Excerpted From: Nina Farnia, Imperialism in the Making of U.S. Law, 96 Saint John's Law Review 131 (2022) (305 Footnotes) (Full Document)


NinaFarnia“[C]onsider the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs. That there are differences between them, and that these differences are fundamental, may not be doubted,” Justice Sutherland instructed in United States v. Curtiss-Wright Export Corp. This decision is cited so often by government attorneys briefing the foreign affairs power that it has come to be known as the “'Curtiss-Wright, so I'm right’ cite.”

By the time of the Curtiss-Wright decision in 1936, the United States had not only colonized much of the North American continent, it also held the Philippines, Puerto Rico, Hawai'i, Alaska, the Panama Canal Zone, the U.S. Virgin Islands, Guam, and American Samoa, all counted in the census as U.S. territories. Scattered throughout the globe, these territories were largely invisible to the public, even though they accounted for over ten percent of the U.S. population. By the end 4of World War II, the United States also occupied parts of Korea, Germany, Austria, and all of Japan.

According to Justice Sutherland, the foreign affairs power is rooted in the enduring will of the sovereign, because “[r]ulers come and go; governments end and forms of government change; but sovereignty survives.” Of course, Justice Sutherland was referring to a phenomenon that was both conceptually and legally distinct from the presidency. The U.S. President is elected by and ultimately accountable to the nation, but the concept of sovereignty denotes the power of the state to govern without bounds. For Justice Sutherland, the foreign affairs power emerges out of the state's sovereignty, particularly vis-à-vis other nations around the world, especially colonial holdings. Although the foreign affairs power is carried out by the executive branch, it is not limited by the parameters of the Constitution.

Justice Sutherland continues to be regarded as the “architect” of what Professor Curtis A. Bradley calls “foreign affairs exceptionalism.” In short, the term suggests that the President's power to adjudicate foreign affairs on behalf of the nation is held to a more relaxed set of constitutional restraints than other powers of the government, essentially exempting the foreign affairs power from the oversight that the U.S. Constitution mandates in other arenas of the law. Although Justice Sutherland began writing about the need to free the hand of the executive from undue constraints in foreign affairs during his tenure as a Utah senator and prior to World War I, this exceptionalism took hold as the dominant ideology governing foreign affairs law in the interwar period, and especially in the wake of World War II. Of course, legal scholars often debate the persistence of foreign affairs exceptionalism and the mechanisms for its execution. Some have effectively periodized major turning points in foreign affairs exceptionalism to parallel the most transformative moments in modern U.S. history, moments of great global conflict like World War II, the Cold War, the War on Terror, and even the Trump presidency. Other scholars associate U.S. continental imperialism during the nineteenth century with the outward imperial expansion of the twentieth century. But despite debates about its implementation and execution, the philosophy that the Executive is uniquely situated to represent the United States in its foreign affairs--and that as such the office requires special flexibility and discretion to carry out those affairs--persists to this day. It should be of no surprise that shielding a major executive power from the limits of the Constitution would advance racial power, particularly in a settler colonial society built atop a foundation of ongoing white supremacy. And yet, such discrimination remains largely unexamined by standard accounts of U.S. foreign affairs. In effect, much of the legal scholarship on U.S. foreign affairs reproduces the logic of foreign affairs exceptionalism, reifying the practice of U.S. foreign affairs as distinct from other constitutional regimes. This has the additional consequence of advancing the logic of colorblindness. That is, the exclusion of other constitutional regimes from our study of foreign affairs, particularly those that imbricate racial power, obfuscates the depth and breadth of white supremacy in the U.S. legal apparatus with respect to both domestic and foreign affairs.

This Article offers an alternative vision of foreign affairs. Specifically, I argue that foreign affairs exceptionalism exacerbates the First and Fifth Amendments' already existing race problem. While the race problem in these two amendments is multi-factoral, this Article focuses on only one of the problems: How does foreign affairs exceptionalism narrow the availability of First and Fifth Amendment protections to dissidents of color, especially those from regions of high interest to U.S. foreign policy, like the Middle East?

