In wrapping up his brilliant comedic spoof deftly outing the U.S. for denial of voting rights and equal citizenship in its off-shore territories, Last Week Tonight political satirist John Oliver conceded each island possession has options for improved political status. Oliver was intellectually honest enough to disclose to his audience that local politics often have complicated solutions to the territorial status dilemma.

A less balanced Mother Jones magazine article accused lawyers for President Obama of embracing a “racist” 1901 federal court ruling to oppose a lawsuit asking the courts rather than Congress to reform citizenship laws in the territories. Only in the closing paragraph of the MJ article was it mentioned that most of public and elected as well as traditional leaders in the territory where the lawsuit originated prefer negotiated legislative solutions over unpredictable remedies imposed by judicial edict.

Biting political humor augmented by scathing diatribes may help raise public awareness about undemocratic features of territorial status, but offer no realistic solutions. Both narratives gloss over the reality that under our Constitution the most fundamental rights of national citizenship are redeemed through exercise of the rights of state citizenship. Thus, the actual dilemma faced by U.S. citizens living in American territory but not in a State of the Union truly is no laughing matter.

It is entirely fitting to expose the fallacies in the 1901 U.S. Supreme Court holding that the Constitution does not apply in U.S. island territories populated by “alien races.” No harm in repeating that the same much criticized 1901 ruling was authored by the justice who penned the court’s discredited 1896 opinion allowing “separate but equal” racial segregation to persist.

To its credit LWT went beyond those familiar themes and noted the 1901 ruling implicitly recognized that governing foreign people without the rights and protections of the Constitution was American imperialism. LWT correctly observed the court allowed that “non-incorporation” status only “for a time,” lest it become permanent de facto colonialism.

But LWT and MJ both failed to focus on the true meaning of the single most important feature of the 1901 ruling.  The court explicitly recognized that its approval of temporary imperialist rule over “non-incorporated” territories applied only to territories whose inhabitants were not U.S. citizens (e.g. Philippines, Puerto Rico, Guam).

It is not enough, however, merely to note that this left people in so-called “unincorporated” territories in the subjected status of “nationals but not citizens.”  Far worse, that outcome under the 1901 ruling came about in the same historical time frame during which the court adopted an entirely different legal treatment of the people of Hawaii and Alaska under U.S. territorial rule.

Without contrasting the treatment of the Hawaiians and Alaskans (who like the people of Louisiana were non-citizens until granted citizenship at the time of annexation) to the way Congress and the Supreme Court treated “nationals” in under the ?non-incorporated? status assigned to the Philippines, Puerto Rico and Guam, it is impossible to understand the dilemma of Puerto Rico and the smaller territories today.

To make that crucial legal and historical comparison the focus must shift from the 1901 case applying the imperialistic “non-incorporation” doctrine to territories with non-citizen populations to the even more pernicious and insidiously imperialistic 1922 ruling of the Supreme Court that applied the doctrine of the 1901 case to U.S. citizens in Puerto Rico.

In that even more infamously discriminatory 1922 case, the same “progressive imperialists” among Washington’s legal and political power elites who embraced “unincorporated territory” status policy of 1901 once again prevailed upon the Supreme Court to expand the imperialist doctrine of “non-incorporation.” Only this time the denial of rights under the Constitution was extended by a new judicial mandate imposing continued application of the 1901 “non-incorporation” doctrine to Puerto Rico even after Congress had extended U.S. citizenship to that large and heavily populated territory!

Former U.S. Attorney Dick Thornburgh points out this was the first time in American history that the U.S. citizen population of a U.S. territory was denied rights and protections under the Constitution, going all the way back to governance of Ohio under the Northwest Ordinance.  Thornburgh argues that upon conferral of U.S. citizenship Puerto Rico’s legal and political status was constitutionally indistinguishable from Hawaii and Alaska.

By 1905 the court had recognized Hawaii and Alaska as incorporated under the Constitution based on conferral of U.S. citizenship.  Yet, led by, Chief Justice Taft, who proudly counted himself among the “progressive imperialists” of his era, the court offered mind-bendingly implausible excuses for ruling that U.S. citizens of Puerto Rico could be ruled under the 1901 “non-incorporated” status doctrine in the same manner as non-citizens in Philippines territory after Congress declared it would never be granted citizenship.

Ironically, “non-incorporation” had preserved the option of independence for non-citizens of the Philippines, achieved in 1947.  In contrast, conferral of U.S. citizenship in Puerto Rico was intended by Congress to make U.S. sovereignty over that large and populous American territory permanent.

It was the high court under Taft, not the Congress, that deviated from the Alaska and Hawaii precedents.  That separated citizenship from the Constitution by anomalous judicial fiat, imposing the 1901 “non-corporation” doctrine on U.S. citizens in Puerto Rico.

After the Congress complacently acquiesced in this over-reaching judicial activism denying rights under the Constitution to citizens in Puerto Rico, it was only a matter of time before what Thornburgh calls the “constitutionally flawed” jurisprudence of the 1922 case would be applied to Guam, the Virgin Islands and the Northern Mariana Islands. So began what has become a failed nine-decade experiment in imperial American rule over U.S. citizen populated territorial client states.

But for Puerto Rico and the small territories a new judicial mandate reversing the 1922 case is not the answer.  Even if the courts wanted to repair the damage done in 1901 and made worse in 1922, the power to determine territorial status options is vested by the Constitution in Congress.  So federally recognized self-determination to define the status and rights of citizens in the territories, and “nationals” in American Samoa, is the answer, legally and morally, if we are to restore the anti-colonial values of the Northwest Ordinance.

It took the Supreme Court 58 years to reverse its late 19th century ruling institutionalizing racial segregation, not based on new law but due to political pressure for social change by people in the states who vote. 93 years later the legacy of the 1922 ruling denying Northwest Ordinance treatment to Puerto Rico, 3.6 million citizens in that territory still don’t have equal civil and political rights, and the policy of less than equal citizenship in Puerto Rico has been allowed to spread like a cancer to smaller territories.

Partly because of the rise of Hispanics in the 50 states, there is a growing demand for equality among people in the states who vote for Congress to offer full equality to Puerto Rico through statehood.  Historically, of course, U.S. citizens in the 32 territories that became states realized that statehood was the only way to attain full and equal rights of citizenship under the Constitution. The people of Puerto Rico came to the same realization and voted in 2012 to end territorial status in favor of statehood.

Congress must restore good order in territorial status policy by resolving the status of Puerto Rico, the last large and populous territory eligible by historical precedent for statehood.  It will be in that context that Congress also can address the special cases of each of the smaller territories.  It is time for the anachronism of imperialist era doctrine to end, and for the values of the Northwest Ordinance as a founding document of the Republic to be restored in the temporary and permanent governance of our territories.



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