Does the Constitution Follow the Flag Into United States Territories Or Can It Be Separately Purchased and Sold Marybeth Herald
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Hastings Constitutional Law Quarterly Volume 22 Article 3 Number 3 Spring 1995 1-1-1995 Does the Constitution Follow the Flag into United States Territories or Can It Be Separately Purchased and Sold Marybeth Herald Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Marybeth Herald, Does the Constitution Follow the Flag into United States Territories or Can It Be Separately Purchased and Sold, 22 Hastings Const. L.Q. 707 (1995). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol22/iss3/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Does the Constitution Follow the Flag Into United States Territories or Can It Be Separately Purchased and Sold? By MARYBETH HERALD* Table of Contents Introduction .................................................... 708 I. The Constitution and the Territories: A Brief History .. 713 A. The Supreme Court and the Territories ............. 713 B. Federal Appellate Court Interpretation of the Insular Cases........................................ 719 1. Jury Trials and War Claims-The D.C. Circuit Expands Constitutional Protections ............. 719 2. The Ninth Circuit Narrows Constitutional Protections ...................................... 721 II. Further Separating Constitutional Protections from the Flag-Wabol v. Villacrusis .............................. 722 III. Criticism of Wabol ...................................... 725 A. The Problem of Precedent .......................... 725 B. Misapplication of an Incorrect Test-Reclassifying Fundamental Rights ................................ 730 C. Other Possible Paths to the Same Result ........... 733 1. Affirmative Action Theory ..................... 733 2. The Native American Analogy ................. 734 3. The NMI Status Argument: The NMI Is Not a State Under the Fourteenth Amendment ....... 738 IV. Reliance on the Wrong Policy .......................... 741 A. Covenant Section 805: Preserving the Cultural Base? ............ 742 1. The Goal-Protection of NMI Culture ......... 742 2. Unimpressive Implementation .................. 744 * Associate Dean and Assistant Professor, Thomas Jefferson School of Law;, J.D. Harvard Law School, 1980. The author lived and practiced law in the Northern Mariana Islands from 1982 to 1991 and was counsel on appeal in Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir.), cert. denied, 113 S.Ct. 675 (1992). [707] 708 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 22:707 a. Land as the Proxy for a Complicated Problem-Race as the Easiest Answer ..... 744 b. The Problem Is Outside Pressure; the Solution Is a Restriction Designed with the Help of Outside Pressure? .... 748 c. Majority Enforcement of a Racial Restriction Against a Minority ............. 749 3. The Results Are Clear .......................... 751 B. Preserving the Consensual Nature of the Agreement .......................................... 753 1. Working with a Fait Accompli .................. 753 2. Negotiating the United States Constitution ..... 755 a. Constitutional Principles Are Not Negotiable .................................. 756 b. Get to Yes and Then Claim You Have an International Obligation .................... 757 c. NMI Inhabitants as a Limiting Force ....... 759 d. The Compromises-Sellable but Not Necessarily Workable ....................... 763 V. Adopting a Policy That Addresses Real Problems With Solutions That Are Constitutional ...................... 765 Conclusion ..................................................... 768 Introduction A question that has long troubled courts and commentators is how far the United States Constitution should extend beyond the bor- ders of the states.' At the turn of the century, the Supreme Court developed the theory that portions of the United States Constitution were severable.2 Only certain parts automatically applied in United States territories. Despite criticism of this theory, for the past hun- dred years the United States flag has flown over a number of territo- 1. See, e.g., Gerald L. Neuman, Whose Constitution? 100 YALE L.J. 909 (1991); Charles Fairman, Some New Problems of the Constitution Following the Flag, 1 STAN. L. Rav. 587 (1949); Frederic R. Coudert, The Evolution of the Doctrine of TerritorialIncorpo- ration,26 COLUM. L. REv. 823, 823 (1926) ("It is difficult to realize how fervent a contro- versy raged some twenty-five or more years ago over the question of whether the Constitution follows the flag."). 