The US Constitution does not fully apply in the territories. With one exception: The uninhabited Palmyra Atoll. What is the history behind this? Also, Is it true that if a foreigner gives birth there, the child would automatically be a US citizen?
What does it mean to say that the Constitution does not apply to US territories? Except for the parts about Statehood and representation in Congress, what doesn’t apply?
And yes, being born on US soil makes you a US citizen.
Some interesting info on the Wiki page:
(Bolding mine)
I don’t know enough about this constitutional principle to do a good job summarizing it, but you could look at the wiki article on the Insular Cases for a good explanation:
Okay. I was confused. If I understand your question now, you’re asking about incorporated territory (Palmyra Atoll, and formerly Hawaii, etc.) versus unincorporated territory (like the Philippines were, and Puerto Rico still technically is). The latter was a sort of fig leaf used by the government to excuse not granting citizenship to the locals whose territory we took over. It was territory “owned” by the US, not “part of” the US. I don’t quite get the distinction either, or how it was chosen (except in the past I think it was to keep scary brown foreigners from becoming citizens).
It isn’t so cut and dried, though. See this quote from the article about Puerto Rico:
There was a real distinction for a long time. Things like the Louisiana purchase land was incorporated territory after we both it from Napoleon. It was viewed as ours permanently we just hadn’t gotten around to organizing and admitting states into the union using the land. When we started conquering territory “unincorporated”
status let us effectively treat them as de facto colonies including things like using differing tax schemes. We couldn’t very well let taxation without representation stand without creating a different legal status to allow it. 
It would appear that this is due to the fact that Palmyra was part of the incorporated territory of Hawaii (preceding the Insular Cases that established unincorporated status for other territories), but was excluded from the state boundaries and retained as federal territory when Hawaii gained statehood in 1959. This could have been due to the strategic value of the island.
CGP Grey’s dissertation on the American Empire Including how Palmyra, American Samoa and Puerto Rico seem to be all checked in the wrong columns.
As **Colibri **states, Palmyra Attoll was part of the Kingdom then later Incorporated Territory of Hawaii (though US sailors had claimed it at one time, the Kamehamehas brought it under their crown) but when Hawaii was admitted as a State it was not included in the defined territory of the new state because the Federal Government at the time wanted to make unrestricted use of that property for their own purposes, and therefore stayed in this anomalous condition.
The bit about constitutional application: in incorporated territory, the US Constitution and everything connected with it applies automatically and fully ex proprio vigore. In the Unincorporateds OTOH part of the notion is that only “fundamental” parts (which, it’s up to the court, natch) do so and anything else applies because/if the Congress or the Courts ruled it does and to the extent they say it does. e.g. a UT must be explicitly declared by Act of Congress to be US Home Soil for purposes of birthright citizenship.
However the quoted reference is to just one opinion from one District-level court that did not make it on appeal based on other criteria IIRC. Meanwhile SCOTUS has as late as this year refused to backtrack on the unincorporated territory doctrine.
But yes, Dr. Cube is right, the doctrine was an act of legislation-from-the-bench to justify the USA having acquired a colonial empire and running it White-Man’s-Burden style, without calling it that.
Prior to Downes v. Bidwell (1902), the Territories came in two flavors: Unorganized meaning just land claimed or occupied and managed if at all by executive action, and Organized which meant an Act of Congress created the structure of a civil body politic (or, later, authorized the constitution thereof)(*). However, prior to 1898, the presumption, dating all the way back to the Northwest Ordinance, was that once acquired, territories first unorganized then organized were integral parts of the nation, and the communities (of free white people, of course) therein could be considered for statehood once populated and developed enough.
Fast forward to 1898 and the Spanish American War and you’ve got some new territorial acquisitions… that the US Establishment at the time ***wanted ***to avoid grooming for admission. The new territories rather than being open for White Anglo settlement were quite full of “scary brown” mixed-race wrong-religion non-English-speakers who already had different political and social institutions. That, and commercial interests stateside wanted to be able to have an advantage in deals involving these isles that they would not have if you had to respect all existing provisions about doing business within US domestic jurisdiction.
