In a June 5 report entitled “A federal court just denied birthright citizenship to American Samoans using racist case law,” Mother Jones Magazine advocates denial of democratic self-determination for the people of American Samoa on the issue of their political status.  Instead, our friends at Mother Jones want federal judges to decide the future of the island people.

This rant by the blame-America-first ideologues at Mother Jones insists that any federal court that relies on “racist case law” is practicing racism.  Yet, we don’t recall Mother Jones raving about “racism” when the U.S. Supreme Court relied on the same case law to invent virtual habeas corpus rights for enemy combatants at GITMO.

If Mother Jones is right, relying on the case law emanating from the infamously imperialistic territorial law rulings in the so-called “Insular Cases” is per se “racist.” Of course, that means justices who did exactly that in the GITMO case – Ginsburg, Breyer, Kennedy and Souter – are racists.  Apparently, at Mother Jones it is OK to rely on racist case law as long as you agree with the politics of the court’s ruling.

That betrays Mother Jones’s ignorance about the actual legal meaning of the Insular Cases, in which the court determined that the U.S. Constitution does not apply of its own force to territories that are under U.S. sovereignty but not within a state of the union.  Instead, the court ruled that Congress must determine what provisions of the Constitution and federal law applicable in the states should also be applied in the territories.

Although the court hinted that “fundamental rights” should be respected, that does not mean birthright citizenship or voting rights in federal elections automatically apply in federal territory outside the states.  Indeed, the Constitution expressly limits voting rights to national citizens who also have citizenship of a state (Art. I, Sec. 2 and Sec. 3; Art. II, Sec.1).

The courts also have recognized that the birthright citizenship clause of the Constitution is not universal or automatic in the federal territory outside the states.  That is why citizenship in the territories is conferred by federal law enacted under the territorial clause in Art. IV, and in accordance with the uniform naturalization clause in Art. I, Sec. 8 of the Constitution.

The court’s ruling in the American Samoa case is consistent with these constitutional provisions.   So it is nothing but cheap theatrical race baiting for Mother Jones to suggest that that any reliance on the Insular Cases is motivated by race based hatred.

The truth is Mother Jones does not want us to think of America as less racist today than we were in 1901 when the Insular Cases first were decided. America is arguably the least racist nation in the world, but Mother Jones does not want us to remember that justices of the court who wrote the Insular Cases were born before the Civil War.

The racist remarks of justices in those rulings reflect the social atmospherics of the times.  Mother Jones fails to inform readers that the actual case law of the Insular Cases goes to the application of the Constitution in federal territory, not in a state. The justices who wrote the Insular Cases died before the U.S. and the world recognized the human rights of all people, now promoted and protected by federal and international law.

What former U.S. Attorney General Dick Thornburgh called the “constitutionally flawed jurisprudence” of the Insular Cases needs to be replaced by federal sponsorship of democratic self-determination. That means democratic choices to complete decolonization of all territories based on the real political status options available under the Constitution, chosen freely by an informed electorate in each territory.

This democratic process of empowerment and enfranchisement of people in the territories has been impeded by the Insular Cases in ways Mother Jones is too blinded by ideological rage to see. To actually understand denial of equal citizenship in the territories, and the “national but not citizen” status of people in American Samoa, it first is necessary to understand that the Insular Cases originally applied only to unincorporated territories inhabited by non-citizens.

Historically, if Congress did not grant citizenship then a territory with a non-citizen population could become an independent nation like the Philippines territory in 1946.  A territory with a non-citizen population also could remain under the “unincorporated” status outside the Constitution under the case law of the Insular Cases. In that case the people have the status of U.S. nationals, until there is a democratic decision to seek citizenship or even separate nationality.

In contrast, historically if Congress conferred citizenship in a territory previously populated with non-citizens, the territory was incorporated into the union and eventually became a state. That is the model followed for Louisiana in 1812, and most recently for Hawaii and Alaska in 1959.

Mother Jones totally missed the real problem, which is that Puerto Rico would have followed Hawaii and Alaska, except for a 1922 ruling in Balzac v. Puerto Rico. In that case the federal courts ignored the Louisiana, Hawaii and Alaska precedents, and ruled that Congress could continue to govern a territory as unincorporated without rights of citizenship under the Insular Cases even after U.S. citizenship was granted.

The Balzac case meant the U.S. could govern U.S. citizens in Puerto Rico the same way non-citizens were governed in the Philippines when it was a U.S. territory.

Now we have Washington lawyers trying to use a few well-meaning and patriotic American Samoans to shame federal courts into imposing U.S. citizenship status, even though the people have not petitioned for it.  Since it does not really change the status or rights of U.S. citizens in the other territories, American Samoans might well ask why they should want “Balzac citizenship” anyway.

The court did the right thing by refusing to do something just as paternalistic and undemocratic as the Insular Cases in 1901, by imposing a new but not permanent status by court fiat instead of democratic self-determination.  That only would have made a bad situation worse, just like 1922 Balzac ruling did.



One response

  1. Great piece. Good and insightful explanation of the situation. Dr. William Cleary, Professor of Law Hiroshima Shudo University

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