No American citizen living in any of these places can vote for the president. They also do not have a voting representative in Congress. But this inferiority is inconsistent. Puerto Ricans are U.S. citizens and can vote in federal elections if they reside in a U.S. state, but not if they live in Puerto Rico or any of the other territories.
However, American Samoans are not U.S. citizens, so they cannot vote for the president even if they live in all 50 states. This is being challenged in federal courts. All of this is the result of a political and legal mindset that is over 100 years old, but still in effect.
Until the end of the 19th century, everyone assumed that all American territories would eventually become full states, whose residents would become American citizens with rights fully protected by the Constitution. The Northwest Ordinance of 1787 described the process: As new lands opened up to Americans, Congress would initially appoint a governor and judges for the territory and establish a rule of law. When the territorial population exceeded 5,000 adult males, voters elected a legislature and sent a non-voting delegate to Congress. When the territory reached a population of 60,000, the territory would apply for statehood and be admitted to the union.
This process assumed that the territories would be in North America and that most of the territorial population would be made up of people of European descent. These assumptions changed when the United States claimed Puerto Rico, the Philippines, and Guam in 1898, as spoils of war at the end of the Spanish-American War. Puerto Rico and Guam are still American territories.
This expansion gave Americans a clear idea of ââthe nation’s purpose and power in the world, effectively summed up by US Senator Albert Beveridge of Indiana in a speech to Congress on January 9, 1900: “[God] has made us the master organizers of the world to establish a system of chaos. He made us skillful in government so that we could administer government among savage and servile peoples.
A new type of territory
Beginning in 1901, a body of court cases, collectively referred to as “Island Affairs,” created a new constitutional law concerning the relations of the United States with its territories. They began when importing companies challenged tariffs imposed on goods transported from newly acquired territories to the United States. The companies said there should be no tariffs as goods move from one part of the United States to another.
The Supreme Court ultimately ruled that the companies were correct in saying that transportation within the United States was not subject to tariffs, but created an exception, in which the new lands were neither countries foreigners or part of the United States.
These territories, the Supreme Court would rule in the first of the island cases, Downes vs. Bidwell in 1901, were “foreigners in the domestic sense”, “inhabited by foreign races”, and therefore govern them “according to Anglo-Saxon principles may be for a time impossible”.
The decision also included other prejudiced statements, such as: “It is evident that in the annexation of distant and far-flung possessions, serious questions will arise from differences of race, habits, laws and customs of the people. , and differences in soil, climate and production, which may require action by Congress that would be quite unnecessary in annexing contiguous territories inhabited only by people of the same race, or by scattered bodies of native Indians.
As a result, the court created a new distinction: the âincorporatedâ territories of the United States were to one day become states. âUnincorporatedâ territories, on the other hand, were not – and, as a result, their inhabitants have been and still are denied some of their constitutional rights.
A 2020 referendum vote in Puerto Rico helped create a state; Guam officials have called for statehood; and Stacey Plaskett, who represents the people of the U.S. Virgin Islands in Congress, says her constituents deserve all citizenship rights, including the right to vote.
The cases and the context
Then and since, the Downes decision has been described as meaning “the Constitution does not follow the flag”. The territories could be governed by Congress, but not necessarily by the Constitution.
What this meant for the inhabitants of these territories was not clear. And despite five more cases in 1901, and more over the next 20 years, the Supreme Court never really clarified which constitutional protections were available to whom and which were not. He left questions open as to whether key elements of the Constitution, like the jury trial, or even the Bill of Rights, were available in unincorporated territories.
Hawaii was also acquired in 1898, but was treated differently and eventually became a state. The differences were likely for reasons related to partisan politics and a Republican-Democratic balance in Congress.
Interpretation of the Supreme Court over the years
Since the mid-20th century, the tribunal has made small incremental changes to the effects of island cases, fine-tuning technical definitions regarding taxes, trade, and government benefits such as Social Security, Medicaid, and the Nutritional Assistance Program. additional. But the court did not address the overall inferior constitutional status of the territories and the people who live there.
It was not until 1957, for example, in Reid vs. Covert, that the Supreme Court ruled that defendants in the territories have the right to be tried by a jury – a right that citizens have by virtue of Article III of the Constitution. Several judges made it clear that “neither the cases nor their reasoning should be broadened any further”. This statement was widely seen as a signal that the influence of island affairs was waning.
In Torres v. Porto Rico (1979), the tribunal further weakened island cases. Although applied narrowly to the territory concerned, the Supreme Court made it clear that the Bill of Rights in fact applied to American territory.
In its 2008 decision in Boumediene v. Bush, the court ruled that detainees at the US naval base at GuantÃ¡namo Bay in Cuba had the constitutional right of habeas corpus to challenge the validity of their detention. Judge Anthony Kennedy’s opinion read: “It may well be that over time the ties between the United States and one of its territories will strengthen in a way that is of constitutional significance,” and said that the federal government did not have “the power to change the Constitution on or off at will.”
But in its 2020 decision in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, the court withdrew from its tendency to extend constitutional protections to unincorporated territories. It ruled that President Barack Obama’s appointments to the board of directors, a government body aimed at helping Puerto Rico regain financial stability, were local officials and not “officers of the United States” and therefore did not require confirmation from the Senate.
In the future
Many jurists see the Court’s mention of strengthening US territorial ties “over time” as a possible key to reversing island affairs. The original distinctions assumed that the United States “would temporarily rule territories with totally different traditions and institutions.” Most agree that these perceived distinctions clearly no longer exist.
These territories established institutions and principles based on American traditions. The internal governments of these territories have established laws, governmental institutions and legal traditions which cannot be distinguished from any state in the Union. They run elections, have residents who serve in the US military, and play a nation-building role.
But without equal voting rights and representation in Congress, Americans living in those territories cannot remedy their status at the polls.