The Yale Law Journal

March 2021

Truer U.S. History: Race, Borders, and Status Manipulation

Legal History

abstract. In How to Hide an Empire, Daniel Immerwahr “storms the citadel” of U.S. history in a gripping retelling that places empire and its hiding at the heart of the American experiment. Aware that further absences also haunt U.S. history, he invites successors to catalog them to produce yet-truer histories of the United States. This Review takes up the invitation. It sketches out a legal history of race and borders in the United States in which indigeneity, race, slavery, and immigration join empire on center stage. Like Immerwahr’s, this history is of shameful and self-obscuring events. Unlike Immerwahr’s, it centers on the ways that law accomplished and hid the wrongs done. The crucial mechanism is “status manipulation,” a term in deliberate tension with itself. Status presents as a fixed, enduring legal classification that relates people and places to polities. By contrast, manipulation involves purposeful change. Hence, as used here, “status manipulation” combines apparent continuity and actual change as it achieves subordination from the shadows. Status is thus posed as immemorial and permanent despite always being constructed and reconstructed—an apt metaphor for a nation that has endlessly violated its ideals without rejecting them.

author. Sam Erman is Professor of Law, USC Gould School of Law. I thank Greg Ablavsky, Maggie Blackhawk, Mary Corcoran, Howard Erman, Lily Geismer, Ariela Gross, Julia Lee, Jessica Marglin, Hiroshi Motomura, K-Sue Park, Daria Roithmayr, Nathan Perl-Rosenthal, Emily Ryo, Hilary Schor, the JurisDictions reading group, the University of Minnesota Law School Faculty Workshop, the University of Connecticut School of Law Faculty Workshop, the editors of the Yale Law Journal, the amazing team at USC’s Asa V. Call Law Library, my wonderful research assistants, and my patient children.


Daniel Immerwahr’s How to Hide an Empire1reached bookshelves during the 400th anniversary of the arrival of African slaves in Virginia.2 It is a fitting coincidence for a book devoted to teaching Americans that their country has always been fundamentally imperial. Virginia of 1619 was a colony in the English empire. Its geographic bounds were measured in lands lost by the Algonquian.3 Lifetimes would pass before the American Revolution, the United States, and the U.S. Constitution arose. Yet, here in utero, were the original sins of the United States: colonial modes of governance, racialized chattel slavery, and continental American Indian dispossession. It was empire that laid the foundation on which the United States would be built, notwithstanding the intervening revolt against British imperial rule. The ensuing near-quarter millennium has seen the United States emerge as both the world’s longest-continuing national experiment in democracy and the planet’s most powerful empire.

Immerwahr’s aim is nothing short of placing the U.S. empire at the center of mainstream U.S. history. The project is ambitious, worthwhile, and successful. Making U.S. sovereignty and similar forms of U.S. control his touchstone, he “aims to show what U.S. history would look like if the ‘United States’ meant the ‘Greater United States,’” not just the states and Washington, D.C.4 By constitutional definition, these are places whose inhabitants are subject to a federal authority in which they have no formal governance role.5 Racism underlies the second-class status. Immerwahr tells the story masterfully, mixing humor and poignancy with a sense of wonder into a gripping account.

And yet, . . . 1619.

While this is not a book that makes many mistakes, it is a book that does not do everything. Slavery is largely absent from Immerwahr’s account, notwithstanding his ambition to produce a U.S. history that gives empire, racism, and borders their due. The lacuna is partly a result of his focus on lands outside of states. This focus leads to similarly limited attention to interrelated dynamics involving stateside racism, immigration, and the experiences of Indigenous people who no longer hold territory. Also missing is sustained attention to the legal dynamics that thoroughly structure much of what Immewahr describes. Unlike legal historians before and since,6 Immerwahr lays emphasis elsewhere. He pays legal matters little mind.

It is a mark of the book’s richness that Immerwahr welcomes critics to “identify various omissions” that “can be collectively taken as a game plan for how the field might move forward.”7 His is a truer account with lofty and perhaps inevitably unfulfilled ambitions that create opportunities for yet-truer successors.

In that spirit, this Book Review sketches out a revised Immerwahrian account, one that engages head on with the broader legal history of race and borders in the United States. Doing so requires starting with the original American sins: dispossession of American Indians and racial chattel slavery. Both haunt the national character still. Formal empire and immigration have also brought aliens within U.S. borders, and they too have been sites of racist exclusion.8 In every case, law helped accomplish and hide the wrongs done. This is fitting, given that the American ideals of democracy, liberty, equality, and rule of law have also been key causes of willful national blindness to bad U.S. acts.

A crucial mechanism in the shameful and self-obscuring U.S. history of race and borders has been what I term “status manipulation.” The term is in deliberate tension with itself. Status is a legal classification that relates people or places to polities while assigning them a condition or position. It indicates belonging (or its absence), carries official consequences, and generally presents as fixed and enduring. By contrast, manipulation involves purposeful change: the craftsperson’s triumph in transforming raw materials into beautiful and useful objects or the con artist’s malevolent genius at making the improbable appear certain.9 While U.S. legal history is full of legal innovators who sought a better world, this Review’s focus is on oppressors who distorted law for objectionable ends. Hence, as used here, status manipulation combines apparent continuity and actual change to achieve subordination from the shadows. Status poses as immemorial and permanent despite always being constructed and reconstructed—an apt metaphor for a nation that endlessly violates its ideals without rejecting them.