The Green Papers: State and Local Government

FUNDAMENTAL CHARTERS

the Articles of Confederation

As early as July 1775- barely three months after the "shots heard 'round the World" which had started the American Revolution had been fired at Lexington and Concord in Middlesex County, Massachusetts- delegate Benjamin Franklin of Pennsylvania proposed to the Continental Congress a Plan of Perpetual Union for what were then still being called "the United Colonies in North America": Dr. Franklin's plan was rejected outright as being much too provocative at a time when the professed goals of the colonial side of the conflict were merely those of retaining the "rights of Englishmen" within the British Empire; establishing a form of government which, unlike those then still at work at the level of the Colony, had not been sanctioned by the British Crown and Parliament would have undermined that position.

However, less than a year later- on 7 June 1776- delegate Richard Henry Lee of Virginia introduced his resolution before the Continental Congress that "these United Colonies are, and of right ought to be, free and independent States", a motion which led directly to the Declaration of Independence- proclaimed on 2 July 1776 and formally adopted on 4 July 1776. Part of Lee's original Independence resolution also had asked "[t]hat a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation"; accordingly, on 11 June, a Committee was appointed and met- reporting out the next day the original draft of something called the "Articles of Confederation". It would be nearly a year and a half before the Articles would be approved by the Continental Congress itself and submitted to what were now 13 "free and independent States" and another three and a half years again before these Articles could be declared in force.

The introduction of the Articles of Confederation sparked debate in the Continental Congress on this "Plan of Union" until 20 August 1776, when the matter was suddenly dropped and not taken up again until 8 April 1777: on-again, off-again debate thereafter again enused before the final draft of these Articles was formally approved by the Continental Congress on 15 November 1777. 8 of the 13 States assented to the document fairly quickly as 1777 gave way to 1778 and their delegates to the Congress were ready to sign an engrossed copy of the document when it first became available on 9 July 1778 (the formal certification of a State's ratification); the delegates of 2 more States joined in this action within the ensuing month.

But 3 States- Delaware, Maryland and New Jersey- stubbornly held out, holding up implementation of a fundamental document which required that the assent of all 13 States be achieved before it could go into formal operation. New Jersey ratified it by the end of that calendar year, with Delaware following suit by the middle of the next; but this left Maryland as the lone holdout. Maryland's beef was that several States still laid claim to lands beyond the Appalachian mountain chain (the British Empire had, in 1763 [as revised in 1768], laid down a so-called "Proclamation Line" which left the lands in what was then still called "the West" to the Native American Indians [even going so far as to- in 1774- give the Ohio Valley beyond the mountains (that which later would become the "Northwest Territory") to the newly created Province of Quebec (the once- and future- British "Canada") to ensure this result]; a root cause of the American Revolution was the colonists' refusal to accept this situation. Maryland, of course, had no desire to implement the British solution to "the Indian problem"; it merely felt these western lands should be ceded by the claiming States to the control of the Continental Congress so that the land could thereafter be sold and the proceeds from the sale used to pay for the war effort (there was an inherent advantage to the colonists were this to be done, as- should the lands reserved by the British to the Indians actually be sold- any postwar claim to oversee these lands by Quebec/Canada on behalf of those whom the colonists regarded as- to use the language of the Declaration of Independence itself- "the merciless Indian Savages" would then be subject to much legal maneuvering over Title to Land, should the American Revolution ultimately be lost by the Patriot side [always a real possibility almost to the end of the conflict]).

It was not until early in 1781 that the last of the claiming States gave up its western lands to the control of the Continental Congress: once this was done, Maryland- on 1 March 1781- ratified the Articles and they could now- finally!-formally come into operation (though the Continental Congress had been informally using them as something of a guide to its power, authority and conduct since they were first submitted to the States nearly three and a half years before).

