By Emmanuel Hiram Arnaud*
Territorial governance has played a significant role in the development of our constitutional order. From the plenary power doctrine to sanctioning modern-day colonies, territorial expansion has prompted all branches of the federal government to confront tensions between divergent constitutional visions in the name of creating what Chief Justice John Marshall once called the “American Empire.” Yet, issues of territorial governance and expansion are often overlooked in both popular discussions and the law school curriculum. Within the legal academy, the constitutionally sanctioned discrimination of the unincorporated territories finds a natural home in constitutional law. However, I suggest that territorial governance plays a significant role in our understanding of criminal legal systems as well.
In this Article, I encourage professors of criminal law and procedure to use the territories as examples that challenge and complicate the traditional narrative of their courses. Incorporating the territories requires us to re-imagine or reconstruct essential narratives about our courses, and I provide two examples of how to do so. First, and most relevant to criminal law, study of the territories challenges the proposition that criminal statutes are a genuine democratic expression, as territorial residents lack federal voting rights and, consequently, representative power in creating the federal criminal statutes that apply to them. Second, and most relevant to criminal procedure, the territories require us to reflect on established parts of the class, such as the jury trial right, because Puerto Ricans and American Samoans face overwhelming obstacles to serve on federal juries. Incorporating the territories into the criminal law and procedure curriculum is not only a helpful teaching tool, but it also prompts us to challenge and rethink fundamental aspects of our criminal legal system.