The Islands that Ate the Constitution
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The Islands that Ate the Constitution Colin P. A. Jones1,2
© Springer Nature B.V. 2020
Abstract This article reviews and updates the counterintuitive status of non-state territories under the United States constitution. Taking into account the historical interpretation of the “territorial clause” of the constitution, it focuses on insular territories and considers some of the ways in which their island status has affected the direction of this interpretive path. Keywords Insular cases · U.S. constitution · Federal territory · Territorial clause · Guam · Commonwealth of the Northern Mariana Islands · U.S. Virgin Islands · Puerto Rico · American Samoa
Introduction The US constitution becomes a different document if, while reading it, each time you see the word “state,” you ask the question: “what if you aren’t a state, or in one?” This article will examine some of the answers to such questions, and just how different the constitution can be, depending upon where in “America” you actually are. Moreover, as we shall see, many of these differences were developed through and still exist in a scattering of disparate island territories: Guam, the commonwealth of the northern mariana islands (CNMI), American Samoa in the Pacific, the US Virgin Islands and Puerto Rico.1 1
Guam and Puerto Rico were won from Spain in the 1898 Spanish–American War. The islands comprising American Samoa were acquired under two 1900 Treaties of Cession: of Tutuila and Aunu’u, and of Manua Islands. The U.S. Virgin Islands were purchased from Denmark in 1917 in part to prevent Germany from doing so. The CNMI comprises the rest of the Mariana Islands and were part of the U.S.— administered Trust Territory of the Pacific. This was formed after World War II from the former Micronesian colonies of Japan and included some famous battlegrounds such as Saipan. The CNMI became a commonwealth of the United States in 1986 through the Covenant of the Northern Mariana Islands in Political Union with the United States of America, which was approved by a referendum in the CNMI and a joint resolution of Congress. * Colin P. A. Jones [email protected] 1
Doshisha Law School, Kyoto, Japan
2
Guam Bar Association, Hagåtña, Guam
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Collectively these “unincorporated” territories have over 3.5 million people, and Puerto Rico alone is more populous than many states. The variant status of these island territories and their people under the Constitution—some of which are technically still colonies—can in part be attributed to their insular status.
Prologue: The Many Paradoxes of Territorial Status On April 4, 2019 an act legalizing the recreational use of marijuana was signed into law by the governor of Guam.2 Despite having been duly passed by the island’s democratically elected legislature and signed by its elected chief executive, a suit was immediately filed suit in federal court to have it declared void.3 By September of 2019 the court had rejected the lawsuit.4 In Hawaii and the mainland states, legalizatio
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