Author:Dennis J. Mahoney

Page 2673

At the time of independence several states had extensive claims to territory on the western frontier. A dispute over whether such territories were to be administered by the claimant states or by and for the United States long delayed ratification of the ARTICLES OF CONFEDERATION. In 1780 Congress passed a resolution urging the states to cede their claims to the United States. The resolution contained three promises which became the basic principles of American CONSTITUTIONALISM as extended to the territories: that the territories would be "disposed of for the common benefit of the United States"; that they would be "settled and formed into distinct republican states"; and that they would eventually "become members of the federal union and have the same rights of SOVEREIGNTY, freedom, and independence as the other states." After the cession was complete and the western boundary was settled by the Treaty of Paris (1783), Congress embodied these three principles in measures for the temporary government of the territories: the ORDINANCE OF 1784 and the NORTHWEST ORDINANCE OF 1787. The same principles were reaffirmed by the CONSTITUTIONAL CONVENTION OF 1787. Although some delegates advocated maintaining the western lands as a federal colony to be exploited and governed permanently by the existing states, the Constitution provided for the admission of new states on an equal basis with the original states.

The first acquisition of territory beyond the original borders of the nation was the LOUISIANA PURCHASE. After brief debate about the constitutional propriety of such territorial expansion, Congress proceeded to organize the Louisiana Territory following the model of the Northwest Ordinance. Exploration, purchase, and cession, as well as the conquests of the Mexican War, resulted in further territorial expansion.

Congress's power to make rules and regulations for the territories derives from the second clause of Article IV, section 3. In the first important case on territories to be decided by the Supreme Court, AMERICAN INSURANCE COMPANY V. CANTER (1828), Chief Justice JOHN MARSHALL suggested that the power to govern the territories was also implied in the power to acquire them through the use of the TREATY POWER or the WAR POWERS. He added that, whatever its source, Congress's power over the territories was plenary, whether exercised directly or through a local legislature, and extended even to creation of...

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