The Volokh Conspiracy

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"Great powers" and the unconstitutionality of the annexation of Texas and Hawaii


As regular readers of this blog have been reminded all too often, I wrote an article about the Necessary and Proper Clause arguing that we should pay more attention to the "great powers" that were thought to be excluded from the scope of the clause.

So it will come as no surprise that I'm a big fan of Territorial Annexation as a "Great Power," a student note by Daniel Rice:

The Roberts Court has recently begun reviving a long-latent structural constitutional principle—that some unenumerated powers are too important to be inferred through the Necessary and Proper Clause. Under this abstractly sensible theory, some powers are too "great" to have been conferred by implication alone. This structural logic seems poised to command majority holdings in the Supreme Court. But it is largely unclear what results so undertheorized a concept might dictate. Now is the time to survey the domain of "great powers" in service of developing an appropriately modest and judicially enforceable great-powers doctrine.

This Note argues that a power to annex foreign territory is too important to be inferred through the Necessary and Proper Clause. Because the Constitution does not enumerate a congressional territorial-acquisition power, Congress therefore disregarded great-powers limitations in annexing Texas and Hawaii through joint resolution. Congressional Globe debates from 1845 reveal that opponents of annexing Texas boldly anticipated this very argument. This Note explores their forgotten constitutional claim in the course of highlighting annexation's historical pedigree as a great power.

Rethinking the constitutional basis for territorial expansion demonstrates that judges cannot apply great-powers principles consistently. And previously overlooked congressional annexation rhetoric supplies fresh diagnostic tools for identifying other great powers, allowing scholars to escape deceptively stale search terms. In fact, this Note marks the first attempt to identify a federal statute struck down on great-powers grounds: the Court's decision in Afroyim v. Rusk can be fairly read as holding that involuntary expatriation is too important a power to be inferred through the Necessary and Proper Clause.

Mike Ramsey had this post on the article last month. Like Mike, I largely read the note as supportive of the "great powers" project in general, although it makes clear that the analysis will not always be easy or mechanical.

More generally, the article advances the inquiry in two ways. First, it provides another example of how the "great powers" idea can work out in practice, with some rich historical analysis. Second, it emphasizes that further research on great powers should not focus only on the Courts—a lot of the important constitutional debates happened in Congress instead. Indeed, this has been the subject of the seminar I'm teaching right now, and I made this point at the conclusion of my short piece on Sharing the Necessary and Proper Clause.