On Some Island (Part 1 of 2)
- Questions about how Territories are created and managed have been around since the Louisiana Purchase and have still not been sufficiently resolved.
- The Insular Cases are the closest answer, but they made it so the Constitution only partially applies to the people and governments of the Territories.
- A Constitutional process needs to be created to finally answer all of these outstanding issues.
Despite now making sure the rights of the people are respected and that everyone has a voice and equal protections, the 4.4 million people in the Territories still lack basic safeguards. It seems all we have done to make sure the Constitution applies to the Territories that the Territories would now be treated equally, but that is not the case in the least because there is Supreme Court precedent that says otherwise.
First, we must understand what the Constitution even says about Territories. Article 4, Section 3, Clause 2 states:
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
And that is it! If you thought the Judicial Branch was sparse in concrete action and direction, this section is by far trimmer. The Clause prior to this makes clear that new States can be admitted and just that they cannot be created from existing States unless the States agree to it. The idea of territorial expansion was a foreign idea to the nascent nation that was just trying to get off the ground. Not to say there were not territories because the United States had at least partial control over most of the area east of the Mississippi River, and States started to be carved out as early as Tennessee in 1796 (Vermont and Kentucky were carved out of other States or claims by other States). Thus, the idea of creating new States out of territory was not unheard of, but the idea of gaining territory — especially ones with a population — was not fully explored.
The shortsightedness of this came to a head almost immediately with the Louisiana Purchase in December 1803. At the time, even President Thomas Jefferson was unsure if the United States had the Constitutional authority to purchase the land from France. As a strict interpreter of the Constitution at its word, Jefferson had to fend off critics in his own party for a seemingly hypocritical stance. In the end, he was convinced that since the President was given the right to make treaties, and that the bill of sale was one, that this was well within his and the United States’ allowed abilities, pending approval of 2/3rds of the Senate.
But this only opened a further Pandora’s Box into the question of how law applied to Territories, especially questions of the citizenship of the people living there. The Constitution is silent on this, thus the issue persisted when the Spanish-American War broke out in 1898. The causes, reasons, and actions of this war are chronicled in detail elsewhere, but for our purposes it ended with Spain ceding the territories of Puerto Rico, Guam, and the Philippines (as well at temporary control over Cuba) to the United States. Additionally, Spain sold the Northern Mariana Islands to Germany, which in turn was taken over by a Japanese invasion in World War I. In a similar turn, the Northern Mariana Islands came under the United States control at the end of World War II. Around the same time as the end of the Spanish-American War, the United States also engaged in negotiations with Germany and other powers — as well as forceful actions against the natives — to take control of part of the Samoan islands, eventually creating the territory we know today as American Samoa. The U.S. Virgin Islands, on the other hand, were acquired rather peacefully by a purchase from Denmark.
A *REAL* Equal Rights Amendment (Part 2 of 2)
What is needed for permanent equality for all people?
By the time the U.S. Virgin Islands entered the fray, though, the Supreme Court had already made numerous decisions collectively known as the “Insular Cases”. In summary, the Courts created new extra-Constitutional categories for territory, specifically “unincorporated” and “incorporated” land. In the latter, Congress would pass “Organic Acts” that say the territory is considered an integral part of the United States and has all of the intents and purposes of becoming a State — such as with Alaska and Hawaii. With the “unincorporated” territories, Congress can pick and choose which parts of the Constitution apply with the exception of “Fundamental Rights” that must always be employed.
What is a “Fundamental Right” and how do we pick and choose which rights apply to territories and which do not? It is a difficult question to answer because it varies greatly between the populated territories. The bigger question is: how can we treat people differently just because of where they were born or happen to live, especially when they gain full rights when they come to the fully incorporated United States? Is this not just yet another form of discrimination? Let us see the Federal Government’s response to these very questions:
United States General Accounting Office
Report to the Chairman, Committee on Resources, House of Representatives
U.S. Insular Areas: Application of the U.S. Constitution
The Constitution does not apply in its entirety to territories solely by virtue of the fact that those territories have come under the possession and control of the United States. Whether rights under the Constitution apply to a territory and, if so, to what extent depends essentially on either of two factors, according to a series of Supreme Court decisions called the Insular Cases. The first is whether the right in question is considered to be “fundamental” or not; the second is whether the Congress has taken legislative action to extend the Constitution to the territory.
Most of the Insular Cases, which comprise the first extensive consideration of the application of constitutional and statutory rights within United States territories, date from 1901 to 1904, following a period of territorial expansion by the United States. In these cases, the Supreme Court developed the idea that, without any action by the Congress, constitutional rights that are considered to be “fundamental” are available in all areas under the jurisdiction of the United States, but that other rights apply only when extended to such areas by law. The Court pointed out that even though some of these fundamental rights may not be expressly stated in the Constitution, it would be wholly inconsistent with the principles that underlie our government not to preserve them in the territories. Thus, in one of the Insular Cases, Downes v. Bidwell, the Court said that the Congress, in creating governments for the territories, could not do so in such a way as to abridge fundamental rights.
