴⁶ Adoption nearly faltered when three states refused to ratify over this issue alone.⁴⁷

Virginia and other states claimed western lands within their asserted state borders, while others argued that such lands were seized by conquest from a war funded by all thirteen former colonies.⁴⁸ Only when western lands were ceded to the public domain for management by the national government did ratification proceed.⁴⁹ Even then, the process of cession would “be the work of years,” involving principally the removal of Native people, whom Bushnell Hart described as a persistent “stumbling-block” in the path of settlement.⁵⁰

For Bushnell Hart, the Constitution itself was best understood as a continuation of colonial governance. Following ratification, the United States retained a central focus on territorial organization and inherited colonial institutions.⁵¹ The structure of the Constitution, Bushnell Hart observed, was neither a replica of the British Constitution, nor a creatio ex nihilo : “[I]t was really colonial.”⁵² Presidential powers resembled those of the colonial governor. National courts followed the model of colonial courts. Legislatures echoed longstanding colonial bicameralism rather than the contemporary British parliamentary system. Meanwhile, territorial reorganization of western lands remained incomplete: North Carolina and Georgia had not ceded their western lands promised under the Articles, northeastern boundaries remained unsettled, and settlement of newly designated “territories” proceeded in advance of formal governance.⁵³ One of the central functions of the new national government through 1819 was therefore “territorial extension,” involving the resolution of border disputes and the annexation of lands across the continent.⁵⁴ Bushnell Hart was on the forefront of a growing call to document the history of early America with an emphasis on its origins as a colony within the British Empire, rather than simply a movement for democracy against a monarchy.⁵⁵

Subsequent generations of constitutional historians would build directly on this framework. Andrew C. McLaughlin, later awarded the Pulitzer Prize for his seminal work A Constitutional History of the United States,⁵⁶ authored his first major work as part of Bushnell Hart’s twenty-seven-volume History of the American Nation.⁵⁷ In Volume 10, covering 1783–1789, McLaughlin characterized the period under the Articles and leading up to the drafting and ratification of the Constitution as “The Problem of Imperial Organization (1775–1787)” and “Founding a Colonial System (1783–1787).”⁵⁸ Following independence, the fledgling United States was “imperatively called upon to organize its empire” from the St. Croix to the Mississippi River.⁵⁹ Even before the Treaty of Paris formally ended the war and ceded British lands claims in the West, proposals circulated to create western colonies of the United States governed provisionally and admitted to the Union only after maturation. A petition to Congress, along with a draft constitution, proposed a “Colloney of the United States,” and early bills before the Confederated Congress proposed a process in stages, whereby western lands would first be subject to a provisional colonial government before “ultimate admission of the colony into the Union on terms of equality with the older members.”⁶⁰ The Northwest Ordinance,⁶¹ McLaughlin concluded, “laid the foundations of the American territorial system.”⁶²

Later scholarship pushed Burgess’s and Bushnell Hart’s insights further by organizing constitutional history explicitly around territorial expansion and colonial administration. Max Farrand, later chair of Yale’s history department and compiler of the famed Farrand’s Records of the constitutional convention, drafted his 1896 dissertation tracing the legal history of territorial government.⁶³ Farrand emphasized the continuity between the Northwest Ordinance and the constitutional framework that ultimately produced the modern American state.⁶⁴ Shortly thereafter, Bushnell Hart himself offered one of the most comprehensive expressions of a constitutional history centered on territorial expansion and colonial administration in his Foundations of American Foreign Policy, where he narrated American history as a series of evolving colonial policies and efforts at “American colonization.”⁶⁵ He defined a colony as territory subordinate to inhabitants elsewhere and governed by authorities responsive to a distant administration.⁶⁶ From that definition, he charted American history through the “Internal Colonies in the West,” expansion beyond original borders, “[c]olonies of American Indians,” Liberia, the “[r]ecalcitrant [c]olony of Utah,” and even the “colonial conditions” of reconstruction.⁶⁷ The Northwest Ordinance, Bushnell Hart concluded, was “the first great colonial charter granted by the United States,” adapted directly from the “colonial administration of Great Britain” and applied repeatedly as a governing template.⁶⁸

