Anglo-American Empire and the Crisis of the Legal Frame (Will the Real British Empire Please Stand Up?)

John F. Witt, Yale Law School


Old-fashioned empire is suddenly everywhere. In the United States, discussions of empire used to look as much to what we now call "soft power" as to the seemingly atavistic technologies of high nineteenth-century imperial powers. McDonald's and Coca-Cola, Microsoft and Intel—these were the purveyors of the distinctively American empire of commerce and markets. Since 9/11, however, the traditional approach to empire has come to the fore with all the trappings: soldiers, invasions, occupations, and prisoners. Hard power is back, and so too are a set of difficult constitutional questions: about the Constitution and foreign affairs, about the significance of international law, and about the relationship of foreign affairs authority to domestic rights and powers, to mention only a few.

Such questions, to be sure, were never far away. Issues such as the western expansion of the territory of the United States, the relative powers of the President and Congress in foreign affairs and warmaking, the territorial applicability of the U.S. Constitution, and the relationship between domestic law and the law of nations have been recurrent features of American constitutional dialogue since the Founding.