Excerpted From: Jennifer M. Chacón, Legal Borderlands and Imperial Legacies: A Response to Maggie Blackhawk's The Constitution of American Colonialism, 137 Harvard Law Review Forum 1 (November, 2023) (128 Footnotes) (Full Document)


JenniferMChacon.jpegWhat are the borderlands? In her brilliant and sweeping exploration of the “constitution of American colonialism,” Professor Maggie Blackhawk references the borderlands dozens of times. She ultimately looks to the borderlands for constitutional salvation, extracting six “principles of borderlands constitutionalism” that she urges us to reckon with as “central to our constitutional law.” These include principles of recognition, preservation, self-determination, territorial sovereignty, collaborative lawmaking, and nonintervention--concepts that she elaborates upon in significant detail.

But borderlands are notoriously elusive. The borderlands of the United States are both everywhere (or, at least, in many places) and nowhere at once. So, when I read Blackhawk's generative Foreward, I thought that the most useful contribution I might make by way of response would be to try to flesh out other dimensions of the borderlands, and to contemplate what might be gained from expanding on her notion of the borderlands.

In this Response, I will embark on a brief journey in search of the borderlands. In so doing, I highlight some tensions among the principles of borderlands constitutionalism, and suggest some additional challenges that inhere in any effort to invigorate these principles in the framework of the United States's colonial constitutional law. In the first Part of this Response, I summarize key elements of Blackhawk's Foreword and explain the role that the borderlands, and borderlands constitutionalism, play in her argument. In the second Part, I expand upon this idea of the borderlands, and offer some reflections on how an engagement with other borderland spaces and realities might advance distinct aspects of the constitutional project that Blackhawk sets out. In the third Part, I offer an analysis of immigration law that both bolsters Blackhawk's central claim concerning the colonial legacy that animates and structures U.S. constitutional law and illustrates some of the difficulties of constitutional redemption through borderlands constitutionalism. The final Part offers some brief reflections about how we know what we know about U.S. colonialism and its continuing practical and legal legacies.

[. . .]

Scholars before Blackhawk have grouped the plenary power doctrine of immigration law with that of federal Indian law and the law governing the territories, as she herself acknowledges. When Blackhawk posits that the previously unidentified link between these (and other) doctrinal areas is “American colonialism,” she is definitely on to something. This is an important link that has been identified before by other scholars--including those working in the Critical Race Theory tradition. It seems important to say this now.

Since the racial justice uprisings of the summer of 2020, Critical Race Theory (CRT) has been under political assault. This attack on CRT is part of a broader effort to shore up a constitutional jurisprudence framed around an exclusionary interpretation of the U.S. Constitution, and simultaneously to dismiss all discussions of structural racial inequities in U.S. laws and legal systems. Public schools across the country have been staging grounds for the resulting struggles. And although it is technically true that CRT was never actually taught in almost any of these K-12 schools, it is also true that CRT's opponents were taking aim at something much broader, hoping to paint as “crazy” any critical interrogation, or depiction, of racial inequality in United States history.

In this Response, I briefly mentioned the incomplete and misleading history textbooks I was assigned to read in my middle school days. I initially included that reference incidentally, but as I finish up the writing of this Response, it occurs to me that it relates more deeply to Blackhawk's project, and to this Response. Despite moments of miseducation--moments that occurred at various (and, at least for me, frequent) points in time from kindergarten through law school--Blackhawk and I have had the benefit of the insights of people in our communities who have questioned the orthodoxies of exclusionary, colonial histories, and who have imagined and created more inclusive legal possibilities. Both she and I have also benefitted from the work of scholars who have modeled different ways of bringing the insights of outsiders into our legal analyses and arguments. If we are to ever have any hope of realizing Blackhawk's deeply optimistic vision of a Constitution informed by borderland principles, then we must continue to fight for the teaching of the histories of the borderlands, and to uplift the scholars who bring those insights to bear in their legal analyses.

Bruce Tyson Mitchell Professor of Law, Stanford Law School.