This piece was published first in Balkinization.
For the past six years, I have been toiling away on first a dissertation and now hopefully-soon-to-be-forthcoming book on the legal history of the first U.S. territories. (You can read some of my law review articles based on this research here and here). This work has meant I have spent much time staring at the microfilmed papers of some now-obscure, if often entertaining, early American politicians—people like William Blount (Governor of the Southwest Territory), Winthrop Sargent (Secretary of the Northwest Territory), and Arthur St. Clair (Governor of the Northwest Territory). I’ve always found St. Clair an especially sad figure: one of the most prominent politicians in the Continental Congress before his appointment, he was thoroughly disliked by the citizens of the Northwest Territory, who happily expelled him upon Ohio’s statehood. Retiring to obscurity, he spent the rest of his life fruitlessly petitioning Congress to reimburse his expenses before dying in poverty.
You can imagine my surprise and pleasure, then, when Governor St. Clair made a brief star turn in the U.S. Supreme Court’s decision in Financial Oversight and Management Bd. v. Aurelius Investment this week, as Justice Thomas dragged him from obscurity to recount the original understanding of the Appointment Clause and territorial officials. Unfortunately, Justice Thomas’s enthusiasm for recovering this past did not mean that he got the history right.
Aurelius presented another iteration of the Court’s long-running attempts to make sense of the constitutional status of the territories. The question was whether congressional appointments of territorial officials to Puerto Rico’s financial oversight board required presidential nomination and Senate confirmation consistent with the Appointments Clause. A unanimous Court said no. A seven-Justice majority reasoned that the fact that federal law created the office did not transform the appointee into an officer of the United States, pointing to long-standing practice, although it noted that some high-level territorial officials did seem to require federal appointment.
Justice Thomas, however, would have gone further. Arguing for a very sharp distinction between territorial and national power, he insisted that Congress reenacted the Northwest Ordinance to conform with the Appointments Clause because St. Clair and other territorial governors were also superintendents of Indian affairs, they wielded “powers of the National Government,” not the local government. The First Congress, he insisted, “recognized the distinction between territorial and national powers.”
Unfortunately, this just-so story doesn’t fit the history. Justice Thomas obliquely notes that the governor was not the only Senate-confirmed officer under the reenacted Northwest Ordinance: the Secretary, all three territorial judges, and the general officers of the militia also required presidential appointment and Senate confirmation. What “national,” as opposed to “territorial,” role did they fill? The militia commanders were especially revealing, because, except for rank, this role was identical to other militia officers whom the territorial governor appointed—and to officers in the state militias.
Nor is it obvious that the governor’s role as “superintendent of Indian affairs” on which Thomas places so much weight transformed the governor from a “territorial” to a “national” officer in Justice Thomas’s frame. There was a telling moment in 1796, when the Southwest Territory became the state of Tennessee, that Secretary of State Timothy Pickering wrote to President Washington that the governor would now no longer be “an officer of the United States.” Pickering informed Washington that he would now have to appoint a new superintendent of Indian Affairs “with the advice and consent of the Senate.” Washington didn’t do that. Instead, he named his friend Benjamin Hawkins, former U.S. Senator from North Carolina, as principal Indian agent to the southern Indian nations—a role that Hawkins served in for the next twenty years, performing all the duties that Justice Thomas points to and exercising arguably far more authority than St. Clair ever did, without, as far as I can tell, ever receiving Senate confirmation as Indian agent. (Nor was it obvious he had to: in May 1796, Congress gave the President the power to appoint Indian agents without requiring congressional approval, although in fact the federal government had appointed such agents from the beginning). In 1816, when Congress created the independent post of Superintendent of Indian Trade, Thomas McKenney, who filled that post, was not congressionally confirmed. Then, in 1824, Vice-President Calhoun reorganized the Indian Office and created a post of Superintendent of Indian Affairs separate from the territorial governors; he appointed McKenney to that role without any approval from Congress.
