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People of American Samoa Aren't Fully American

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The circumstances of the birth of Republican presidential candidate Ted Cruz put constitutional citizenship into the headlines. Also in the news: A federal judge in Puerto Rico ruled last week that the U.S. Supreme Court’s gay-marriage decision doesn’t follow the flag to the island. What would happen if you mashed the two issues together, mixing birthright citizenship with the Constitution’s applicability to U.S. territories?

The answer to this otherwise random-seeming question is in fact before the Supreme Court right now. At issue is whether it’s constitutional for Congress to deny birthright citizenship to people born in American Samoa, which has been a U.S. territory since 1900. In June, a conservative panel of the U.S. Court of Appeals for the D.C. Circuit upheld the congressional rule, which uniquely applies to American Samoa and no other U.S. territory. Now the Samoan-born plaintiffs are asking the Supreme Court to review the D.C. Circuit’s decision -- and asking Congress to change the rules.

American Samoa, a group of five islands and two atolls in the South Pacific, became a U.S. possession in 1899 as the result of a treaty between Germany, the U.K and the U.S. Western Samoa, which went to Germany under the treaty, eventually became the independent country of Samoa in 1962 after many years as a protectorate of the League of Nations and then a United Nations trust territory.

The eastern part, now called American Samoa, has been part of the U.S. ever since, as an unorganized territory. The label “unorganized” means that Congress has never passed a law called an “organic act” that would function as the constitution of the territory. American Samoa has a constitution of its own, enacted in 1960 and redone in 1967. But that constitution begins by relying on the authority of Congress. The UN considers American Samoa a non-self-governing territory.

About 55,000 people live in American Samoa. Unless they become naturalized, they aren’t U.S. citizens. Their passports read, “The bearer is a U.S. national and not a U.S. citizen.”

The lawsuit, which features some plaintiffs who’ve served the U.S. in the military without ever becoming citizens, arises from the 14th Amendment, which says 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.”

There’s a Supreme Court precedent from 1898 that explains the meaning of this sentence. The amendment was intended to codify to the Constitution the old English rule of subjecthood to the crown -- known as jus soli, or the right of the soil. If you were born in the king’s dominions and had a duty of loyalty to the crown, you were a subject.

Remarkably, the D.C. Circuit didn’t apply this precedent to the Samoans’ case. Instead, persuaded by the U.S. government, a randomly drawn panel of three stalwart conservative judges -- Janice Rogers Brown, David Sentelle and Laurence Silberman -- held that the 14th Amendment doesn’t fully apply in American Samoa, the same way it doesn’t fully apply in other territories like Puerto Rico.

For good measure, the judges said it wasn’t clear that people born in American Samoa owe allegiance to the U.S.

Just about the only plausible argument in the court’s opinion was its observation that the government of American Samoa opposes citizenship for those born there. According to the court, the government is worried that if its residents become citizens, it might lead a court to invalidate the “traditional, racially-based land alienation rules” that apply there.

Concern for the self-government of indigenous first peoples is legitimate. And indeed, the American Samoan constitution doesn’t have an equal protection clause, lending some credence to the idea that at least some residents of the island don’t want to displace a traditional form of self-governance that might be discriminatory.

The trouble with this argument is that, under existing precedent, the equal protection clause of the 14th Amendment does follow the flag -- and so it should already apply in American Samoa, regardless of whether the residents are citizens. The tension between traditional self-government and constitutional equality will have to be worked out regardless of the residents’ citizenship status.

There can’t be a split between the circuit courts of appeal on this issue, because there’s only one American Samoa. Although the Supreme Court doesn’t ordinarily take cases to correct the errors of courts below, this case should be an exception. The most fundamental constitutional rights are at stake -- and the D.C. Circuit panel’s opinion almost certainly got the law wrong.

  1. This was the same principle relied upon by the Puerto Rico judge to say that Supreme Court’s gay marriage decision doesn’t apply there.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net