As the nation expanded, so too did the scope of constitutional history. It came to encompass conquest, colonization, territorial governance, and population management—processes that, although abhorrent to modern sensibilities, built a continental nation. Within these practices, historians like Bushnell Hart and McLaughlin located the Constitution itself. McLaughlin later described his method as one in which the “principles of constitutional government” were inferred from the development of the United States government over time, beginning well before these principles were codified in a written document.⁶⁹ His approach was explicitly distinct from “a history of constitutional law as announced by the courts.”⁷⁰ The central questions of the first century, he observed, were whether the “nation would survive,” and “continue to live as an undivided whole.”⁷¹ Given the importance of territorial expansion and imperial administration to that survival, constitutional history was not to be found in judicial opinions, but in the “actual political and social conditions and with actual controversies reaching far beyond the court-room.”⁷²

Because many modern constitutional histories presume the existence of the modern nation-state,⁷³ they have largely ceded much of this original domain. As scholarly attention has concentrated on a tidy national story grounded in constitutional interpretation and judicial practice, vast areas of constitutional history have receded from view. Lost with them are accounts that challenge that tidy story by confronting the principles used to draw borders, acquire land, govern territories, and define and police the population through citizenship. For trailblazers of American constitutional history, the modern nation-state was something that had to be constructed in the late nineteenth century from the patchwork of territories, states, colonies, and contested borders and populations that the United States had built during its first hundred years. The drafting and ratification of the Constitution did not constitute the nation-state as we know it today, nor was its existence ever definite. Instead, the continental United States with stable borders, uniform institutions and law, and homogenous populations was affirmatively built (often in fits and starts) through processes of expansion, colonization, and population management.

In a sense, what began as an enterprise concerned with the development of a nation, a government, and an entire legal order has narrowed to a singular institution and its preferred histories. This contraction has been accompanied by a growing unease within the discipline of history writ large about the explanatory limits of nation-centered narratives.⁷⁴ Over the last decade, promising movements within historical subfields have sought to widen the scope of the discipline and to bridge disciplinary silos. Scholars of early America have called attention to the field’s “vastness,” urging historians to look beyond traditional national leaders, to recover the experiences of those on the margins, and to move past presumed national borders toward more global and imperial frames of analysis.⁷⁵ In a similar vein, diplomatic historians have pressed the study of foreign relations into the eighteenth century, well beyond its late nineteenth century boundaries, challenging the sharp divide between domestic and foreign histories.⁷⁶

Yet these efforts to expand historical perspective have generated their own set of methodological tensions. Scholars of early American history have been criticized for abandoning study of the United States itself—namely its government, its institutions, and its legal and political development over time.⁷⁷ Diplomatic historians struggle to bring what becomes decisively foreign or international in the twentieth century back into the domestic and constitutional context in the nineteenth.⁷⁸ Having moved beyond the traditional national framework, both camps often struggle to articulate how their methods capture anything recognizably constitutional, particularly when constitutional history has come to be identified so closely with courts, doctrine, and formal interpretation.⁷⁹

What is missing from the debates is reflection on an earlier tradition of constitutional history that neither presumed the nation nor abandoned it. These foundational American histories, now largely lost to the discipline, offer a model as to how scholars might study constitutional development without taking national borders, institutional coherence, or population uniformity as given. These historians treated the nation not as a stable starting point but as an object of historical inquiry—one constituted through contested practices of governance, territorial expansion, and population management over time. Because they did not presume the existence of the nation-state, their scholarship brings those processes of constitutional and political development that created the nation to the fore and denaturalizes them. The recovery of this tradition might not resolve entrenched contemporary methodological disputes, but it could expand the horizon of what constitutional history has been and, consequently, what the field might yet become.

II. The Future of Constitutional History

An understandable response to these earlier constitutional histories and their methods is to insist that constitutional law must finally leave the past behind. If the past truly is a foreign country, and the United States is now a modern nation-state, why should historical precedent generated by a fundamentally different political order govern today? Why not simply review these old books, condemn their principles as antiquated, and leave their histories where they appear to belong—in the archive rather than the canon? Why continue to call them constitutional histories at all, thereby risking their rehabilitation and the veneration of a deeply troubling past?

There are at least two reasons why this response is inadequate. The first is that the United States has not fully shed its imperial and expansionist foundations. As I’ve argued in earlier work, the constitutional histories of territorial expansion and colonial administration continue to shape the present.⁸⁰ The United States is far closer to a modern nation-state today than it was during the time of Burgess and Bushnell Hart, yet it still governs colonies, from Indian Country to Puerto Rico to Guam, and the constitutional doctrines that structured expansion and colonization in the eighteenth and nineteenth centuries continue to structure that governance today.⁸¹