This may seem of mere antiquarian interest—but I think the stakes are actually significant. As the Court notes, there are all sorts of ways in which the federal government in the early territories seemed to depart from strict requirements of the Constitution—but it is not at all clear that that was because the First Congress adopted Thomas’s formalist distinction “between territorial and national powers.” A more accurate account of early constitutional thinking about the territories was that the drafters of the Northwest Ordinance, and then subsequently the First Congress, were explicitly drawing on the British imperial constitution in governing its colonies—with appointed governors and judges and (eventually) territorial legislatures. They thought about the territories’ constitutional status primarily in terms of federalism: that is, about the problem of statehood and admission to the union. As James Monroe famously observed of the Ordinance to Thomas Jefferson, “It is in effect to be a colonial govt similar to that wh prevail’d in these States previous to the revolution, with this remarkable & important difference that when such district shall contain the number of the least numerous of the ‘13 original States for the time being’ they shall be admitted into the confederacy.”
Nonetheless, early Americans quickly became aware of the apparent contradiction between territorial governance and both the letter and spirit of parts of the U.S. Constitution—and offered a range of responses. Some, to be sure, embraced the distinction between “territorial” and “national” authority that Thomas stresses—although this was a difficult position to maintain when, as the Attorney General observed in 1799, the “governor and all persons in authority” in the Northwest Territory “derive their authority from the present constitution of the United States.” (The Supreme Court itself embraced this position in its 2016 decision in Sanchez Valle, holding that Puerto Rico is not a “separate sovereign” for the purposes of the dual sovereign exception to double jeopardy). More popular was the view that territorial government was merely temporary. Still others argued that the Northwest Ordinance, somewhat implausibly, was unconstitutional (a view shared by one originalist who has written about territorial governance). This perspective was particularly popular among territorial citizens who chafed under St. Clair’s rule, whom they described as a “great man placed over us by the authority of the general government: in the appointment of whom this territory has not a single vote; and who wields the sceptre of power and authority in entire independence, and defiance of his subjects!” St. Clair himself offered another interpretation of these apparent contradictions: the territories were not actually part of the United States and would only become so upon statehood. This conclusion seems odd now, but it was consistent with British imperial practice, and arguably foreshadowed the Insular Cases’s conclusion that (unincorporated) territories were merely “appurtenant” to the United States.
The early constitutional history of the territories matters because, as I argue at more length in my book, much—I might even be so bold as to argue most—federal governance in the very first years of the United States happened in the territories. So what Thomas is engaged in is a kind of historical gerrymander. If you can define the bulk of what the federal government did in the early republic as not even federal power at all, then it becomes that much easier to paint an originalist portrait of a miminalist night-watchman federal government from which we have fallen, no matter how hard historians have struggled in recent years to label such portrayals as a myth.
So who does have it right? I think the majority is on the right track when it recognizes both that a line between “territorial” and “national” power existed but that it was not always cleanly or neatly drawn. But I actually think Justice Sotomayor’s concurrence—although it focused much more on the history of Puerto Rico—more accurately reflects how many in the territories would have thought about the relationship. Sotomayor’s argument was that we should see territorial authority in the instances when the people of the territories themselves play a role in conferring that authority. That, in fact, was what those in the first territories clamored for—a chance to choose their own officers themselves, a view consistent with the Court’s own statements about democratic accountability in the context of commandeering. And Congress eventually listened: ironically, in contrast to the celebrated Northwest Ordinance, which created one of the least democratic forms of governance in U.S. history, later territorial governments provided for much greater popular input and control. In my view, this more functional test—rather than a formalist divide anachronistically thrust onto the First Congress’s unexplained actions—better captures what early Americans were arguing about when they argued over the territories.
I am grateful to Kevin Rothenberg of the Stanford Law Library for research assistance on Thomas McKenney’s lack of congressional confirmation.
Gregory Ablavsky is Associate Professor of Law and Professor, by courtesy, History at Stanford Law School. His scholarship focuses on early American legal history, particularly on issues of sovereignty, territory, and property in the early American West.