Hawaii’s position as the 50th State provides an interesting vantage to view the governance of those territorial areas that are within the United States but are not a state. Since the late 1890’s, the United States has been vexed by the metaphysical question: how do we classify those persons living in geographic areas under the control of the United States. With the U.S. victory in the Spanish American War, the United States became more of a global imperial power as it acquired such far flung territories as Puerto Rico, the Philippines and Guam. The annexation of Hawaii in 1898 occurred during this time of American expansion.
Our New Possessions by Trumbull White (1898):
After the physical acquisition of the lands, the constitutional and statutory status of the peoples inhabiting these areas had to be addressed. The Supreme Court addressed those issues in a series of cases beginning with the Insular Cases (posted here). The shorthand? The full panoply of Constitutional rights did not protect the residents of the insular areas and Congress had plenary authority to legislate, by statute, the treatment of residents of those areas under U.S. Code.
Consider this month’s case involving whether a criminal defendant who was prosecuted by the federal government unconstitutionally faced a second prosecution in violation of the Double Jeopardy Clause of the Constitution. The Supreme Court said that he did. The case is Puerto Rico v. Valle case (my earlier post here) and the Supreme Court said:
Puerto Rico boasts “a relationship to the United States that has no parallel in our history.” Examining Bd., 426 U. S., at 596. And since the events of the early 1950’s, an integral aspect of that association has been the Commonwealth’s wide-ranging self-rule, exercised under its own Constitution. As a result of that charter, Puerto Rico today can avail itself of a wide variety of futures. But for purposes of the Double Jeopardy Clause, the future is not what matters—and there is no getting away from the past. Because the ultimate source of Puerto Rico’s prosecutorial power is the Federal Government—because when we trace that authority all the way back, we arrive at the doorstep of the U. S. Capitol—the Commonwealth and the United States are not separate sovereigns. That means the two governments cannot “twice put” respondents Sánchez Valle and Gómez Vázquez “in jeopardy” for the “same offence.” U. S. Const., Amdt. 5. We accordingly affirm the judgment of the Supreme Court of Puerto Rico.
Had Puerto Rico been considered a constitutional “state”, then the Double Jeopardy Clause would not apply.
So, it is entirely within the discretion of the Congress to determine when the governments of the insular areas would be afforded “statehood” treatment. Consider the Puerto Rico bond case, Puerto Rico v. Franklin California Tax-Free Trust, In this case, Congress included Puerto Rico in the definition of State in the Bankruptcy Code, but it excluded Puerto Rico as entitled to the protections of Chapter 9 (municipal bankruptcy provisions). As the Supreme Court said:
The Federal Bankruptcy Code pre-empts state bankruptcy laws that enable insolvent municipalities to restructure their debts over the objections of creditors and instead requires municipalities to restructure such debts under Chapter 9 of the Code. 11 U. S. C. §903(1). We must decide whether Puerto Rico is a “State” for purposes of this pre-emption provision. We hold that it is. The Bankruptcy Code has long included Puerto Rico as a “State,” but in 1984 Congress amended the definition of “State” to exclude Puerto Rico “for the purpose of defining who may be a debtor under chapter 9.” Bankruptcy Amendments and Federal Judgeship Act, §421( j)(6), 98 Stat. 368, now codified at 11 U. S. C. §101(52). Puerto Rico interprets this amended definition to mean that Chapter 9 no longer applies to it, so it is no longer a “State” for purposes of Chapter 9’s pre-emption provision. We hold that Congress’ exclusion of Puerto Rico from the definition of a “State” in the amended definition does not sweep so broadly. By excluding Puerto Rico “for the purpose of defining who may be a debtor under chapter 9,” §101(52) (emphasis added), the Code prevents Puerto Rico from authorizing its municipalities to seek Chapter 9 relief. Without that authorization, Puerto Rico’s municipalities cannot qualify as Chapter 9 debtors. §109(c)(2). But Puerto Rico remains a “State” for other purposes related to Chapter 9, including that chapter’s pre-emption provision. That provision bars Puerto Rico from enacting its own municipal bankruptcy scheme to restructure the debt of its insolvent public utilities companies.
Finally, the Supreme Court denied certiorari in the Tuaua v. United States case (posted last year here). This case sought to clarify the status of residents of American Samoa who are not included in the definition of “citizen” under the Immigration and Nationality Act, but are considered “nationals”. As stated by the D. C. Circuit Court of Appeals:
In our constitutional republic, Justice Brandeis observed, the title of citizen is superior to the title of President. Thus, the questions “[w]ho is the citizen[?]” and “what is the meaning of the term?” Aristotle, Politics bk. 3, reprinted in part in READINGS IN POLITICAL PHILOSOPHY 55, 61 (Francis W. Coker ed., 1938), are no less than the questions of “who constitutes the sovereign state?” and “what is the meaning of statehood as an association?” We are called upon to resolve one narrow circumstance implicating these weighty inquiries. Appellants are individuals born in the United States territory of American Samoa. Statutorily deemed “non-citizen nationals” at birth, they argue the Fourteenth Amendment’s Citizenship Clause affords them citizenship by dint of birthright. They are opposed not merely by the United States but by the democratically elected government of the American Samoan people. We sympathize with Appellants’ individual plights, apparently more freighted with duty and sacrifice than benefits and privilege, but the Citizenship Clause is textually ambiguous as to whether “in the United States” encompasses America’s unincorporated territories and we hold it “impractical and anomalous,” see Reid v. Covert, 354 U.S. 1, 75 (1957), to impose citizenship by judicial fiat—where doing so requires us to override the democratic prerogatives of the American Samoan people themselves. The judgment of the district court is affirmed; the Citizenship Clause does not extend birthright citizenship to those born in American Samoa.
So, the takeway? The full panoply of Constitutional protections, including the 14th Amendment, flow from statehood. So does the right to have one’s vote for President counted in the Electoral College. Statehood matters. Absent the sovereignty flowing from statehood, the residents of these areas are left to the statutory whim of Congress,
Don’t get me started on the Trust Territory of the Pacific Islands. That’ll be for another day.