In arguments strikingly similar to those advanced by the founders of American constitutional history, I have traced how the constitutional principles and legal frameworks of the Northwest Ordinance served as a “blueprint for empire,” becoming stable doctrine across the long nineteenth century and persisting until today.⁸² These doctrines—governing territorial acquisition, conditional political membership, population management, and the staged extension of self-government—were not anomalous.⁸³ They were central to constitutional development, as these earlier scholars understood it. Calling attention to these doctrines and foregrounding the constitutional nature of American colonialism is therefore not solely an exercise in historical recovery. Rather, it is a necessary step in reckoning with the constitutional principles that continue to structure U.S. governance and in assessing how those principles have been contested, reformed, and resisted over time, particularly through the advocacy of Native nations and other colonized peoples in processes I have termed “borderlands constitutionalism.”⁸⁴ Ultimately, such a reckoning may supply resources for ongoing processes of decolonization already underway within the United States.⁸⁵

A second reason lies in what these histories reveal about the pathologies of modern constitutional theory, history, and adjudication. Excavating the history of U.S. expansion and colonization—and, with it, the practices of territorial governance, population management, and shifting borders—reveals that many constitutional principles now treated as inherent to the nation are historically contingent artifacts of empire. Because modern constitutional memory has largely lost an understanding of how the modern United States was forged out of an unstable, heterogenous, and expanding set of loosely related jurisdictions, the nation-state appears as a natural and inevitable constitutional form. The processes that produced this particular nation-state, often borrowed wholesale from earlier imperial regimes,⁸⁶ go uninterrogated.

As a result, doctrines developed to stabilize borders, impose uniform institutions, and manage populations through coercion and exclusion continue to operate within U.S. law. They do so not as remnants of a repudiated past but as normalized features of constitutional governance and, thus, these doctrines live on within fundamental presumptions that underlie constitutional theory, history, and adjudication. Such presumptions are not enforced through articulated reasons, but rather through deference and judicial avoidance (like the so-called plenary power doctrines) or through selective historical narratives that either omit expansion and colonization altogether or incorporate them stripped of their violence and political context. To the extent that the reasoning behind these doctrines becomes visible at all, it is generally within the practices of the executive branch, where the Office of Legal Counsel and other officials regularly draw on earlier exercises of executive power—including those forged in moments of empire—to define the scope of executive authority today.⁸⁷

A. Imperial Nationalism

The constitutional principles that forged the modern nation-state—stable borders, uniform institutions, and homogenous legal regimes and peoples—continue to operate through a form of methodological nationalism that structures U.S. constitutional culture, as well as its history. Because we take for granted that the United States must exist as a uniform nation, we presume that its constitutional order must be territorially fixed, institutionally uniform, demographically coherent, and shielded by hardened borders. These presumptions now shape constitutional analysis across domains, often without acknowledgement of their origins in expansion and empire.

1. Uniformity of Institutions

One manifestation of this imperial nationalism is the insistence on institutional uniformity across time and space. This insistence flattens historical difference and imposes a false coherence on the constitutional past—one that risks perpetuating the violence of forced uniformity that characterized territorial expansion.

Recent Supreme Court jurisprudence illustrates the problem. The Court’s turn to “history and tradition” to define the scope of constitutional rights rests on the premise that there exists a singular, national constitutional tradition capable of supplying determinate answers—or that it is normatively good to construct such a national tradition as constitutional myth.⁸⁸ Constructing that tradition has proven deeply contested. But much of the debate remains rooted in which aspects of the presumed national history are the most relevant, without challenging the presumption of nationalism in the first instance.⁸⁹ In Wolford v. Lopez, a recent case to go before the Court on the Second Amendment, members of the Court suggested that the legal and constitutional traditions of Hawai’i—from the Kingdom of Hawai’i’s 1838 constitution, through its overthrow and territorial period, and until statehood in 1959⁹⁰—were largely irrelevant because Hawai’i was now “part of the United States.”⁹¹ By contrast, the colonial laws of New Jersey from 1771, enacted before U.S. independence,⁹² were treated as authoritative evidence of the nation’s constitutional tradition.⁹³

This asymmetry reveals how methodological nationalism structures constitutional inquiry. Histories that reflect the instability, plurality, and contested sovereignty of expansion are discounted, while colonial-era practices from the eastern seaboard are elevated as national tradition. In this way, the Court reproduces the logic of expansion and forced uniformity, while insulating that logic from interrogation and critique by presenting the centrality of the “nation” as a neutral, even natural, constitutional method.

