This Note argues that the Territories must be granted statehood consistent with the equal footing doctrine. This thesis does not challenge Congress’s power to acquire or govern territory, or its constitutional authority to admit (and place reasonable conditions on the admission of) territory into the Union as states. These matters have long been settled through constitutional practice. Neither does this thesis suggest that acquired territory must be immediately annexed into the Union, since there are valid reasons to delay such a decision. Instead, the claim is that permanently inhabited territories that have longstanding, constitutionally significant relationships with the United States must eventually be admitted as states.
The starting point is with the Insular Cases because these decisions allow the judicial and political branches to avoid discharging their respective constitutional obligations to American citizens. As this Note demonstrates, the Insular Cases represent a blatant manipulation of constitutional law and must be disqualified when considered in their proper context within the longstanding legislative practice of acquiring territory and admitting states. This practice will be organized under the framework of constitutional liquidation, which uses legislative practice as an interpretative modality for vague or ambiguous constitutional provisions.
This Note proceeds as follows. Part I briefly introduces the Insular Cases in their historical context and examines the doctrine’s legal development. Part II uses Professor Baude’s conception of constitutional liquidation to frame and analyze the historical practice of admission that preceded and followed the Insular Cases. This Section provides a comprehensive survey of state admission so as to clarify the relevant history surrounding the decision to expand the Union. Such a survey is necessary because commentators and judges often overlook or misrepresent this practice. For example, in Vaello Madero, Justice Kavanaugh tersely dismissed the complex history of the Territories, merely stating that “various historical and policy reasons” justify differential treatment between the states and the Territories under the widely criticized Insular Cases doctrine. Part III advances a legislative proposal granting statehood to the Territories. Specifically, this Note proposes that Congress enact a bill analogous to the War Powers Resolution, affording statehood to the Territories unless Congress affirmatively votes to delay admission. Finally, this Note briefly concludes.
Joshua S. Ebiner,
Democracy's Forgotten Possessions: U.S. Territories' Right to Statehood Through Constitutional Liquidation,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol98/iss2/7