Robert F. Kennedy Library | Constitution Day
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In observance of the federal Constitution Day, the College of Liberal Arts & Social Sciences has put together an abbreviated history of the Constitution’s role here in Guam.
Article 4, Section 3 of the Constitution includes the “Territorial Clause" (Clause 2), which grants Congress authority to make rules for all U.S. territories and property. The scope of this clause has been debated for many years; however, both Congress and the Courts have interpreted the clause time and again to mean that Congress has plenary power over the territories.
This means Congress has authority over Guam as long as it remains a territory. Congress can enact laws that treat the territories differently than the states as long as they do not abridge the fundamental rights of the people living in Guam. Congress’ plenary power over Guam only ceases if Guam becomes a state or an independent country.
Throughout the 20th century and continuing today, a major issue for all American territories has centered on the question, "Does the Constitution follow the flag?" The following events have been influential in defining how and when the Constitution is applicable to the territories.
In a series of court cases known as the Insular Cases, the Supreme Court ruled that the territories belonged to, but were not part of, the United States. This affirmed Congress’ power over the territories as granted by the Territorial Clause and its power to determine what parts of the Constitution apply to the territories.
Unlike the states, which have the full protection of the Constitution, provisions in the Constitution and other domestic law must explicitly be applied to Guam and the U.S. territories by Congress.
The Insular Cases, namely Downes v. Bidwell (1901), defined the relationship between territories and the United States based on two doctrines:
This ruling continues to impact contemporary issues facing Guam, such as voting rights, land tenure, the rising cost of goods, and the military buildup.
The Insular Cases created a new classification of territories: unincorporated territory. Unincorporated territories belong to the United States where only certain “natural” protections of the Constitution apply. The courts opted not to define the rights that would apply to the territories, but rather rule on them as challenges came before the courts. In 1950, Congress signed the Organic Act of Guam officially making Guam an unincorporated territory of the United States.
In 2012, Arnold “Dave” Davis challenged the Guam Plebiscite Law establishing the Guam Decolonization Registry for purposes of a decolonization plebiscite. In his challenge, he argued that allowing only native inhabitants to register in the Guam Decolonization Registry was illegal and unconstitutional. Davis also claimed that the law was discriminatory and violated the Voting Rights Act of 1965.
In 2017, the District Court of Guam determined that the Guam law violated the 14th Amendment’s equal protection clause and the 15th amendment’s prohibition of racial discrimination in voting.
In 2018, Attorney Julian Aguon represented the government of Guam in an appeal before 9th Circuit Court in Hawai’i. Aguon argued that the definition of native inhabitants of Guam is a “temporal and spatial, historiographic, and geographical classification,” not a racial one. However, the 9th Circuit upheld the ruling of the District Court of Guam citing a 2014 case in the Commonwealth of the Northern Mariana Islands that determined that the right to vote is a fundamental right belonging to the people living in the territories.
Listen to Julian Aguon’s oral arguments to the 9th Circuit Court in Hawai’i.
In the words of Khirz Kahn, the Pakistani American parent of U.S. Army Captain Humayun Khan who was killed in 2004 during the Iraq War, "It is everyone's right and responsibility to read the Constitution and to exercise the responsibility of citizenship."
This responsibility includes questioning the veracity or applicability of its elementary principles. It is through these challenges that the communities throughout the United States begin to understand the potency of the U.S. Constitution.