2. Uniformity of Peoples

A parallel manifestation of imperial nationalism appears in doctrines governing political membership. The presumption that the United States must be a nation of uniform citizens continues to shape constitutional debates over citizenship, belonging, and exclusion. These dynamics have been made visible in the birthright citizenship debates over issues that are pending before the Supreme Court in Trump v. Barbara.⁹⁴

From the first day of his second term in office, President Trump reignited public controversy over the reach and meaning of American citizenship. On January 20, 2025, he issued Executive Order (EO) 14,160, which purported to redefine the phrase “subject to the jurisdiction thereof” in the Fourteenth Amendment’s Citizenship Clause,⁹⁵ thereby denying birthright citizenship to children born in the United States to undocumented or temporarily documented parents.⁹⁶ The claim that a president could unilaterally reinterpret a settled constitutional provision was itself extraordinary. But equally provocative was one of the government’s central justifications for the constitutionality of the EO: that Native Americans who were tribal members were excluded from constitutional birthright citizenship and that this exclusion supplied precedent for denying birthright citizenship to others today.

The government’s argument provoked outrage not merely because Native peoples were invoked as precedent, but because it rested on the claim that Native peoples had been stripped of birthright citizenship at all.⁹⁷ Here, the presumption of a timeless nation with stable borders and uniform membership was doing decisive constitutional work. Within this frame, all persons born within a territory are presumed to desire citizenship and inclusion in the national project. The complex realities of citizenship in a context of expansion and colonization—realities documented extensively by earlier constitutional historians⁹⁸—disappear.

Lost, too, is the possibility that some peoples governed by the United States might reject U.S. citizenship and instead seek continued membership in their own political communities.⁹⁹ For Burgess, Bushnell Hart, and McLaughlin, such arrangements were not anomalous; they were central to constitutional and national development within an imperial polity.¹⁰⁰ Within modern constitutional doctrine, however, they are unintelligible.

Both uses of the history of expansion and colonization suffer from a similar flaw. They detach doctrines governing citizenship from the imperial context in which they arose. The Citizenship Clause extends birthright citizenship to those born within the United States and “subject to the jurisdiction thereof.”¹⁰¹ The meaning of jurisdiction—particularly in a constitutional order structured by territorial expansion, the plural sovereignty of tribal governments, and colonial governance—cannot be resolved by presuming a nation-state that did not yet exist in its modern form.

Because the United States has recognized the sovereignty of Native nations as separate sovereigns operating within the territorial borders of the United States since the Founding,¹⁰² the topography of U.S. jurisdiction has resembled more closely that of an empire, rather than the homogenized and uniform jurisdiction presumed of a modern nation-state. Even today, tribal governments and tribal law govern hundreds of thousands of Native citizens and lands larger than several states in “semi-sovereign enclave states enclosed within the alleged territories borders of the United States.”¹⁰³ Given the availability of tribal law to structure daily life and resolve disputes, members of tribal governments need not rely on state and local law; thus, they are not “subject to the jurisdiction” of U.S. law in the same way as their nontribal member neighbors.

The presumption of a stable nation-state, read back onto the nineteenth century, has also muddled interpretation of the historical record. For example, during Senate debates on the language that would become the Citizenship Clause in the Fourteenth Amendment, Senator Thomas Hendricks of Indiana asked Senator Lyman Trumbull of Illinois whether he believed that the national government could “extend the laws of the United States” over tribal governments and their citizens.¹⁰⁴ The term “extending the laws” recurs more than a dozen times over the course of the exchange.¹⁰⁵

Some have interpreted “extending the laws of the United States” as meaning the power of Congress to regulate a subject matter through statute.¹⁰⁶ But this interpretation overlooks the meaning of “extending the laws” as a term of art during the process of land acquisition, annexation, and incorporation—a process that Congress had been deeply engaged in from the Founding and that accelerated following the Civil War.¹⁰⁷ Within the legal framework of expansion, to “extend the laws” meant that Congress had passed a comprehensive scheme that applied all or part of the U.S. Code, as well as the U.S. Constitution, to govern all institutions and peoples within an area. It was the exact phrase used, for example, in the name of the Act by which the United States brought Texas into the Union,¹⁰⁸ and it was the process that the Supreme Court understood to abrogate certain governments that preceded it.¹⁰⁹ Situating the archive of constitutional history, like the congressional record, within the history of expansion and empire could better clarify its meaning.

