March 7–8, 2025, New York University School of Law

The conference will bring together prominent Originalist and non-Originalist scholars to examine the general question of how the constitution applies in the United States territories. Our motivation to hold this Conference arises out of the recent discussion of the Insular Cases as it applies to Puerto Rico and the Philippines over which the United States took control in very different ways at the conclusion of the Spanish American wars. But the question of territorial control has been with us since the beginning of the Republic starting with the Northwest Ordinance of 1786, which was adopted prior to the ratification in 1789 of the Constitution. It has played a major part of American constitutional order in connection with the spread of slavery in the United States before the Civil War, the Indian territories, the Chinese exclusion Act, and American Samoa. The study of these episodes must be done in connection with the Declaration of Independence, the Constitution as originally ratified, and the Reconstruction Amendments. The Conference will closely examine the original meaning of Article IV, Section 3, Clause 2 of the United States Constitution—commonly known as the Territorial Clause—which provides that “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” The relevant topics also include those related to the doctrines of the separation of powers, both in the United States proper and in the various territories. Finally, it will examine what Justice Gorsuch termed “[t]he debate over American colonialism” that started in the late twentieth century and continues unabated today.

Papers by Emmanuel Hiram Arnaud (“Territorial Criminal Jurisdiction“), Dolace McLean (“How The “Floating Island of Garbage” Is Saving Private Property Rights“), Gregory Ablavksy (“Original Understandings of the U.S. Territories“), Rose Cuison-Villazor (“Rewriting Downes v. Bidwell“), Neil Weare (“Overruling the Insular Cases: What About Federal Taxes?“), Christina Ponsa-Kraus (“Setting the Right Balance: The Application of the Constitution to the U.S. Territories“), Richard Epstein (“The Constitutional Status of Laws in the Territories: Where Justice Gorsuch Got It Wrong on the Insular Cases“), and Anthony Ciolli (“The Tenth Amendment & the Territorial Clause“).