A welcome development in recent legal scholarship is an acknowledgment of the powerful legacies of American empire. Maggie Blackhawk, for instance, has explored how this acknowledgment implicates foundational and ongoing elements of American constitutional law by developing a concept of “borderlands constitutionalism.” Responding to Blackhawk, Jennifer Chacon has emphasized how the imperial dimensions of immigration law complicate notions of political territory often inherent in constitutional discourse. Both scholars echo Aziz Rana’s now seminal work on the settler-colonial dynamics of our national legal tradition, which links the American constitutional identity to a territorially expanding Janus-faced logic of exclusion and dispossession.
In this brief post, I want to highlight another overlooked legal dimension of American empire: labor in the unincorporated American territories. The labors of “territorial peoples” have been and continue to be central to the political economy of American empire. From Afro-Diasporic laborers building the Panama Canal in the early 20th-century to contemporary Micronesians trafficked to work in Iowa’s pork industry, territorial labor has been an invisibilized but persistent element of America’s economic rise.
What ties these diverse lands together is that they have been the progressive site of nearly two centuries of experimentation with legal forms that allowed America to exert power over such territories while avoiding democratic accountability. In turn, focusing on these legal realities not only helps chart a more complete history of American imperial acquisitions, but also reveals how the misleading distinction between public and private legality often obscures the operation of American empire. Ultimately, this history has always served as both as an indictment of our constitutional tradition and as a harbinger of tactics of legal disempowerment deployed against continental labor.
The Inchoate Rights of Territorial Labor
The history of American territoriality is intimately intertwined with the country’s continental expansion, originally premised on the notion that all lands under American sovereignty would be incorporated as states. In the common telling, this premise came undone when controversies regarding overseas lands acquired after the Spanish-American War of 1898 led to a set of cases now referred to as the Insular Cases. These cases legitimated the potentially perpetual exclusion of new territories from incorporation, the denial of citizenship to their residents, and their administration under the wholly discretionary plenary power granted by Article IV of the Constitution. The doctrinal logic of the Insular Cases is one of unprincipled and perpetual “balancing” and “flexibility” that leaves individual territories to bargain for essentially fractionalized forms of sovereignty ever subject to renegotiation and revocation by the federal government.
Yet the Insular Cases, however transformative, were predated by a century of legalized regimes of territorial acquisition beyond continental incorporation. Diverse spaces in the 19th-century, including numerous “guano islands” and the founding of Liberia, became nodes in the circulation of labor—intertwined with slavery—from and to the American mainland. The expansion of American mercantile and military interests abroad also required the transnational circulation of labor for extractive and infrastructural enterprises alike, governed by an admixture of public and private forms of possession. As was the case during the long history of maritime labor, the laborers in these territories were most often subject to complete employer domination far from home, frequently backed by the power of the U.S. Navy. In extreme form, there are still today Pacific Islands which are the de facto privatized territories of individual American families, from the generational private ownership of Niihau and its population of former Hawai’ian laborers to the essentially one-hundred and seventy year hereditary feudal title held over the Swains Islands.
What the Insular Cases did achieve was enshrining the inchoate rights of territorial laborers, even as many became involved in the movements behind early 20th-century federal labor legislation. Critically, the territorialized logic of the Insular Cases meant that labor protections would only apply to the territories if they were specifically enumerated in federal legislation. Interested employers thus repeatedly tried to block or remove a given territory’s enumeration in any federal labor statute, from the National Labor Relations Act to the Fair Labors Standards Act. And such inclusion still requires formal acknowledgement that occupied land was an American territory—which does little to reach the many laborers working in formally private operations under the aegis of American military operations abroad.
Consider Wake Island in the Pacific. In the mid-20th century, the island was populated by a range of territorial laborers but administered by an Idaho company tasked with building an intermediary refueling base first used by the U.S. military and then Pan American Airlines. The company’s regulations, which “were the law of the land,” included banning intimate possessions including “alcohol, firearms, transmitting radios, or cameras” for the entirely imported working population. And any resistance from workers resulted in instant deportation without genuine recourse.