B. The Imperial Boomerang

At the same time, the presumption that the United States is, and always has been, a nation obscures how doctrines forged in colonial contexts return inward to govern the modern polity. Because constitutional law increasingly relies on history, precedent, and practice developed during expansion and empire, courts and advocates increasingly rely upon these histories as precedent to justify the domestic redeployment of colonial governance techniques. Shorn from their colonial contexts, these histories, as well as the practices previously used to administer colonized peoples, are presented as established forms of American government. Further, the current administration has also begun to direct expansionist and imperial doctrines at other nations, like Greenland and Canada, while also drawing heavily on doctrines and governing practices inflected with their own imperial and expansionist pasts.¹¹⁰ Like a boomerang,¹¹¹ doctrines once used to manage territories and govern by force return to shape practices and norms of governance within the nation-state itself.

The recent birthright citizenship litigation again provides a vivid example. The government’s briefs rely on the history of Native Americans not only as precedent for exclusion, but as an interpretive gloss on the constitutional text.¹¹² The argument is that “subject to the jurisdiction thereof” cannot mean simply being subject to U.S. law, because Native peoples in the late nineteenth century, and notably at the height of the reservation-era detention camp system,¹¹³ were subject to the plenary power of the United States and yet were held in Elk v. Wilkins to not be “subject to the jurisdiction thereof” for citizenship purposes.¹¹⁴ From this history, the government argues for an entirely novel meaning of jurisdiction—one that requires a form of “allegiance” that looks eerily similar to colonial doctrines of assimilation.¹¹⁵ The government’s proposed definition would permit the exclusion of populations today deemed unassimilable, as they had been removed and detained during eras of U.S. expansion. Thus, the principle that a nation demands homogeneity—even through violent forms of removal, detention, and assimilation—lives on through the reliance on histories that constitutional theory has forgotten and failed to fully interrogate.

These arguments are not an aberration. Long before the Supreme Court’s decisions in Dobbs and Bruen announced a turn to “history and tradition,” the Court relied on historical practice to determine constitutional meaning. Historical gloss has long structured separation-of-powers doctrines, and historical practice permeates constitutional interpretation across domains from the power of Congress under the Copyright Clause to federalism’s doctrines of traditional state police power.¹¹⁶ But in areas most directly shaped by expansion and population management—federal Indian law and territorial law, for example—the Court relies on history in particularly consequential ways.¹¹⁷

First, it defines these areas as domains of exceptional deference to Congress and the Executive, often treating them as areas of federal common law rather than constitutional law.¹¹⁸ Many of these areas of deference subject to the “plenary power” doctrines—from foreign relations to war power and treaty law, immigration, and other forms of “external” constitutionalism—are historical domains of expansion and colonization.¹¹⁹ Second, the Court repeatedly invokes doctrines forged in empire to justify contemporary exercises of power, even as the constitutional order that produced those doctrines is formally disavowed.¹²⁰ The result is a constitutional jurisprudence that repudiates (or even denies) empire rhetorically while reproducing its logic doctrinally.¹²¹

Conclusion

Recovering the earlier tradition of constitutional history described in this Foreword brings certain faulty logics caused by the presumption of the nation-state to the foreground. It demonstrates that the Constitution has long governed beyond the nation’s borders and outside its presumptive membership, through legal principles that continue to structure constitutional practice today. Whether those principles should be repudiated, reformed, or redeployed is a normative question. But it is one that cannot be meaningfully answered without first recovering the constitutional histories that produced the modern nation-state—and that increasingly serve as its prologue as well.

By unsettling the assumption that the nation-state is the United States’ and its Constitution’s natural and timeless frame, this Foreword has argued that our present impasse reflects not too much history, but too narrow a history—one confined by methodological nationalism and inattentive to the constitutional work of expansion, territorial government, colonial administration, and population management. Constitutional historians at the birth of the field in North America understood that the nation-state itself was a constitutional project, constructed and maintained through contested practices that shaped borders, membership, and the projection of power over new territories and peoples. Reclaiming that broader tradition need not romanticize empire. It could instead clarify how legal and constitutional frameworks forged in those contexts continue to animate contemporary debates over citizenship, territory, executive authority, and the separation of power. Only by confronting these histories as constitutional—rather than peripheral, anomalous, or lawless—can we move beyond inherited myths and develop a constitutional vision capacious enough to reckon honestly with America’s past and to guide its future.

* (Fond du Lac Band of Lake Superior Ojibwe) Moses H. Grossman Professor of Law at NYU Law School. The title of this Foreword is an homage to the pathbreaking work of Dakota scholar Nick Estes, who published Our History is the Future in 2019. Nick Estes, Our History Is the Future: Standing Rock Versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance 17 (2019) (“Indigenous notions of time consider the present to be structured entirely by our past and by our ancestors. There is no separation between past and present, meaning that an alternative future is also determined by our understanding of our past. Our history is the future.”).