DEMOCRACY'S FORGOTTEN POSSESSIONS: U.S. TERRITORIES' RIGHT TO STATEHOOD THROUGH CONSTITUTIONAL LIQUIDATION.

• Author: Ebiner, Joshua Stephen

INTRODUCTION 885 I. PRIMER ON THE INSULAR CASES 890 II. CONSTITUTIONAL TEXT, LIQUIDATION, AND CONGRESSIONAL PRACTICE OF ADMISSION 895 A. The Ambiguities of Constitutional Text 896 B. Seeking Clarity Through Liquidation 898 C. Historical Practice of State Admissions 901 1. The Breakaway States, 1791-1863 902 2. The Northwest Ordinance, 1787-18.58 906 3. The Louisiana Purchase, 1803-1812 911 4. The Antebellum Period, 1812-1861 917 5. Admission as a Tool of Social Engineering and Status Manipulation, 1862-1959 920 D. The Upshot 925 III. LEGISLATIVE PROPOSAL FOR ADMITTING THE TERRITORIES 930 CONCLUSION 933 INTRODUCTION

The United States has five permanendy inhabited, unincorporated territories--American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands (the "Territories")--which account for approximately four million U.S. citizens and nationals. (1) The concept of an unincorporated territory is the Supreme Court's novel creation, advanced through a series of cases decided between 1901 and 1922, collectively coined the Insular Cases. (2) These decisions created the "unprecedented distinction between 'incorporated' and 'unincorporated' territories," (3) where the former were "surely destined for statehood" and the latter were given "no such promise of eventual political equality." (4) Prior to the Insular Cases, acquired territory was "to be cut into states... [and] admitted into the Union on the basis of equality with the original states in 'all respects whatsoever.'" (5)

Scholars have spent much ink debating the merits of the Insular Cases. Proponents, offering qualified defenses, suggest that "group-differentiated rights are justifiable in the context of territorial peoples," (6) that the decisions "were the natural and justifiable consequence of a political mandate issued by the legislature and the public," (7) and that the decisions advance a "constitutional theory of secession" (8) that ultimately enabled American imperialism's retreat through territorial deannexation. (9)

Critics and skeptics far outnumber the proponents. Numerous judges and justices have routinely questioned the validity of the claim that some constitutional provisions do not apply to the territories. (10) Justice Gorsuch recently asserted that the Insular Cases "have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law." (11) Scholars and commentators charge that the decisions contravene "the Constitution, constitutional precedent, and long-established historical practice," (12) they undermine the "right to self-determination of all peoples," (13) that the facts used to rationalize the decisions are no longer operative, (14) and that they should be overruled like similarly abhorrent cases like Korematsu v. United States (15) because they perpetuate inequalities premised on racialized justifications." (16) Others advocate for including the Insular Cases in law school curriculum to reveal the "particularities of American expansionism" (17) and their enduring harms from the "perspective of those most affected by them." (18) Although the Supreme Court has repeatedly cabined the Insular Cases, and despite exemplifying characteristics of the anticanon, (19) the doctrine remains good law with its own resilient gravitational pull. (20)

The Insular Cases' legacy permeates modern American law, creating disparities between the citizens of the fifty states and the citizens of the Territories that are increasingly difficult to rationalize. Because of the doctrine, "federal constitutional rights do not automatically apply" to the Territories. (21) Thus, citizens residing in the Territories are denied fundamental rights and privileges of citizenship: they cannot vote in presidential elections, (22) they lack a voting representative in Congress, (23) they can be denied (or provided less) federal aid so long as Congress provides a rational basis, (24) and both Congress (25) and the executive branch retain broad plenary powers over the Territories. (26) Finally, the Territories do not have an inherent right to govern themselves. (27)

This Note argues that the Territories must be granted statehood consistent with the equal footing doctrine. (28) This thesis does not challenge Congress's power to acquire or govern territory, or its constitutional authority to admit (and place reasonable conditions on the admission of) territory into the Union as states. These matters have long been settled through constitutional practice. Neither does this thesis suggest that acquired territory must be immediately annexed into the Union, since there are valid reasons to delay such a decision. (29) Instead, the claim is that permanently inhabited territories that have longstanding, constitutionally significant relationships with the United States must eventually be admitted as states.

