Justice Marshall’s opinion in Johnson v. M’Intosh has long been a puzzle in both its doctrinal structure and in Marshall’s manifest ambivalence and long, strange dicta that are both triumphal and elegiac. In this article, I show that the opinion becomes newly intelligible when read in the context of the law and theory of colonialism, concerned, which, like the case itself, was concerned with the expropriation of continents and relations between dominant and subject peoples.
I examine several instances where the seeming incoherence of the opinion instead shows its debt imperial jurisprudence, which rested on a distinction between two bodies of law: one governing relations among “civilized” nations, the other for relations between “civilized” governments and the “imperfect sovereigns” of other nations. I then show how Marshall’s long dicta reflect the then-prevalent view of the historical progress of societies: from hunter-gatherer to commercial orders, with each stage corresponding to a particular set of property institutions. This historical theory lent intelligibility to the legal distinctions among “civilized” and “lesser” or “imperfect” sovereigns by claiming that the latter occupied earlier stages of development, and that “civilized” nations were legally permitted to override the property institutions of “primitive” societies in order to induce progress. The dicta, then, provide the frame for the reasoning of the case just as the theory of historical progress framed the jurisprudence of colonialism in general.
