Seminar: United States Territorial Possessions

LAW 6936 (2 credits)
Professor Pedro A. Malavet

Notes Part 3

Leibowitz, Chapter 3: Alternative Legal Structures: Statehood
Leibowitz, Chapter 4: Alternative Legal Structures: Special Schemes
Leibowitz, Chapter 5: Conclusions
Handout 1, pages 67-122

Leibowitz, Chapter 3: Alternative Legal Structures: Statehood

US Const. Art. IV, Sec. 3, Cl 1: Admission of new states
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Statehood Conditions
The U.S. Supreme Court has ruled that Congress has the power to impose conditions precedent to admission into statehood.
Coyle v. Smith, 221 U.S. 559 (1911)
“The constitutional provisions concerning admission of new states is not a mandate, but power to be exercised with discretion.”

Statehood Conditions
However, once the State is admitted, Congress can no longer enforce those conditions.
Coyle v. Smith, 221 U.S. 559 (1911)
For example, after becoming a state, Oklahoma legislature could change location of its capital, despite congressional statehood condition that it be located elsewhere.

Statehood “Requirements”
that the inhabitants of the proposed new State are imbued with and sympathetic toward the principles of democracy as exemplified in the American form of government;
that a majority of the electorate desire statehood; and
that the proposed new State has sufficient population and resources to support State government and to provide its share of the cost of the Federal government.

“First. That perfect toleration of religious sentiment shall be secured... Provided that polygamous or plural marriages are forever prohibited.”
Utah & Oklahoma enabling act
Was an issue in Utah, Oklahoma, Arizona and New Mexico

Language, p. 71
Generally English
Publication of laws and conduct of government business
Language of education
New Mexico and Louisiana, after admission, have allowed Spanish and French, respectively, to be used

Voting rights act
In 1975, non-English language balloting added to the Voting Rights Act of 1965

Language: Puerto Rico
The policy foundered because of the absence of a sufficient number of English teachers,
the unreasonableness of the goal of bilingualism or conversion of Spanish to English, and,
Puerto Rican nationalism which converted the question of whether Puerto Rico would accept the imposition of English as the language of instruction to one of sovereign prerogative. P. 73

A majority of the electorate desires it
Of the 37 States admitted by Congress into the Union, only 17 held status referenda or plebiscites to determine popular support.
Of those 17 areas, ten held one referendum, while the remaining seven sponsored multiple referenda ranging in number from six electoral inquiries in the case of Maine, to three in the case of Alaska and two in the statehood battle of Hawaii.

Political Decision
EDITORIAL NOTE: This previous paragraph is a profoundly important statement. It is important to understand that the ultimate decision on status belongs to the U.S. Congress and it makes its decision based on the interests and values of the elected legislators (by definition representatives of jurisdictions other than the territories). It is a fundamentally political process, determined by the existing states and their federal elected officials.

Plebiscite Votes
Note that statehood wins by wider margins when it is granted
Admission enabling legislation requires a state constitutional convention

Population and Territory
It should be noted that Alaska’s population at the time of Statehood roughly approximates the size of Guam and the Virgin Islands today.

Population at Admission

Economic Objections
additional expenses and taxes would bring the economic collapse of the new State;
Argument raised in the statehood battles of Ohio, Indiana, Illinois, Wisconsin, Iowa, Oregon, Nevada, Nebraska, Montana, Washington, the Dakotas, New Mexico, Alaska and Hawaii.

Economic Objections
the State would not be able to sustain itself for lack of natural resources;
Argument raised in the statehood struggles of Maine, Florida, New Mexico, and Arizona.

Economic Objections
the aspiring territory would not qualify for admission because of its undeveloped economy;
Argument raised against Arkansas, Michigan, Florida, New Mexico, Arizona, Alabama and Alaska.

the widespread poverty prevalent in the territory would impede its admission; and,
Argument raised against Florida and Michigan.

Economic Objections
finally, statehood would be too costly for American taxpayers since as a territory the area’s costs had been defrayed largely by Federal funds.
Argument raised against Alaska.

Economic Transition after Statehood
Two sections (in some cases more) of each township were granted for schools.
Land for a state university. In addition, under the Morrill Land Grant Act of July 2, 1862, 30,000 acres per Congressman were granted to the states. Money earned from the grant was to constitute a perpetual fund, the interest from which was to be used for at least one university emphasizing agriculture and the mechanic arts.

Economic Transition after Statehood
Land for the erection of public buildings (including hospitals, welfare institutions, and penitentiaries).
Grants of mineral land in the state.
Five percent of the net proceeds of public lands sold by the Congress for internal public improvements.

Political Representation
Two senators
One congressman for every 500K

Federal income taxation
You cannot discriminate in taxation among the states

Leibowitz, Chapter 4: Alternative Legal Structures: Special Schemes

Chapter 4
Geographic Location

Communal and racial restrictions on land ownership are common in the Pacific
Despite recent judicial challenges to the racial aspects of the communal land structure and some erosion of the feudal family structure in Samoa, 93% of the land has remained communally owned and reserved for Samoans.
Some immigration issues, but mostly in the Pacific as well

Geographic Location
The U.S. territories are frequently treated as not part of the United States and, for all territories except Puerto Rico, not within the customs area of the United States.

Territorial Distinctions
1984 the Office of the Special Trade Representative decided to count Guam and the Northern Marianas as foreign, and imposed quotas against them (coupling them with Korea, Taiwan and the People’s Republic of China) in order to protect “domestic” producers.

The question(s) of Race
It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws and customs of the people, and from differences of soil, climate and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native Indians.

Downes v. Bidwell.
“Territory” vs. Race?
If the category is racial, is it not a “suspect” category?
If the category is “territorial” a whole other constitutional scheme applies
Focus on territory rather than citizenship

Leibowitz, Chapter 5: Conclusions

As I mentioned in class, I think that Leibowitz makes some interesting and just points, but I am simply do not see any legal compulsion to make such things happen, and the political process is set up to serve the states, and not the territorial possessions.

The need, then, is for a consistent policy at the Congressional and Administration level.
Is this really possible, given the system of electing our political branches of government?

Need to limit federal power?
Again, is this possible as a matter of politics?
I am NOT using the word politics as a bad word, I merely mean the political process of electing officials and giving them discretion to do their job.