The question whether particular rights are fundamental has been answered only as specific cases come before the Supreme Court. The Court has identified the Fifth Amendment privilege against self-incrimination as a fundamental right. On the other hand, the Court has said that the Sixth Amendment right to trial by jury and the Fifth Amendment right to indictment by a grand jury “are not fundamental in their nature, but concern merely a method of procedure….”
Under the Insular Cases and subsequent decisions, rights other than fundamental rights, even though they may be stated in the Constitution, do not apply to the territories or possessions unless the Congress makes them applicable by legislation. The Congress can by law extend the coverage of the Constitution in part or in its entirety to a territory or possession, and has done so with respect to some territories. In the absence of such congressional action, however, only fundamental rights apply. The Insular Cases use the term “incorporated” to distinguish territories where all constitutional rights apply, because a statute has made them applicable, from “unincorporated” territories, where fundamental rights apply as a matter of law, but other constitutional rights are not available.
Recall when we stated that we need the Supreme Court to have the ability to revisit prior rulings: This is another example where the Courts have made a decision that is questionable at best on vast grounds. Whether it is a question of if Courts can create policy and terms, interpretations of the Constitution, deciding what rights are “fundamental” or not instead of saying all rights are “fundamental”, or allowing discrimination by place born and lived — this is another example of why not only are the updates to the Constitution desperately needed, but also where additional changes are needed in order to override prior Supreme Court decisions.
Because of these factors, it is obvious that Article 4, Section 3 needs some immense expansion to answer all the questions that have been asked since the Louisiana Purchase, and most especially since the end of the Spanish-American War. This begins with the question: how does the United States gain territory?
By Amendment to the Constitution of the United States, Article 4, Section 3, Clause 3 shall be added:
Populated Territory may be added to the United States only via a treaty — whether the treaty is made ensuing peace, surrender, intent to join the Union, purchase, or trade — and only if the majority of the population has voted to join the United States. Unpopulated and claimed Territory may be added to the United States through the same method and only requires the agreement of the governing body. Unpopulated and unclaimed Territory may be added to the United States through an act passed by Congress.
We make it explicit here that populated and claimed as well as unpopulated and claimed Territory become a part of the United States by a treaty. Since the Constitution already has a procedure for treaties (created by the President, approved by 2/3rds the Senate), the same methodology can be followed. Those treaties can be peace treaties, surrender treaties from a conquered nation in war, an independent nation itself deciding it wants to join the United States, or purchase or trade with another country. Basically, if you can acquire it, it can become part of the United States. It seems so basic, but these functions do not exist in the Constitution and as such the actions taken since 1803 could be argued as un-Constitutional and eventually proven so in the Supreme Court.
While it may feel like there is no untouched and unclaimed land in the world, that is not entirely true. Right now, Antarctica is not allowed to be claimed by treaty, but that treaty expires in 2048 and there are already violations that make it clear that some nations may try to claim sovereignty there — notably with rising temperatures that expose more land and resources as the ice melts and coastal cities are inundated. Also, new islands are created above volcanoes in the ocean — especially in the Pacific — on a fairly regular basis (geologically speaking). Finally, as technology expands, humans may create additional space stations and colonies on other bodies in the Solar System; so, too, could these be considered unclaimed and unpopulated lands. We do not know what the future holds, thus the need to be prepared for any eventuality in a way that the founders could not have imagined.
An important side note is that should a territory have people in it, the population of an area must also agree in the majority to become a territory. Thus, if the President tries to buy the Territory of another country (via a treaty), the transaction would be invalid unless a majority of voters in the territory agreed to become a part of America. Thus, we stop forced imperialism both from the purchase perspective and from the invasion perspective. There is a technical difference between an area being occupied by the United States and becoming a Territory of the United States. The key difference here is stated as the populous’ agreement that they even want to be a part of our country.
This harkens back to the Philippines and Cuba both fighting revolutions to end Spanish rule and gain independence. Initially, the United States stepped in and seemed to be on the side of the revolutionaries, although for our own reasons. Those reasons quickly turned where — instead of helping the revolutionaries — the United States took control and suppressed the rebellion. While the Spanish-American War was short, the ensuing Philippine-American War lasted over 3 years and killed far more people — at least 200,000 Filipinos, possibly as many as a million. In the end, the United States occupied and controlled the Philippines until 1946, minus the time occupied by Japan during World War II.
TO BE CONTINUED…