The Statehood.phtml table indicates when each of the "original 13" ratified the Articles of Confederation.

the Constitution of the United States

But the Articles proved to be an abject failure: the same requirement of assent of all 13 States that was necessary to adoption of the document itself also applied to any amendments to be added to the document. What was, after the Articles went into formal operation with Maryland's ratification on 1 March 1781, called the "Confederation Congress" had no power to tax, no clear central executive authority and no way to easily change this miserable situation. Once the Peace had been won with the signing of the Second Treaty of Paris on 3 September 1783 (the First Treaty of Paris had ended the French and Indian/Seven Years' War in 1763- ironically, it had been the British Empire's futile- and ofttimes bumbling- search for a method of using its colonies to defray its costs of those wars two decades earlier that had ultimately led to the very need for a Second Treaty of Paris) and the Independence of the United States of America had been, thereby, recognized by the Great Powers, there was no longer any consensus cause to hold the States of the Confederation together; calling the aggregation "the United States of America" was fast becoming a misuse- where not a mockery- of the term "united".

Things came to a head in the late Summer going into the Fall of 1786: back on 21 Jnauary 1786, Virginia had invited the 13 States to each send "Commissioners" (that is, delegates) to a conference in Annapolis, Md. for the purposes of discussing interState commercial issues that could not be readily addressed by a Confederation Congress hampered by the limitations of the Articles; 9 States agreed to attend (interestingly, one of the 4 which had declined was Maryland!). No sooner had the delegates from 5 of these 9 States (5 of 9 being a quorum to conduct business) arrived at Annapolis in mid-September 1786 when news began also arriving in Annapolis about the outbreak of what came to be known as "Shays' Rebellion" in western Massachusetts, the most serious eruption between debtor "localist" farmers in the frontier and creditor "cosmopolitan" merchants and bankers in the port cities up to that time. When the further news came- during the four days the Annapolis Conference met- that the rebels had been, as August had given way to September, successfully keeping the courts from functioning in the Connecticut River Valley of the Bay State, the Conference's "Commissioners" adopted a resolution suggesting the calling of a fuller "Convention"- to meet during the following May in Philadelphia- which would "take into consideration the situation of the United States" and "devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union".

The Confederation Congress followed up on 21 February 1787 with a resolution specifically authorizing the May 1787 Convention sought by the Annapolis "Commissioners" to meet "for the purpose of revising the Articles of Confederation". Of course, we all know (and there are many references to this elsewhere on this web site) that the resultant Convention went much further than merely "revising the Articles"- instead producing a whole new Federal Constitution which was adopted on 17 September 1787 and then sent on to be ratified by popular Conventions, rather than the State legislatures, in each of the "original 13" States.

The Statehood.phtml table indicates when each of the "original 13" ratified the current Constitution of the United States.

STATEHOOD

When it comes to the admission of new States to the Union, the Federal Constitution reads as follows:

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.
[Article IV, Section 3: Constitution of the United States]

Only 3 States (Kentucky, Maine and West Virginia) have been formed out of other States without first having been ceded to the United States for organization as pre-Statehood Territories; as a result, the operative passage of Article IV, Section 3 in the case of 34 of the 37 States added to the Union after the "original 13" had ratified the U.S. Constitution has simply been: New States may be admitted by the Congress into this Union- a clause that gives the Federal Government quite a bit of leeway regarding just how to go about admitting such new States.

Enabling Act

The most common method of admitting new States is for Congress to first enact what is known as an "Enabling Act" (usually once the potential State has petitioned Congress for Statehood and Congress has determined that such a State would be viable as a constituent member of the Union; but some Enabling Acts have been adopted without such petitioning) authorizing (that is, "enabling"- hence the name) a future State to begin the process of forming a State government (by drafting and ratifying a State Constitution and, thereafter, electing State officers under the terms of that document). Enabling Acts have most often been of the following two types, which- for convenience- we might call simple and compound : the simple Enabling Act merely authorizes the future State to form a State government alone, after which Congress MUST enact an Act of Admission in order for the State to then be considered a constituent State of the Union; a compound Enabling Act authorizes the State to form a State government to be followed by Admission shortly thereafter (that is, Admission as a State is an inherent part of the Enabling Act)- the State becomes a State of the Union upon some official recognition, at the Federal level, that the terms of the Enabling Act have been satisfactorily met. The compound Enabling Act has been the more commonly (as well as the more recently) used of the two types, as a casual perusal of the Constitution.phtml table will clearly show.