The starting point is with the Insular Cases because these decisions allow the judicial and political branches to avoid discharging their respective constitutional obligations to American citizens. As this Note demonstrates, the Insular Cases represent a blatant manipulation of constitutional law and must be disqualified when considered in their proper context within the longstanding legislative practice of acquiring territory and admitting states. This practice will be organized under the framework of constitutional liquidation, which uses legislative practice as an interpretative modality for vague or ambiguous constitutional provisions.

This Note proceeds as follows. Part I briefly introduces the Insular Cases in their historical context and examines the doctrine's legal development. Part II uses Professor Baude's conception of constitutional liquidation to frame and analyze the historical practice of admission that preceded and followed the Insular Cases. This Section provides a comprehensive survey of state admission so as to clarify the relevant history surrounding the decision to expand the Union. Such a survey is necessary because commentators and judges often overlook or misrepresent this practice. For example, in Vaello Madero, Justice Kavanaugh tersely dismissed the complex history of the Territories, merely stating that "various historical and policy reasons" justify differential treatment between the states and the Territories under the widely criticized Insular Cases doctrine. (30) Part III advances a legislative-proposal granting statehood to the Territories. Specifically, this Note proposes that Congress enact a bill analogous to the War Powers Resolution, affording statehood to the Territories unless Congress affirmatively votes to delay admission. Finally, this Note briefly concludes.

1. PRIMER ON THE INSULAR CASES

   Given the robust literature evaluating the Insular Cases, this orienting discussion is fairly brief. (31)

   The Insular Cases were "preceded by a decade of political controversy over imperialism and scholarly controversy over its constitutional implications." (32) In 1893, American businessmen, with American military support, illegally overthrew the Hawaiian Kingdom and imprisoned Queen Lili'uokalani. (33) President Cleveland staunchly resisted efforts to annex Hawaii after such a "substantial wrong," and called for restoring the monarchy. (34) Congress stalled until 1898, when the United States initiated the Spanish-American War, ostensihly to liberate Cuba from Spanish colonialism. (35) Emerging victorious, the United States acquired sovereignty over the Spanish colonies of Puerto Rico, the Philippine Islands, and Guam through the Treaty of Paris, (36) and Spain relinquished its claim of sovereignty over Cuba. (37) The war served as an impetus for annexing Hawaii that same year given the islands' economic and military value in the Pacific. (38)

   Now a battle-tested imperial power, the United States was left to decide the social and political status of the native inhabitants. (39) Imperialism was the central issue of the presidential election of 1900. (40) And with President McKinley's reelection, defenders of imperialism secured "popular and political victories." (41) As some anti-imperialists predicted, McKinley committed the country to dealings with the territories which were difficult to undo. (42)

   Abbott Lawrence Lowell, an influential contemporaneous scholar, opined that "apart from treaty or legislation, possessions acquired by conquest or cession do not become a part of the United States." (43) Unlike previous laws and treaties such as the Northwest Ordinance of 1787, (44) the Treaty with France, (45) or the Treaty of Guadalupe-Hidalgo of 1848, (46) the Treaty of Paris indicated that Congress would determine the "civil rights and political status of the native inhabitants of the territories." (47) Justice McKenna adopted Lowell's thesis in his dissent in De Lima v. Bidwell, (48) claiming that the Treaty of Paris did not provide "for incorporating the ceded territory into the United States," but expressly left that task for Congress. (49)

   Subsequently in Dowries v. Bidwell, in a plurality opinion, Justice Brown endorsed this view, forewarning of the "extremely serious" consequence of inhabitants becoming, "immediately upon annexation, citizens of the United States." (50) The emergent doctrinal rule maintained that some constitutional provisions "[do] not apply to territory which has been annexed but not incorporated into the Union, unless taken there by congressional action." (51) That is, the Insular Cases confirmed Congress's plenary power over territories (52) and established a new rule that the Constitution does not fully apply in unincorporated territories. (53)

   This interpretation of treaties, however, is suspect. For a treaty to be binding, it "must not contravene the Constitution, nor contain any stipulations which transcend the powers therein given to the President and Senate." (54) Before Dowries, nearly one hundred years of practice established that...