Territorial Political Status Is a Legislative Issue

Citizens Without A State author Howard Hills was interviewed by Matt Kaye on 93-KHJ Radio in American Samoa this week. The conversation focused on House Resolution 641, proposing that the Supreme Court decisions on the Insular Cases be rejected.

Listen to the conversation:

 

The resolution has been referred to the Committee on Natural Resources and the Judiciary Committee, and has generated considerable criticism, so it is not clear if the measure will advance.

Hills raises concerns about H. Res. 641 in the interview:

  • The Grijalva resolution mimics the ALCU “friend of court” brief filed in a Supreme Court territorial law case argued last week. The Insular Cases, as critics point out, contain language that modern readers find racist and offensive.
  • Both the ACLU brief and the proposed Congressional resolution ask the court to ignore court territorial law precedents known as the Insular Cases.
  • Without the Insular Cases, much of the understanding of territories’ relationships with the United States would be lost. Instead the courts would have to improvise by judicial edict a new legal definition of the present and future future political status choices for the last five American territories.
  • Focusing on the century old court precedents’ racist language is a pretext for using the federal courts to decide a clearly political question.
  • This is an invitation for courts to violate separation powers simply because Congress has not done what special interests want or expect to solve the future status issue.
  • Ironically, the last time the courts were used to define the answer to territorial political status questions in 1901, the result was the Insular Cases.
  • If Congress abdicates its role under the territorial clause and the courts take the lead again, as in 1901, the odds are any court mandated status model will become another failed territorial regime like the Insular Cases model.
  • The only real solution is for Congress, not the courts, to provide mechanisms for each territory to initiate change to a new status based on informed democratic self-determination on the status options Congress is willing to consider for each territory.
  • That, by the way, is the Northwest Ordinance model of territory status resolution enabling 32 territories to become states, and four territories to become nations.

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