There has, however, been a third type of Enabling Act- which we might conveniently call the recognition type- utilized in the quest for Statehood: sometimes a future State will have an Enabling Act which simply indicates that Congress now recognizes a State government which had already been formed even before the Enabling Act itself had been adopted [in this case, what is "enabled" is not the formation of the State government itself but the Federal Government's ability to take legal cognizance of such State government]: often, this has been the result of a "wannabe"-State having had repeated petitions for Statehood rejected by Congress and, out of a kind of sheer frustration, the People of the jurisdiction goes ahead and elects a Constitutional Convention and then drafts and ratifies a potential State Constitution anyway in hopes of using the resultant document both as evidence of strong pro-Statehood sentiment and as leverage hopefully pushing Congress into eventually admitting the jurisdiction as a State. Such "grabbing the bull by the horns" is well illustrated by the case of Hawaii, where- without an Enabling Act- a State Constitution was drafted and ratified (as part of a vote approving Statehood) in 1950: after repeated failed attempts to pass a "Hawaii Statehood Bill" (really an Enabling Act of this third type), one finally passed Congress in early 1959 which allowed Hawaii to, soon thereafter, join the Union as our 50th State with its 9-year-old Constitution as the new State's fundamental charter.

It should be noted, however, that an Enabling Act is not essential for eventual Admission of State into the Union; a number of States have been admitted to the Union without first having been authorized to form a State government- or even having an already formed State government recognized- by an Enabling Act of any of the three types discussed above. These States have been admitted with only the Act of Admission itself- instead of the third, recognition type of Enabling Act- recognizing a State government already formed by these future States. It appears that the only hard and fast rule- when it comes to the Admission of new States under Article IV, Section 3, clause 1- is that at least one specific Act of Congress (whether an Enabling Act- with or without a subsequent Act of Admission [as opposed to a Joint Resolution of Congress and/or Presidential Proclamation subsequently admitting the State (see below)]- or an Act of Admission) is required at some point during the legal process leading to Statehood (thereby fulfilling the constitutional language that Congress be the admitting agent for new States)

Admission to the Union

As already noted, the usual course of action after the passage of an Enabling Act for a future State is that jurisdiction's drafting of a State Constitution and the election of State officers under that Constitution so that there will be people already in place to act as the State's government the minute the State is admitted to the Union. In the case of the simple Enabling Act (that only authorizing the future State to form a State government alone), Congress then decides whether or not to accept or reject the resultant State government and, if the new State's Constitution is acceptable to Congress (under the constitutional requirement that [t]he United States shall guarantee to every State in this Union a Republican Form of Government [Article IV, Section 4, clause 1]), the Congress- again, as already noted above- MUST indicate such acceptance via a specific Act of Congress, known as an Act of Admission, upon which the jurisdiction in question becomes one of the constituent States of the Union.

However, if the Enabling Act was of the compound type (that in which a future State is not only authorized to form a State government but where the condition of eventual Admission is also a given [that is, not dependent on a subsequent specific Act of Admission]), then only a mere statement of the fact that the Federal Government has accepted that the requirements for Admission- as stated in such a compound Enabling Act- have been fulfilled need be made in order for a State to be declared as having been admitted to the Union: in the earlier days of the Republic, this was most often done by a Joint Resolution of Congress but, beginning primarily during the years immediately following the Civil War, the Joint Resolution declaring a State's admission has more and more been replaced by the issuance of a Proclamation of the President of the United States that the terms of a compound Enabling Act have been fulfilled and that the State, therefore, has been admitted to the Union.

The same method of admission of a State (through either a Joint Resolution or a Presidential Proclamation) also comes into play in cases where the consideration of the admission of a State has come about as a result of an Enabling Act of the recognition type (that in which Congress recognizes that a jurisdiction has already formed a State government), except that- while there is always a time lapse between the adoption of a compound Enabling Act and the subsequent actual declaration of Admission to Statehood (by whichever method)- an Enabling Act of the recognition type could conceivably admit the State forthwith (that is, the recognition type Enabling Act would itself be tantamount to an Act of Admission: this was case, for example, with both Arkansas in 1836 and Florida in 1845).

