Court ordered citizenship same as states could change status without consent of people  


In the Fitisemanu case, attorney Charles Ala’ilima is representing plaintiffs in association with the special interest lobbying and litigation project “Equally American.”  In that role Ala’ilima recently asserted:

“Reconsideration of the Insular Cases will not address…American Samoa’s self-determination or future political status…whether the people of American Samoa would like to be part of the United States or would like to be independent – nor which individual rights secured by the U.S. Constitution apply.” (Attorney Ala’ilima Responds to Amata, Talanei News, Aug. 15)

We all agree all U.S. nationals and citizens are equally American.  But as explained below only Americans born and residing in a state of the union have fully equal rights under the U.S. Constitution.  That is just as true for “citizens” in Guam, CNMI, Puerto Rico and USVI as it is for “nationals” in American Samoa.  The difference in status and rights in the territories compared to the states exists for all U.S. nationals and citizens regardless of race or ethnicity.

A territory is not equal to a state

Only a constitutional amendment giving territories the same rights and powers as states would give all nationals and citizens rights equal to citizens in the states. Of course, eventually that would mean equal federal taxes and burdens of statehood as well.  But amendments need a two thirds vote in Congress and ratification by two thirds of the states, while statehood or merger with an existing state by simple majority in Congress is far less unlikely.

It is precisely the question of “which individual rights apply” that defines the political status of each individual, as well as the political status of all individuals with the same rights, referred to collectively as a “body politic.”  There is a national body politic comprising all individual U.S. citizens, but U.S. citizenship alone does not determine “what individual rights apply” to define the political status of the relevant national, state or local body politic.

For example, being a U.S. citizen does not give an individual a right to vote in federal elections for full and equal representation in Congress or the Electoral College that elects the President.  Only citizens who also are eligible to vote in a state have full federal voting rights and representation, because the Constitution allocates equal voting representation to the body politic of each state.

Similarly, current U.S. nationality in American Samoa and nationality classified as “citizenship” in four other territories is defined by federal territorial law (8 U.S. Code Sec. 1401-1408).  This statutory U.S. nationality and citizenship for persons born in the territories or to American parents overseas was enacted by Congress because only persons born in states acquire nationality and citizenship under the 14th Amendment.

Recent SSI, Medicaid and Nutrition Assistance lawsuits seek “equity” and “equivalence” for territories under federal statutes creating federal social safety net programs.  In contrast, the Fitisemanu lawsuit seeks constitutional “equality” with states possible only with a constitutional amendment giving territories the same status and rights as states.

The courts or the Congress?

Courts do not have the power to amend the Constitution, so Ala’ilima is demanding federal courts declare the 14th Amendment applies in territories the same as in the states.  That would create a new status of permanent incorporation into the union without full equality that would remain possible only though statehood of amendment of the Constitution.

What that means is “Equally American” is not really asking the federal courts to “reconsider,” “overturn” or “reverse” the Insular Cases.  Instead, Fitisemanu demands federal courts repeat the mistake of the Insular Cases, and invent a new political status that has never existed in the history of the United States.

That status would be incorporation through permanent direct application of 14th Amendment citizenship without a path to full equality or a political status ratified by the people.  That is a more colonial status than the non-incorporation doctrine of the Insular Cases.

The attorneys in Fitisemanu convinced a single federal trial judge in Salt Lake City to drink the “Equally American” Kool Aid, relying on the 1898 Wong Kim Ark case to extend by court edict the 14th Amendment national and state citizenship clause to the last five U.S. territories.  Never mind that Wong Kim Ark applied only to a person born in a state not territory, and was decided by the same court that three years later in 1901 ruled in Downes v. Bidwell that the 14th Amendment did not apply directly to territories of its own force!

That single judge trial court ruling confirms that political status and “what rights apply” are inseparably linked.  That un-predicated Fitisemanu ruling was reversed by the three-judge 10th Circuit Court of Appeals in Denver.  But it’s the best evidence that continuing U.S. obligations for reporting to the U.N. annually on American Samoa’s political status self-determination rights is vitally important.

That is not as Ala’ilima incorrectly asserts relevant only if American Samoans seek independence.  To the contrary, annual U.S. reporting under Article 73(e) of the U.N. Charter helps to prevent federal courts or Congress from changing application of the Constitution and federal laws that unilaterally infringe on self-determination on status.

No one is surprised lawyers in Fitisemanu seek yet another appeal.  The goal is to get the Fitisemanu case before the U.S. Supreme Court, more for political than legal purposes.  Let “Equally American” do that for other territories, but stop using American Samoa as a guinea pig in his social litigation experiments.



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