Other Lands and Other Skies: Birthright Citizenship and Self-Government in Unincorporated Territories

Abstract

By denying certiorari in Tuaua v. United States the Supreme Court declined to answer the question whether the Constitution confers birthright citizenship in unincorporated territories. Many believe that the question presents a fundamental conflict between individual rights and local self-determination. Denying birthright citizenship discriminates against those born in unincorporated territories, leaves their nationality to the grace of Congress, and extends the racist foundation of the Insular Cases beyond their express holdings. On the other hand, some fear that acknowledging birthright citizenship in unincorporated territories could undermine their self-determination by tightening equal protection constraints on their local governments.

This article argues that there is no fundamental conflict between birthright citizenship and self-government in unincorporated territories. English common law embodied in the original Constitution confers birthright citizenship and permits self-government there. Most of the principal objections to recognizing birthright citizenship were raised in England and rejected in the 1608 decision in Calvin's Case. The remainder are inconsistent with either the common law rule or American legal precedent. The extent to which equal protection doctrine constrains territorial governments is a separate constitutional issue.

Moreover, shortly after the ratification of the Fourteenth Amendment Congress recognized that the common law rule applied in the Oregon Country when it was self-governing, under joint occupation with Britain, and unincorporated under the later-invented standards of the Insular Cases. Congress then believed that Oregon was too distant and likely to separate into its own republic to become or remain a state and discouraged Americans from emigrating there by refusing to provide land grants or to promise statehood. It considered a variety of other destinies for the territory including a military and naval base, an independent republic, and a colony. In 1825 Senator Dickerson firmly resisted colonialism in opposing a proposal to erect military fortifications and extend U.S. revenue laws there:

"As yet, we have extended our laws to no territories, but such as were or are to become states of the Union. We have not adopted a system of colonization, and it is to be hoped we never shall. Oregon can never be one of the United States. If we extend our laws to it, we must consider it as a colony."

Congress rejected the proposal, and Oregon subsequently established its own organic government. Congress did not extend federal law to the Oregon Country until 1848 when it organized the territory and promised statehood by conferring the rights and obligations of the Northwest Ordinance on its residents. Congress abjured colonialism in Oregon only to embrace it later in the insular territories. Congress can correct that error by ceasing to exercise its jurisdiction over the remaining unincorporated territories, which could then constitute (or re-constitute) their own organic governments. The Oregon precedent of organic self-government combined with birthright American citizenship provides a model for self-governing territories that are affiliated with the United States but are neither states nor colonies.

Keywords: Constitutional Law, Citizenship, Birthright Citizenship, Fourteenth Amendment, Unincorporated Territories, Insular Cases, Legal History, Equal Protection, Puerto Rico, American Samoa