Congress and the President (who must sign either Acts of Admission or Joint Resolutions declaring Admission) reserve the right to place conditions upon Admission. After the potential State has formed a State government under any of the three types of Enabling Act discussed herein, Congress may- as part of its Act of Admission or Joint Resolution- order that the People of the State alter their new Constitution or agree to certain additional terms respecting their new relationship to the Federal Government before Admission can be finalized (in such cases, it has been common to leave it to the President to issue a Proclamation declaring that the terms thus set by Congress have been satisfactorily met and that, as a result, the State has been admitted to the Union). Likewise, a President himself retains the power to veto an Act of Admission or a Joint Resolution of Congress and- assuming the veto is not subsequently overridden by Congress- the future State must answer the President's objections before Admission can be finalized.

For example, such was the case with both Arizona and New Mexico in 1911: after both Territories had drafted State Constitutions and elected State governments under the terms of a compound Enabling Act- applying to both future States- adopted the year before, Congress had passed a Joint Resolution declaring that the terms of the Enabling Act had been fulfilled in both jurisdictions and that they both were, thus, admitted to the Union as States. However, President William Howard Taft vetoed this Joint Resolution on grounds of his objection to certain provisions in both new State Constitutions, after which Congress adopted a second Joint Resolution requiring New Mexico to alter its new Constitution as a requirement for Admission (to be certified by Presidential Proclamation once the alteration had been made) but not requiring Arizona to alter its Constitution (had this Joint Resolution been signed "as is" by President Taft, Arizona would have been admitted as the 47th State, ahead of New Mexico, rather than the other way round): President Taft accepted the Joint Resolution as regarded the conditions for Admission of New Mexico but he vetoed a second time the conditionless Admission of Arizona. As a result, both Territories had to first remove offending provisions from their new Constitutions before becoming States and, after they each had done so, President Taft- by separate Presidential Proclamations issued early in 1912- eventually declared each of them admitted as States of the Union, in the order New Mexico-Arizona (an order solely due to the timing of the reception by the White House of official certifications of acceptance of the required changes by popular vote in each Territory)- which is why Arizona came in as the 48th State and not the 47th.

TERRITORIES

In order to understand the development and position of the Territories- that is, those political jurisdictions under United States control that are not States of the Union- in the American System, it might be a wise thing to take a quick look at the hierarchy of colonies and dominions once used by the British Empire and which continues to be used- in a limited fashion- in relation to the Commonwealth of Nations to this day and then, from this, fashion an analogy to the position of Territories in the American System which owes much to its British roots.

In the British colonial system, there have been the following levels (from least self-governing to most autonomous):

1. the Crown Colony- in which the Governor would be solely responsible to the British Crown as would be his colonial Ministers (meaning Council and Judiciary: in the British system as it existed at the time of the American Revolution, the Judiciary were considered to be as much "Ministers of the Crown" as those serving in the Cabinet under the Prime Minister responsible to Parliament; the same ministerial system was applied in miniature to British colonies); in a Crown Colony, there would be no legislative assembly representing the political will of the colonists.

2. Representative Government- in which the Governor and his colonial Ministers would be as in the Crown Colony, solely responsible to the British Crown, but in which there would also be a legislative assembly representing the political will of the colonists (early on, of course, "colonists" meant white colonists-- the original impetus for this hierarchy of British territories, dependencies and possessions was to preserve the "rights of Englishmen" for those who had "transplanted" to the colony from the "home island": native peoples would not have been represented in any event; toward the end of the shelf-life of the British Empire as it evolved into the Commonwealth of Nations- particularly in the period after World War II, it was the native population that came to be represented more and more in colonial legislative assemblies [with notable exceptions such as apartheid-era South Africa] but this was a fairly late development in an era of decolonization preparatory to these colonies eventually achieving independence, something that would have been inconceivable well into the early 20th Century.)

3. Responsible Government- in which the Governor and many of his colonial Ministers- including the 'Chief Minister' (the colonial analogy to the Prime Minister on the "home island")- were still solely responsible to the British Crown but at least some of the colonial Ministers were responsible to the legislative assembly representing the political will of the colonists (with the earlier caveat that these colonists did not necessarily include native peoples until much later in the evolution of the system)

4. Internal Self-Government- in which the Governor alone was still responsible to the British Crown but all the colonial Ministers- including the 'Chief Minister'- were solely responsible to the legislative assembly representing the political will of the colonists.

5. Dominion status- in which, while a Governor-General ostensibly still responsible to the British Crown was appointed, for all practical purposes the colony was fully autonomous where not practically an independent Nation-State. Nowadays, what once were "dominions" are known, rather, as "Queen's Realms of the Commonwealth [of Nations]" and the Governor-General is as much a colonist as the dominion's Ministers and the members of the legislative body.