2. See generally Coudert, supranote 1; Stanley Laughlin, The Application of the Con- stitution in United States Territories: American Samoa, A Case Study, 2 U. HAW. L. Rv. 337 (1980); Howard P. Willens and Deanne C. Siemer, The Constitution of the Northern MarianaIslands: ConstitutionalPrinciples and Innovation in a Pacific Setting, 65 GEO. L.J 1373, 1393-97 (1977). Spring 1995] THE CONSTITUTION IN THE TERRITORIES 709 ries that are subject to an abridged version of the United States Constitution.- In 1992, a Ninth Circuit Court of Appeals decision made editing the Constitution for use in territories easier than ever before by al- lowing United States and territorial negotiators to modify or delete specific constitutional protections.4 The only significant limitation is that the United States and the territorial negotiators must agree on what constitutional protections apply in the territory. The decision drastically increases the power of the negotiators to expand United States sovereignty and conclude permanent political unions at the ex- pense of individual constitutional rights. More specifically, the deci- sion allows the United States to impose race-based land alienation restrictions in its territories outside any equal protection constraints. The story begins in a series of opinions from decades past that came to be known as the Insular Cases.' In these cases, the United States Supreme Court grappled with the question of whether the Con- stitution travels with the flag into the territories. The answer was not a clear "yes" or "no," but rather "it depends." What it depends upon is whether the territory is destined for statehood and whether the con- stitutional right in question is fundamental.6 For various reasons- some of which are suspect and subject to criticism-the United States did not want to be bound by particular constitutional provisions.7 In 1995, the United States and its territories still struggle to define their legal relationship and obligations.8 Today the territories sometimes request that the United States keep some Constitutional provisions out of their back yards. The Commonwealth of the Northern Mariana Islands (the "NMI") is the setting for revisiting the legal and policy questions left dangling in the Insular Cases. The NMI's association with the United 3. As used in this Article, U.S. territories include Guam, the Virgin Islands, Ameri- can Samoa, the Commonwealth of Puerto Rico, and the Commonwealth of the Northern Mariana Islands. The 1990 census placed their collective populations at roughly 4 million although Puerto Rico claims the majority with a population of 3.7. million. BUREAU OF THE CENSUS, U.S. DEF+. OF COMMERCE, 1990 CENSUS OF POPULATION. 4. Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir.), cert. denied 113 S. Ct. 675 (1992). 5. See infra note 27. 6. See Laughlin, supra note 2, at 346; Willens and Siemer, supra note 2, at 1394; JUAN R. TORRUELLA, THE SUPREME COURT AND PUERTO Rico: THE DocrINHE OF SEPARATE AND UNEQUAL 54-56 (Universidad de Puerto Rico ed., 1985). 7. ARNOLDo LinBOwrrz, DEFINING STATUS: A COMPREHENSivE ANALYSIS OF UNITED STATES TERRITORIAL RELATIONS 17-26 (1989); Laughlin, supra note 2, at 344-46. See infra note 175. 8. See Torres v. Puerto Rico, 442 U.S. 465 (1979). 710 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 22:707 States came after centuries of control by various foreign powers. Spain controlled the islands from the sixteenth century until 1898 when Germany took over until after World War I.9 After World War I, Japan acquired the NMI under a League of Nations mandate.10 In 1947, the NMI became part of the Trust Territory of the Pacific Islands under chapters XI, XII, and XIII of the United Nations Charter." Under the Trusteeship system, the United States was "placed in a tem- porary guardian relationship with the trust territories for the purpose of fostering the well-being and development of the territories into self-governing states."' 2 In 1976, the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union With the United States of America was signed into law.' 3 The "Covenant" vested sovereignty in the United States, granted United States citizenship to the NMI's peo- the relationship ple, and contained a variety of provisions4 outlining between the United States and the NMI.' In representing a consensual joining of the NMI under U.S. sov- ereignty, the Covenant is unique. The Covenant is also unique be- cause the NMI and United States agreed that critical parts of the United States Constitution would not apply to the NMI. Three provi- 9. LmBowrrz,supra note 7, at 523-25. 10. Id. at 485-86,525. Naomi Hirayasu, The Process of Self-Determinationand Micro- nesia's PoliticalStatus