As Thomas Jefferson wrote to James Madison on April 27, 1809, “no constitution was ever before so well calculated as ours for extensive empire.” Jefferson aptly noted that imperialism is present in the Constitution, even if only in its spirit, and envisioned a colony that extended from the Atlantic to the Pacific. Because the Constitution both explicitly and implicitly grants the Executive the power to recognize foreign nations, to engage in diplomacy and war with other nations, non-state actors, and political parties throughout the world, and to impose sanctions on other nations, thereby influencing their domestic life, the effects of the U.S. Constitution reach far beyond the confines of the nation's borders, rendering the presumed borders of domestic lawmaking far more porous than we like to think. In essence, as the global footprint of the United States developed and matured over the course of the twentieth century, so too did the reach of its Constitution. Thus, in making my claims, I reimagine the geographies of constitutional lawmaking to include what comprises “the foreign,” the land outside of continental U.S. borders. 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 argue that to understand U.S. foreign affairs as a source of both global and domestic racial power, we must foreground an analysis of imperialism in the making of U.S. law. In Imperialism: The Highest Stage of Capitalism, V.I. Lenin defines imperialism as “an annexationist, predatory, plunderous” project for the division of the world, the partition and repartition of colonies, “'spheres of influence’ of finance capital.” According to Lenin, imperialism emerged when capitalism grew to become a world system of colonial oppression, facilitating the financial strangulation of the global majority by a few nations. Imperialism produces a specific kind of relational subjectivity, one requiring a subordinate population or nation that is subject to the authority of a ruling populaation or nation. Imperial subordination is characterized by foreign economic control, which requires ideological formations of race that produce racial power. Racial power is the enforcement mechanism through which imperialism justifies domination and compels subordination. The law is a vehicle for the production of those ideological formations and provides cover for their execution. Imperialism produces U.S. foreign policy, and foreign policy is the way in which U.S. imperialism is executed around the world. It can be executed by force, mutual collaboration, or various forms of dependence.

By foregrounding imperialism as a prism through which to study U.S. foreign affairs, I capture the relationships of power and dominance embedded in the execution of U.S. foreign policy--namely the economic and racial power that undergirds the relationships between the United States and nations around the world, and how these unequal relationships influence the sphere of domestic lawmaking. Ultimately, I argue that, without foregrounding imperialism, we obscure the role of racial power in U.S. foreign affairs.

I view the law as a critical site of contestation in my study of imperialism and its impacts on U.S. foreign and domestic policy. As renowned scholar Kimberlé Crenshaw noted in her introduction to Critical Race Theory: Key Writings that Formed the Movement, “To the extent that racial power is exercised legally and ideologically, legal scholarship about race is an important site for the construction of that power, and thus is always a factor, if 'only’ ideologically, in the economy of racial power itself.” power appears in the mutually constitutive spaces of domestic and foreign policy, as I outline in Part I, and is reinforced through the law, as I outline in Part II. Thus, the respective terrains of lawmaking and legal scholarship are significant sites for the construction of imperial power.

This Article proceeds in two parts. In Part I, “U.S. Foreign Policy as Racial Policy,” I identify the four key policy pillars of U.S. imperialism: militarism, unilateral coercive measures, foreign aid, and the deployment of the dollar. I then pivot to a brief history of U.S. imperialism in the Middle East, highlighting the geographic and racial specificities that influence the ideological and legal contours of U.S. imperialism. I end this section with an analysis of The Public Report of the Vice President's Task Force on Combatting Terrorism (1985), which was a defining document in the making of anti-terrorism law in the United States and in U.S. foreign policy. In Part II, “The Emergence of Terror as a Legal Category,” I focus on what the F.B.I. has called the first terrorism prosecution, colloquially known as the Los Angeles 8 case. It is one of the longest and most significant cases in U.S. immigration law and national security policy, but has received very little attention by the academy and beyond. I end the Article with a discussion of how the L.A. 8 case influenced the passage of the Antiterrorism and Effective Death Penalty Act (1996) and the Illegal Immigration Reform and Immigration Responsibility Act (1996), thereby influencing both the First and Fifth Amendments and their respective availability to non-citizen dissidents. Ultimately, this Article reveals how imperialism has come to be both a governing and structuring influence in lawmaking, even though it may be absent from the letter of the law. To recount this legal history, I draw on interviews with the judge on the L.A. 8 case, Judge Bruce Einhorn, as well as the lawyers and their clients. I also review the case files, depositions, briefs, and court decisions. Additionally, I conduct archival research at the Ronald Reagan Presidential Library. I also analyze the influence of international legal mechanisms and institutions and conclude with the statutory law that emerged out of the prosecution.

[. . .]

Although recounting the full doctrinal scope of U.S. imperialism as it pertains to domestic and foreign affairs law falls well beyond the parameters of this Article, I will conclude by outlining several key concerns. This legal history challenges several of the normative assumptions underlying the study of foreign affairs law, namely that U.S. foreign affairs operate independently from other forms of racial power endemic to the United States, and that the legal regime of U.S. foreign affairs law does not touch and concern other regimes of constitutional lawmaking imbricating racial power. It also highlights the mutually constitutive roles of both the law and legal scholarship as critical sites of contestation in the making of U.S. imperialism. That is to say, both the law and legal scholarship are vehicles for the production of ideological formations that reinforce U.S. racial power and provide cover for its execution, not just in the domestic sphere, as many Critical Race Theorists have eloquently argued, but in the international sphere as well.

Assistant Professor, Albany Law School; A.B. University of Chicago, 2002; J.D. UCLA School of Law, 2009, specialization in Critical Race Studies; Ph.D. University of California Davis, 2022.