In this compromised context, the tactics of racialized labor migration mark the history of near every territory, including those that were later incorporated as states or even granted full independence. For example, the histories of Hawai’i and Alaska prior to incorporation were rife with the racialized churning of territorial peoples, as well as minoritized workers from the continent. Hawai’ian plantation owners, for instance, openly discussed with government officials the different territorial populations they could draw on once they grew dissatisfied with increasingly militant Japanese laborers imported during the 19th-century. In the early 20th-century this involved bringing in workers from the Philippines, then still an American territory. And when Philippine officials made efforts to represent worker interests, planters began to import Puerto Rican laborers exactly because they had no “home nation government” to fight for them.
These histories of racial churning also apply to the circulation of territorial labor into the continental economy akin to the borderlands circulations noted by Chacon. Consider how in the 1960s Marshallese workers were displaced from the island of Kwajalein and only allowed to return during daytime hours when working in the new whites-only replica of suburban New Jersey built for nuclear weapons researchers. In the 1980s, later generations of Marshallese workers migrated visa-free to Arkansas, but given their official status as non-citizens, remained ever wary of exercising their rights participate in any NLRA-sanctioned bargaining. Mapping the full scope of such circulations throughout American empire demonstrates how the disciplining of American labor writ large has always been a transnational affair.
The Avoidance of Democratic Accountability
In reaction to the controversies over the Insular Cases, the public and private machinery of American empire began to seek new legal forms through which to acquire control over overseas territories while evading constitutional scrutiny. Avoiding the very acknowledgment of possession itself became key to the expansion of American empire, apparent in the discourse of temporary stewardship that came to mark most of its post-conflict military occupations throughout the 20th and 21st-centuries.
As Mary Mitchell describes, this strategy of evasion is exemplified by the post-World War II administration of lands once known as “Trust Territories,” whose governance was overtly constructed to seek the “equivalent of sovereign rights without annexation.” In turn, these territories’ economies were intertwined with transnational American companies that wielded their outsized influence on public policy to undermine local regulations. For instance, American law firms routinely act on behalf of employers to pressure public officials, like those in the Northern Mariana Islands who in the 1990s enacted near-total loopholes in their labor and immigration regulations. Though the three other “trust territories” (the Marshall Islands, Palau, and the Federated States of Micronesia) are now considered to be independent nations under international law, they still must routinely bargain with the federal government over core aspects of their effective sovereignty. Notably, formal independence also meant that their residents lost any federal labor rights previously enjoyed under specific enumeration.
If one then considers workers on even more ambiguous territorial arrangements, such as those governing Guantanamo for over a century or the Indian Ocean base at Diego Garcia currently leased to the U.S. Navy, their rights are barely touched by American law and often treated as the domain of private contracting without a corresponding public.
If not already evident, attempts to construct regimes of territorial legal control were facilitated by the overarching disciplinary rationales of U.S. national security. Beyond serving as a major employer and circulator of territorial labor itself, the U.S. military retains the discretion to reshape and redirect the very material human and environmental reality of many territories. Guam is today facing a massive expansion of the U.S. Navy’s presence justified as a means of balancing Chinese power in the Pacific. Under such conditions, even hard-fought organizing victories of the past are easily set aside. The limited extraterritorial reach of American labor law for those directly employed by the U.S. military is then, once again, attenuated by the use of private contactors who, even if fully dependent on military contracts, can be incorporated through any number of accountability-evading forms.
For some territories, geopolitical developments like rising Sino-American tensions can provide temporary leverage, but any bargain struck under the rubric of military necessity will forever by subject to unilateral revision. Even in areas of putative altruistic concern, such as environmental law, the ever-scanning eye of “national security” can remove the vast seabeds surrounding territories, and their rich array of natural resources, from any territorial control. It is another perversion of the Insular Cases that workers on free-standing installations on such seabeds may enjoy greater access to federal labor and employment protections than the peoples whose land produces the legal claims justifying their construction. Thus, well beyond any technicalities of formal law, the influence of the American military is something all territorial laborers face as a perpetual Sword of Damocles hanging over their heads.
