As Thomas Jefferson wrote to James Madison on April 27, 1809, “No Constitution was ever before so well calculated as ours for extensive empire.” Nearly a century before the U.S would embark on extra-continental adventures, the founders aptly noted that imperialism was authorized by the U.S. Constitution.
Imperialism in the Making of U.S. Law, 1940-2008 foregrounds imperialism as a lens through which to study legal history. Rather than view foreign affairs as exogenous to the United States and its borders, I view the domestic and foreign terrains of lawmaking as one continuum that functions to serve the interests of U.S. imperialism. I focus on several areas of law that clearly imbricate U.S. foreign affairs including immigration, national security, civil rights, and civil liberties, but also consider the impact of U.S. imperialism on areas of law we view as more discrete, such as evidence, civil procedure, and criminal law. In essence, I lift the veil of domesticity that cloaks U.S. lawmaking, and argue that imperialism and the law are mutually constitutive forces. That is, imperialism is a law-making force in the United States, and the domestic legal apparatus advances U.S. imperialism. Ultimately, I contend that without foregrounding imperialism, we obscure the role of racial and economic power in both foreign and domestic affairs.
In each chapter, I explore the political activism of key internationalist and anti-colonial figures in U.S. history, from Claudia Jones and Leonard Peltier to the Palestinian activists called the Los Angeles 8. U.S. interventions in throughout Asia serve as the world historical stage surrounding this narrative of anticolonial rebellion and imperial repression. I make three key theoretical interventions that, when combined, represent an ontological framework for evaluating the relationship between U.S. imperialism and the law, a relationship based on the management of dissent and consent. First, I trace how U.S. imperialism reproduces racial and economic subjugation within the law. This happens through the creation of a specific form of moral panic that I call an imperial state of emergency, a world historical phenomenon I track across the various chapters that follow. Second, I argue that the imperial state of emergency is used to justify the creation of a dual racial regime, what I define as a process by which racially subordinated individuals and groups are subject to a distinct legal structure that facilitates differential standards in U.S. courts. Ultimately, I conclude that imperialism creates a specific kind of subjectivity that is distinct from race, immigration status, or indigeneity, but reproduces aspects of each into an imperial subjectivity, that of the terrorist. It is notable that the vocabulary of imperialism and colonialism almost never appear in legal cases, despite the clear role of imperialism and colonialism in the prosecutions I describe here. To explain this absence, I borrow the term metonymy from critical theory and comparative literature, and apply it to my analysis of the law.
This dissertation sits at the dynamic intersection of world history, Critical Race Theory, and legal history, and is intended for a broad interdisciplinary academic audience, as well as racial justice advocates and the legal community. As a scholar of Critical Race Theory, I center the relationship between race and the law, and how they constitute one another. Both my historical and legal methods are genealogical. In short, rather than focus on the linear progression of history, the search for origins, and historical or legal continuities, I seek out historical discontinuities and ruptures because they tend to create profound moments of transformation in the law. I employ critical theory to study U.S. legal history and world historical methodology to study U.S. foreign affairs. This means that I am attentive to what is happening in the law as it relates to global events, in addition to domestic events. I use tracing as a methodological technique to track the changes in the law alongside global political events and US foreign affairs.
The significance of this project is its focus on legal history, and how the dialectical relationship between U.S. imperialism abroad and anti-imperialist activism at home shapes the law. I have paid close attention to my methods at every turn, to ensure that they reflect the internationalist impulses and “freedom dreams” that animate this dissertation. While the interlocutors in my story—Claudia Jones, Leonard Peltier, and the Los Angeles 8—may be the most memorable characters here, the primary protagonist in this story is the law. I track how the law changes over time in response to U.S. imperialism, providing cover for imperialism’s violence by executing its objectives in the domestic sphere. The case studies in this dissertation reveal that the most nefarious consequence of the law is not always its violence. Rather, it is its production and management of consent.