If we apply the above British colonial system to the 13 American colonies that eventually became States as a result of the American Revolution on the eve of that very Revolution, it will be noted that the two Charter- or Corporate- Colonies (Connecticut and Rhode Island) had "internal self-government" (type 4: treating the Governor elected by the colonists in those two colonies as the equivalent of the 'Chief Minister') and that the remaining 11 colonies- all Royal Provinces by 1774- had "responsible government" (type 3: the Governor being a Crown appointee but his Ministers [the 'Council' or 'Assistants'] being, at least in part, chosen from among the colonists). It should also be noted that the "Intolerable Acts" passed by the British Parliament to punish the colony responsible for the so-called "Boston Tea Party", the very acts which led to the beginning of the American Revolution in Massachusetts, were an attempt to replace that colony's "responsible government" with "representative government" (type 2), a significant demotion!

When the United States of America was recognized as an independent Nation-State under the Second Treaty of Paris not all that long after its consitutent States with western land claims began to cede the land which would soon become the new Nation's first Territory- that "Northwest of the River Ohio", the young Republic suddenly found itself with its own "colonies": the role of the States of the one-time colonials was now reversed- within less than a generation, their new Confederation (soon to become a stronger federation- that "more perfect Union" the Framers of the Constitution proclaimed) was now a "mother country" sending her own "transplants" into lands heretofore largely unsettled by whites; the battles the British would continue to have with native peoples throughout their Empire would now have their analogy in the relations between the Americans and the Native American Indians: the Americans' solutions to the practical political problems of "Territorial status" (really just another form of the "colonial status" the States had just thrown off) would be a mirror image of those British colonies would continue to face over the next two centuries.

Organized versus Unorganized

Early on, the American Territorial system made clear two things: first, that- unlike its relationship with its constituent States- the Federal Government would have a very different relationship with its Territories; the relationship between the United States and its Territories would not be at all federal but, rather, that of a Unitary state (that is, when Congress set up and then governed Territories, the relationship involved was much like that between a State and its Counties- both Territories and Counties alike were created for the convenience and benefit of the higher Sovereignty). Of course, the Americans made it clear from the get-go (with the Northwest Ordinance of 1787) that they would avoid at least some of the mistakes the British Empire had made in relation to them prior to the American Revolution: first of all, it was clear that Territories would have the future opportunity to be divided into- or become themselves- States of the Union equal in status to the "original 13"; secondly, once a Territory was organized, it would have representation (though no vote) in the American "Parliament"- Congress!

Territories could be either "Organized" or "Unorganized": if unorganized, it would be the equivalent of a Crown Colony (type 1 of the British colonial system); if organized, it would be the equivalent of either Representative (type 2) or Responsible Government (type 3)- depending on the actual terms of the Organic Act providing for Territorial government adopted by Congress. In order to become a State, a Territory had to, first, become organized in order for the steps leading to Statehood outlined above to then take shape in that future State; there was one other thing: an organized Territory was clearly part of the United States and when- to take just one example- the 14th Amendment defined a U.S. Citizen as one "born or naturalized in the United States", it meant that anyone born in an organized Territory was also a U.S. Citizen; unorganized Territories were, perhaps, a whole other matter- Indian Territory, for example, taking up most of what is now the State of Oklahoma, was never considered "organized" (and, in fact, only became a State when half of it was made a separate- but organized- Oklahoma Territory into which Indian Territory would eventually itself be subsumed) and those who resided therein were not Citizens of the United States. But, all in all, the distinction was something of a loose one- if a Territory did not have self-government, it was unorganized: if it did, it was organized; and a Territory had to first be organized to ever hope to eventually achieve Statehood.