One of the saddest legacies of this practice of accountability avoidance is how some American territories have arbitraged their formal status within American trade regimes to draw in and exploit new populations of imported workers–what I call “roaming logics of dehumanization.” Indeed, an element of many territories’ populations today forthrightly support and defend the public benefits created by new regimes that pull in and disempower populations of workers from new locales—largely in Southeast Asia but also from other past and current territories. With some bitter irony, the only protections these migrant workers do receive are from extraterritorial laws intended to end labor exploitation “outside of the United States.”
When Citizenship is Not Enough
In sum, the labor rights of territorial peoples across these increasingly thin forms of imperial accountability are arrayed in an ad hoc terrain of precarious bargains. The illusory nature of formally free legal bargaining is inherently familiar to scholars of labor law, and territorial peoples are often left to engage in even more compromised forms of bargaining over the terms of their work. American empire conscripts territorial labor while its legal innovations allow it to elide even the limited demands of the Insular Cases’ territorial logic. The full histories underlying these broad strokes are as painful as they are legally ambiguous.
Perhaps the most perverse reality is that for territorial labor the promise of citizenship is undermined by the very paucity of American citizenship itself. Formally, even if full citizenship were granted to territorial peoples, they would still be caught up in the territorial logic of the Insular Cases—removed from the automatic coverage of federal labor laws just like any American citizen working in the territories. Much in the same way that citizen-residents of Washington D.C. still enjoy only truncated enfranchisement. And the hollow substance of American economic citizenship means that even incorporation itself, a contested issue in many territories, would still leave unaddressed the varied asymmetries and pressures facing enforcement of federal labor and employment law in the territories—comparatively thin as they are and largely themselves premised on forms of individual and collective bargaining.
This territorialized view of citizenship is no unrelated accident. As Sam Erman notes, the “all-but-rightsless” vision of American citizenship we live with today was historically intertwined with the evolution of the Insular Cases. The process of denying territorial peoples full constitutional rights was wrapped up in the racialized post-Reconstruction constitutional discourse hostile to expansive notions of economic citizenship. Both the long-term hostility to economic constitutional rights and the political marginalization of territorial peoples can be seen in the efforts to block any constitutional innovation by territories themselves. In 1950, Puerto Rico tried to include substantive economic rights in its Constitution—a process again enabled by federal legislative discretion and subject to revocation—all of which were at one point part of FDR’s “Second Bill of Rights.” Yet Congress refused to endorse the process until these rights were removed.
The predicaments of territorial labor have always existed as both indictment and harbinger for all American citizens. The enervated nature of American economic citizenship is increasingly incapable of constraining the forces of transnational capital and its attendant forces of international regulatory arbitrage. As a result, the practical realities that have impacted territorial labor are increasingly coming to mark even larger segments of continental labor. The U.S. economy is increasingly targeted by the whipsaw of tax and investment incentives further strangling struggling locales, as well as employer attempts to use forms of territorial and other logics to legally re-characterize work or set workers against each other. Consider how The Society for Human Resource Management, part of the Koch brother’s wider anti-labor efforts, has devoted resources in several territories to eliminating local labor regulations, including passing right to work statutes. All as part of a long history in which capital saw the territories as marginal and distinct from the continent, but as parts of a single system requiring the same divisive and deregulatory tactics.
It is hard to type out summary words when considering the historical depth of territorial labor’s invisibilized exploitation. Such summary words also risk masking equally rich histories of territorial resistance and resilience. And like many contemporary LPE interventions, this perspective is made possible by generations of scholars of American empire who have worked to expose the circulation and exploitation of territorial peoples whose labor has built the very interstices of American empire at home and abroad. Moreover, it is no coincidence that a great deal of what legal scholarship exists on territorial labor has often been produced by those students who have come to continental law schools and felt the urgent need to give voice to their home territories. In the end, as with the ultimate calls made by Blackhawk and Chacon, reconciling with the history of American empire is not only morally just but provides further impetus for an expansive vision of justice for all those within and without our national borders.