CONSTITUTIONAL LAW Professor Vladeck Fall 2021 | LAW 534C August 25, 2021 Handout I — For Wednesday, August 25, 2021: Before we read the entire Constitution, or cases telling us how we should interpret the Constitution, or cases telling us why courts are the principal arbiters of disputes over the Constitution’s meaning, I thought it would be pedagogically useful for us to dive headlong into an ongoing dispute over the meaning of a specific provision. The Fourteenth Amendment was ratified by ¾ of the states (and, thus, added to the Constitution) in 1868. The first sentence of Section 1 of the Amendment, known as the “Citizenship Clause,” provides that: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” The question at the heart of this assignment is whether the Clause confers “birthright citizenship” on those born in American Samoa — one of the United States’ five “insular” (island) territories. No one disputes that American Samoa is sovereign territory of the United States. But the legal debate is over whether it is “in the United States” for the specific purpose of the Citizenship Clause. I’ve attached excerpts from Fitisemanu v. United States, 1 F.4th 862 (10th Cir. 2021), in which the U.S. Court of Appeals for the Tenth Circuit held, by a 2-1 vote, that the answer is “no.” As you read the excerpts, I’d like you to try to answer the following five (sets) of questions — which will form the basis for our class discussion on August 25: 1. The Tenth Circuit is the intermediate federal appeals court for Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. How did a dispute over American Samoa (which is in the Pacific Ocean) end up there? That is, what is the “posture” of this case? Who sued whom? Where did they sue? What are they seeking? 2. Judge Lucero writes the “majority” opinion, at least with respect to Parts I–III. Why does he hold that American Samoa is not “in the United States” for purposes of the Citizenship Clause? How much does he focus on constitutional text? How much does he focus on the background to (and purposes of) the Clause’s adoption? How much does he focus on subsequent practice? Which of these interpretive modalities do you find more persuasive? Which do you find less persuasive? Why? 3. One of the most important conclusions Judge Lucero reaches along the way is that the framework the Supreme Court articulated in the “Insular Cases,” and not the Citizenship Clause-specific ruling in Wong Kim Ark, governs this dispute. Why does he reach that conclusion? Why does Judge Bacharach disagree in his dissent? 4. Why, in Judge Lucero’s view, would it be “impracticable and anomalous” to apply the Citizenship Clause to those born in American Samoa? Why does Judge Bacharach disagree? Whose analysis do you find more convincing? Why? 5. Finally, neither Judge Lucero nor Chief Judge Tymkovich note, in their opinions, the extent to which the Citizenship Clause was meant to repudiate the Supreme Court’s infamous 1857 ruling in Dred Scott (which, among other things, had held that slaves and free Blacks could never be citizens). One of the arguments the Court had rejected was that Scott earned his freedom when he traveled with his then- owner to Minnesota —a federal territory. Is this context important to you for answering the legal issue presented in this case? Why or why not? Constitutional Law — Fall 2021 — Handout I Excerpts from Fitisemanu v. United States, 1 F.4th 862 (10th Cir. 2021) LUCERO, Senior Circuit Judge: For over a century, the land of American Samoa has been an American territory, but its people have never been considered American citizens. Plaintiffs, three citizens of American Samoa, asked the district court in Utah to upend this longstanding arrangement and declare that American Samoans have been citizens from the start. The district court agreed and so declared. Appellants, the United States federal government joined by the American Samoan government and an individual representative acting as intervenors, ask us to reverse the district court’s decision. We conclude that neither constitutional text nor Supreme Court precedent demands the district court’s interpretation of the Citizenship Clause of the Fourteenth Amendment. We instead recognize that Congress plays the preeminent role in the determination of citizenship in unincorporated territorial lands, and that the courts play but a subordinate role in the process. We further understand text, precedent, and historical practice as instructing that the prevailing circumstances in the territory be considered in determining the reach of the Citizenship Clause. It is evident that the wishes of the territory’s democratically elected representatives, who remind us that their people have not formed a consensus in favor of American citizenship and urge us not to impose citizenship on an unwilling people from a courthouse thousands of miles away, have not been taken into