On the 50th Anniversary of Martin Luther King, Jr.’s “I Have a Dream” speech, more than 4 million Americans living in U.S. territories – a population greater than that of nearly half the states – are still waiting to realize the dream.
Speaking from the Lincoln monument, King proclaimed that “When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir.” That promise has fallen far short for the residents of U.S. territories because of a series of controversial Supreme Court decisions known as the Insular Cases.
The Insular Cases considered whether the Constitution “follows the flag” to overseas territories acquired after the 1898 Spanish-American War. Breaking from prior precedent, they established a judicial doctrine recognizing two classes of U.S. territories: “incorporated” territories where the Constitution applies in full, and “unincorporated” territories where only certain constitutional rights apply.
First Circuit Judge Juan Torruella has criticized this as a “doctrine of separate and unequal,” comparing the Insular Cases to Plessy v. Ferguson, which just a few years before the Insular Cases had created a legal fiction to sanction racial segregation. As in Plessy, Justice John Marshall Harlan was a passionate dissenter in the Insular Cases, writing: “The idea that this country may acquire territories anywhere upon the earth . . . and hold them as mere colonies or provinces,-the people inhabiting them to enjoy only such rights as Congress chooses to accord to them,-is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution.”
Like Plessy, the Insular Cases belong in the dustbin of history. Just as our constitutional rights should not depend on the color of our skin, neither should they depend on where we live within the United States. Fortunately, the Insular Cases may be on the ropes.
In 2008, the Supreme Court in Boumediene v. Bush cited approvingly to Justice Brennan’s view in an earlier case that “[w]hatever the validity of the [Insular Cases] in the particular historical context in which they were decided, those cases are clearly not authority for questioning the application of [constitutional rights in U.S. territories today].” Quite simply, “[t]he Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.”
The significance of the Insular Cases in U.S. territories today will be front and center in a case appealed today to the D.C. Circuit. Tuaua v. United States considers whether Congress has the power to exclude people born in U.S. territories from the Constitution’s guarantee of birthright citizenship. The Tuaua plaintiffs, born in American Samoa, are labeled by federal statute as “nationals, but not citizens, of the United States.” In June, the District Court dismissed the case, placing dicta from the Insular Cases ahead of the text and history of the Fourteenth Amendment to conclude that “citizenship is not guaranteed to people born in unincorporated territories.”
The argument that the Constitution’s guarantee of birthright citizenship applies throughout the territorial limits of the United States has received strong support from across the ideological spectrum. In 2008, former Solicitor General Ted Olson and Harvard Professor Lawrence Tribe explained in a joint memo examining the eligibility of John McCain to run for President that “birth on soil that is under the sovereignty of the United States, but not within a State” satisfies the requirement for being a “‘natural born’ citizen,” in light of “the well-established principle that ‘natural born’ citizenship includes birth within the territory and allegiance of the United States.”
In 1995, Walter Dellinger wrote as head of the Office of Legal Counsel that “[t]hroughout this country’s history, the fundamental legal principle governing citizenship has been that birth within the territorial limits of the United States confers United States citizenship.” Former Texas Solicitor General James Ho echoed this view in the Heritage Guide to the Constitution: “Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth.”
On appeal, the D.C. Circuit will have the opportunity to embrace the Constitution’s text and follow Boumediene’s guidance to help turn the page on the Insular Cases.
But the Insular Cases and questions about birthright citizenship are only part of the problem. Residents of U.S. territories are also structurally disenfranchised, denied the right to vote for President and lacking any voting representation in Congress. At the same time, they serve at disproportionately high rates in the U.S. Armed Forces. Voting rights for Americans living in the territories and the District of Columbia is a topic that deserves its own post, but suffice to say, as Martin Luther King, Jr., did 50 years ago, “Now is the time to make real the promises of democracy.”
Cross-posted at the American Constitution Society Blog.