William & Mary Bill of Rights Journal
Abstract
This Note will focus on the Supreme Court’s decisions in the Insular Cases to demonstrate the origins of denying jus soli citizenship to those born in unincorporated territories and to analyze its direct contradiction to the Fourteenth Amendment and other Supreme Court decisions. It will argue that the Court’s decisions in the Insular Cases were influenced by colonial rule and rooted in racism. Furthermore, this Note will argue that because of these influences, the continued application of the Insular Cases by Congress and the Supreme Court to deny constitutional rights for U.S. nationals and citizens born in unincorporated territories violates the Due Process Clause of the Fifth Amendment.
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Part I of this Note will provide historical and legal background through a discussion of the context surrounding the Insular Cases and the colonization of American Samoa. Part II will discuss recent applications of the Insular Cases and argue that the decisions made in the Insular Cases have been consistently applied to deny the constitutional rights of U.S. nationals and citizens born in unincorporated territories in a manner that violates the Constitution and effectively perpetuates U.S. colonial rule in the twenty-first century. Part III will argue that to end the arbitrary denial of constitutional rights and U.S. colonial rule over unincorporated territories, unincorporated territories should be granted a degree of “tribal sovereignty.” Part IV will address counterarguments arising from the arguments made throughout this Note and its proposed solution.
This abstract has been taken from the author's introduction.