adequate consideration. Such consideration properly falls under the purview of Congress, a point on which we fully agree with the concurrence. These circumstances advise against the extension of birthright citizenship to American Samoa. We reverse. I American Samoa is one of several unincorporated territories of the United States. It is the only one whose inhabitants are not birthright American citizens. Congress has conferred American citizenship on the peoples of all other inhabited unincorporated territories—Puerto Rico, Guam, the U.S. Virgin Islands, and others—but not the people of American Samoa. American Samoans are instead designated by statute “nationals, but not citizens, of the United States.” As a result, American Samoans are denied the right to vote, the right to run for elective federal or state office outside American Samoa, and the right to serve on federal and state juries. They are, however, entitled to work and travel freely in the United States and receive certain advantages in the naturalization process. Plaintiffs, three American Samoans who are now residents of Utah but remain “non-citizen nationals” of the United States, contend that this arrangement violates the Citizenship Clause of the Fourteenth Amendment. We preliminarily review two topics in more depth: A) the relevant history and characteristics of American Samoa; and B) the history of American citizenship as it has been applied to American territories. 1 A American Samoa encompasses the eastern islands of an archipelago located in the South Pacific, approximately 2,500 miles due south of Hawaii. Its current population is 49,437; another 204,640 individuals of Samoan descent live in the United States. In 1900, its tribal leaders ceded sovereignty to the American government. The documents effectuating this cession did not specify how the territory would be governed, and were silent on whether American Samoans were, or would ever be, American citizens. Since then, American Samoans have owed “permanent allegiance” to the United States but have never been American citizens. [T]he people of American Samoa have maintained a traditional and distinctive way of life: the fa’a Samoa. It is this amalgam of customs and practices that Intervenors argue would be threatened if birthright citizenship were imposed. For example, the social structure of American Samoa is organized around large, extended families called ‘aiga. These families are led by matai, holders of hereditary chieftain titles. The matai regulate the village life of their ‘aiga and are the only individuals permitted to serve in the upper house of the American Samoan legislature. Land ownership is predominantly communal, with more than 90% of American Samoan land belonging to the ‘aiga rather than to any one individual. There are also racial restrictions on land ownership requiring landowners to be at least 50% American Samoan. Intervenors worry that these and other traditional elements of the American Samoan culture could run afoul of constitutional protections should the plaintiffs in this case prevail. Citizenship has been a contested issue in American Samoa since its cession to the United States. B . Though the term “citizen” was used repeatedly, the Constitution did not define its meaning. This left two competing views. According to one, national citizenship was predicated on state citizenship—a person had to be a citizen of a state in order to be a citizen of the United States. Under the contrary view, national citizenship attached to people born in the United States directly, meaning people born in the territories as the country pushed westward were American citizens. The way courts approached citizenship vacillated, with neither view becoming dominant until the Citizenship Clause ended the debate in favor of national citizenship as a standalone guarantee not requiring state citizenship. But while the legal question remained murky, one aspect of the nation’s approach to American citizenship in the territories was always clear: it was not extended by operation of the Constitution. This flexibility in the territories with regards to citizenship was but one example of the broader approach the political and judicial branches applied to the territories. “[E]arly decisions on territorial acquisition seemed to assert that whether a particular geographic location was within or without the United States was a question that had, in essence, two answers. [T]erritory could be sovereign American soil for some purposes, yet still be foreign for others.” . 2 In 1898, the United States acquired significant overseas territories in the wake of the Spanish-American War. There was quickly a practical necessity to determine the citizenship status of the inhabitants of these territories. Congress filled the void. Ever since, every extension of citizenship to inhabitants of an overseas territory has come by an act of Congress.