Incorporated versus Unincorporated

All this changed just after the turn of the last Century, thanks to one of the more confusing series of decisions ever issued by the United States Supreme Court in what came to be known as the Insular Cases: these were three cases argued and then decided together in which, at issue, was the relationship with the Federal Government of the newly acquired territories so recently attached to the United States partially as the result of the Spanish-American War (Cuba- if only temporarily, the Philippines- for a somewhat longer period, Guam and Puerto Rico becoming part of America's growing "empire" directly from that War; Hawaii being an unrelated acquisition at around the same time). All of these new territories had in common the fact that they were all islands (or groups of islands, in the case of the Philippines- hence the use of the term "insular" to describe the cases) and, more importantly, so clearly "foreign" prior to their annexation; there could be no plausible argument that their inhabitants shared the constant search for "the Rights of Englishmen" in Americanized form that had hitherto defined the relationship of Territories to the United States and their eventually being seen as future States of the Union.

These Insular Cases were all decided on 27 May 1901: the first two cases, DeLima v. Bidwell [182 U.S. 1] and Dooley v. United States [182 U.S. 222] posed the question: when the U.S. acquired Puerto Rico, did that island cease to be a "foreign country" within the meaning of existing Federal tariff laws? The Court answered "yes" in what were a 6-3 and a 5-4 decision, respectively: in DeLima, it ruled that imports from Puerto Rico were no longer subject to a tariff and, in Dooley, it made the same ruling as regards exports to Puerto Rico. But the final case, Downes v. Bidwell posed an even dicier question: was the island covered by the constitutional requirement [Article I, Section 8, clause 1] that "all Duties, Imposts and Excises shall be uniform throughout the United States"? Put another way: did the U.S. Constitution automatically apply to the island of Puerto Rico once it had- as the Court had determined in the two earlier cases that day- ceased to be a "foreign country"?

The reason that the decision was confusing was that one group of 4 Justices- Justices Gray, McKenna, Shiras and White (the dissenters in Dooley; all but Gray dissenting in DeLima) logically opined that Congress is not required to make territory an inherent part of the United States- and, thus, subject to the Constitution- immediately upon acquiring it and can, at any time later, determine the proper disposition of such territory (they cited Article IV, Section 3, clause 2- which reads: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State- as giving Congress rather unfettered power to classify the non-States pretty much as it saw fit), while another group of 4 Justices: Chief Justice Fuller and Justices Brewer, Harlan and Peckham (the dissenters in Downes) just as logically opined that "the Constitution follows the flag" (that is, as soon as a newly acquired territory such as Puerto Rico was so acquired, it became an inherent part of the United States). The two views were incompatible, but made perfect sense in and of themselves: either Puerto Rico- while ceasing to be a "foreign country"- was automatically a part of the United States as a result (the Fuller/Brewer/Harlan/Peckham argument) or had to wait for Congress to make it part of the United States or not at its own discretion with the proviso that, should Congress later make Puerto Rico a part of the United States, the Constitution would then apply automatically- just not at the moment before Congress had so acted (the Gray/McKenna/Shiras/White position)

The problem was that there was a 9th Justice, Justice Brown, who ended up writing the controlling opinion in all three Insular Cases only because he was the 5th vote in each of the 5-4 decisions; but his opinion was actually one on the extreme- for he argued that the Federal Constitution could only automatically apply to States and could never apply to Territories automatically (put another way: Brown argued that Congress did not have the Power at all to make Territories- even those that were continental and contiguous [and keep in mind that there were 4 of these- Arizona, Indian Territory, New Mexico and Oklahoma- still in existence in 1901]- an inherent part of the United States!)

<<It is sufficient to observe in relation to [the Articles of Confederation, the Northwest Ordinance of 1787 and the Constitution] that it can nowhere be inferred that the territories were considered a part of the United States. The Constitution was created by the people of the United States, as a union of States, to be governed solely by representatives of the States [italics as in the original opinion]... In short, the Constitution deals with States, their people and their representatives [Justice Brown here cites language such as that in the 13th Amendment, which states: Neither Slavery nor Involuntary Servitude... shall exist within the United States, or any place subject to their jurisdiction as showing that besides "the United States", there were other places "subject to their jurisdiction" not part of the United States]>>
("conclusion and judgment of the Court" by Justice Brown in Downes v. Bidwell [182 U.S. 244])

The Downes opinion threw everything into a bit of a tizzy for the time being, as it now meant that- unless an Act of Congress specifically extended a Constitutional Right to Arizona, New Mexico and Oklahoma (let alone Guam, Hawaii or Puerto Rico)- it did not apply therein; moreover, what Congress could give by mere statute, Congress could so easily take away (was there to be less free speech or free exercise of religion in Arizona Territory than in North Dakota if Congress did not specifically grant it? Did a person have less of a right to life or liberty in Oklahoma Territory than he or she did in Nebraska absent a specific Congressional fiat?)

