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![handle is hein.journals/forharoc137 and id is 1 raw text is: LEGAL BORDERLANDS AND IMPERIAL LEGACIES:
A RESPONSE TO MAGGIE BLACKHAWK'S
THE CONSTITUTION OF AMERICAN COLONIALISM
Jennifer M. Chacon*
What are the borderlands? In her brilliant and sweeping explora-
tion of the constitution of American colonialism,1 Professor Maggie
Blackhawk references the borderlands dozens of times.2 She ultimately
looks to the borderlands for constitutional salvation, extracting six
principles of borderlands constitutionalism that she urges us to reckon
with as central to our constitutional law.3 These include principles of
recognition, preservation, self-determination, territorial sovereignty, col-
laborative lawmaking, and nonintervention - concepts that she elabo-
rates upon in significant detail.4
But borderlands are notoriously elusive. The borderlands of the
United States are both everywhere (or, at least, in many places) and no-
where at once.5 So, when I read Blackhawk's generative Foreward, I
thought that the most useful contribution I might make by way of re-
sponse would be to try to flesh out other dimensions of the borderlands,
and to contemplate what might be gained from expanding on her notion
of the borderlands.
In this Response, I will embark on a brief journey in search
of the borderlands. In so doing, I highlight some tensions among the
principles of borderlands constitutionalism, and suggest some additional
* Bruce Tyson Mitchell Professor of Law, Stanford Law School. This Response is dedicated to
my students, past and present. I have learned so much from you. You help me see the world in new
ways.
1 Maggie Blackhawk, The Supreme Court, 2022 Term - Foreword: The Constitution of
American Colonialism, 137 HARV. L. REV. I, 12 (2023).
2 See, e.g., id. at 66-115 (discussing Borderlands Constitutionalism, id. at 66).
3 Id. at go.
4 See id. at go-115.
s On the ubiquity of borders, see, for example, Ayelet Shachar, The Shifting Border of
Immigration Regulation, 3 STAN. J.C.R. & C.L. 165, 166 (2007) (observing that legal boundaries
of inclusion and exclusion do not align neatly with cartographic borders); Mary L. Dudziak &
Leti Volpp, Introduction, 57 AM. Q. (SPECIAL ISSUE) I, 2-4 (2005) (explaining that borders are
constructed through formal legal controls on entry and exit, but also through the conferral or
denial of rights and privileges, and therefore can be both external and internal, id. at 2). The legal
exceptions for the policing of borderland spaces that were purportedly created to ensure national
security within national borders have also become increasingly unmoored from geographic
spaces demarcating land borders between nations. See generally Jennifer M. Chac6n, Border
Exceptionalism in the Era of Moving Borders, 38 FORDHAM URB. L.J. 129 (2010). Bordering pro-
cesses can be, and are, enacted without regard to actual physical proximity to a jurisdictional divide.
But this does not mean that borders are uniform and ubiquitous. [T]he border is not everywhere
for everyone. Mark B. Salter, Theory of the / : The Suture and Critical Border Studies, 17
GEOPOLITICS 734, 750 (2012); see also ANA Mumiz, BORDERLAND CIRCUITRY 7-9 (2022) (ex-
ploring how bordering technologies of surveillance and punishment are deployed against particular
racialized, criminalized populations).
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