American Colonialism and Constitutional Redemption,
105 Calif. L. Rev. 1751
Americans are debating what it would take to redeem the Constitution’s promise of a “more Perfect Union” in a time of deep and stark disagreements about the nation’s future. Despite the partisan rancor, most Americans share a faith in the Constitution’s redemptive potential. Constitutional faith is the civic religion that shapes our constitutional law, theory, and politics and binds Americans as one nation, indivisible.
This Essay is about something our faith forgets: The promise of a “more Perfect Union” of “We the People” is not redemptive for colonized peoples who did not consent to the Constitution but are subject to American plenary power. This Essay makes three contributions to constitutional law and theory by focusing upon the United States’ colonial relationships with American Indians and Alaska Natives. First, this Essay makes the case that American colonialism poses a fundamental challenge to our constitutional faith. It traces the convergence of American constitutionalism and American colonialism in the conception of government power as a public trust, which is the foundation of federal plenary power over American Indians and Alaska Natives. Second, this Essay argues that the trust conception of constitutional law cannot solve the problem of redeeming American colonialism. Instead, the constitutional trust has reinforced the very power relations and ideology that Indian Nations challenge when they claim a right to national self-determination. Third, this Essay offers a viable alternative for redressing the wrongs of American colonialism by revisiting the problem of redemption from a relational perspective, one that does not focus on the trust that “We the People” place in the Constitution. In comparing trust with contract to develop this relational perspective, this Essay contributes to the emerging literature that reimagines constitutional law by reference to rules and norms from the common law.