It was in the 1904 case of Dorr v. United States that the views of Gray, McKenna, Shiras and White would finally prevail (even though Justices Gray and Shiras had been replaced by Justices Holmes and Day, respectively, by then). Justice Day wrote the opinion of the Court in a case in which trial by jury was not extended to the Philippines absent an Act of Congress doing so on the grounds that there were two classes of Territories- those inherently part of the United States, in which the Constitution prevailed automatically, and those not part of the United States where the Constitution did not automatically prevail (though Congress could, of course, always change a Territory's status).

Gone was the old distinction between the "organized" and "unorganized"- replaced by a distinction between those Territories incorporated into the United States and those that were unincorporated (that is, not inherently part of the United States): Arizona, New Mexico and Oklahoma- as well as the District of Columbia (though D.C. also has special status due to its being specifically mentioned as "the District constituting the Seat of Government" in various clauses of the Constitution)- were the former in 1904; all other Territories (including Indian Territory- as well as, at the time, Alaska and Hawaii [both of which would later become incorporated well prior to Statehood], the Philippines and Puerto Rico) were unincorporated.

According to the Opinion of the Court in Dorr, in both classes of U.S. Territory, "fundamental rights" (what we would call substantive rights or civil liberties: say, freedom of the press or the right to acquire and enjoy property and the like- the "immunities" of U.S. Citizenship) under the Constitution automatically apply; however, "formal rights" (what we might call procedural rights or civil rights, as opposed to civil liberties: the right to have a grand jury hearing prior to indictment, for example- the "privileges" of U.S. Citizenship) under the Constitution only automatically apply to incorporated Territories; those in unincorporated Territories would only gain such formal/procedural protections by specific Act of Congress (which Congress could later rescind by simple statute) extending same to such a class of Territory.

Today, there is only one incorporated U.S. Territory, the District of Columbia; all the other self-governing Territories- American Samoa, Guam and the U.S. Virgin Islands- are unincorporated; where the 14th Amendment states All persons born or naturalized in the United States... are citizens of the United States, "the United States" includes Washington, D.C. and, so, a person born in Our Nation's Capital is automatically- constitutionally- a U.S. Citizen; if, on the other hand, someone born in the Virgin Islands is a U.S. Citizen, it is only because Congress conferred U.S. Citizenship on those in that unincorporated Territory by specific statute. Though not born in a State of the Union, the native of D.C. can, nonetheless, constitutionally assert his American citizenship; the native of St. Croix or St. Thomas could, theoretically, have his or her American citizenship taken away with a simple repeal of the granting legislation born of a political whim sweeping the Federal Government.

associated Commonwealths

Two territories- which would otherwise be unincorporated Territories (and, in fact, can still be considered "unincorporated Territories" for purposes of the discussion in the previous section of this piece)- have achieved a kind of "quasi-Independence" as associated "Commonwealths". They are Puerto Rico, which accepted this status in 1952, and the Northern Marianas, which attained this status in 1978. Unlike their sister unincorporated Territories, which clearly are dependencies of the United States, these two are somewhere in that gray area between a Territory and an Independent Nation: in effect, they are legally Nation-States without the Independence recognized by International Law.

An incorporated Territory (such as D.C.) could conceivably achieve Statehood (no matter how likely or unlikely that prospect might be right now) through simply following the steps toward Statehood outlined much earlier in this piece; an unincorporated Territory is clearly not going to ever achieve Statehood unless it should first be reclassified as an incorporated Territory. However, an associated Commonwealth could also achieve Statehood as easily as an incorporated Territory like D.C. someday could; on the other hand, unlike either an incorporated or unincorporated Territory, an associated Commonwealth could also someday achieve Independence from the United States. In a way, the associated Commonwealths of Puerto Rico and the Northern Marianas are equivalent to somewhere between Internal Self-Government (type 4) and Dominion status (type 5) in the British hierarchy of colonial status we have been using as an analogy to the American Territorial System herein.

State and Local Government Outline

Created Sat 11 Aug 2001. Modified .