(*This is why Samoa is legally “Unorganized” – even though it HAS a fully functional civil government, that was not organized by Congress but through executive actions and local acts)
So the Fuller SCOTUS pulls out of their robes the doctrine of “Unincorporation”, essentially a separate-but-equal(wink,wink,nod,nod) classification for polities.* “Belonging to, but not a part of [sub](except when it suits us, of course)[/sub]”* Just to rub it in, the Taft Court in Balzac v. Porto Rico in 1920 found that incorporation could not be presumed merely because the territory’s dwellers gained citizenship (or, inclusion in the Customs Zone and coastwise shipping, or birthright, or elective Home Rule, or Article III Federal Courts, or … you see the pattern. It’s Zeno’s Annexation. We asymptotically approach being incorporated in every practical aspect but name, but Congress remains not legally bound to groom us for it, nor for independence).
Right. People presumed John McCain was a natural born citizen by virtue of being born in the US-administered Canal Zone, but the Zone was not incorporated and being born there did not confer birthright citizenship. McCain’s citizenship was based on being born to US-citizen parents. (However, due to a peculiar loophole applying only to the Canal Zone, he was not actually a citizen at birth but became one when the law was amended shortly afterward.)
One of the “Insular Cases” has the interesting title Fourteen Diamond Rings v. United States. The rings were purchased by a U.S. soldier in the Phillipines after a treaty of cession was signed by Spain. When the soldier came home, the rings were seized by the U.S. for failure to pay customs duty. The fourteen rings sued, arguing that they were not from a “foreign country” so not subject to duty. This principle had already been affirmed in the case of Porto Rico by another Insular case: DeLima Sugar Importing Company v. George Bidwell (New York City collector of customs).
The United States argued that the Philippines were not permanently annexed nor its inhabitants given U.S. citizenship and, moreover, they were fighting for independence. But this was rebutted:
[QUOTE=Melville Fuller, Chief Justice of SCOTUS]
It is further contended that a distinction exists in that, while complete possession of Porto Rico was taken by the United States, this was not so as to the Philippines, because of the armed resistance of the native inhabitants to a greater or less extent.
We must decline to assume that the government wishes thus to disparage the title of the United States, or to place itself in the position of waging a war of conquest.
[/QUOTE]
Judgment in favor of the Fourteen Diamond Rings.
Seems that it was carved off of Hawaii because of it’s potential for nuclear testing, and it was also considered as a storage point for spent Nuclear fuel.
From wiki:
"In 1962, the Department of Defense used Palmyra as an observation site during several high-altitude nuclear weapons tests high above Johnston Atoll. "
“In early 1979, the US government began exploring the idea of storing nuclear waste on remote Pacific islands, like Palmyra.”
So they didn’t want the Hawaiian state government to be able to protest about any potential nuclear usage, and there was no point in changing it’s status from incorporated to unincorporated, since only military personnel were going to be there anyway. That’s how you end up with the only incorporated unorganised territory.
Fascinating post JRDelerious! I was hoping you’d comment.
What about the Q in the OP about the birth of a child to a non-national there?
Could some company organize boat tours there that would sneak in as a woman is about to give birth, have the baby on the island and take off with new US citizen in hand?
(Assuming that some sort of proof of place of birth is doable.)
On Palmyra, yes. It is “incorporated”, so exactly the same legally as say, the Alaska territory was.
Practically, though, like you said, wouldn’t you need some sort of proof that you were born there to successfully claim citizenship? Being an uninhabited and unorganized island would make that difficult. There’s nobody there to issue a birth certificate. I suppose the captain of whatever vessel took you there could testify on your behalf. It’s still not as easy as flying into the US proper on a tourist visa and giving birth in an American hospital.
Since as an incorporated territory all provisions of the US Constitution apply, including the 14th Amendment, presumably such a child would automatically be a US citizen.
If possible it would be completely impractical. Palmyra is very remote, being 1,000 miles from Hawaii. That would be one of the most expensive ways to gain US citizenship I can imagine.
There are staff and researchers for the Wildlife Refuge on the island. However, private vessels need prior approval and a permit to visit.
Notice the entire absence of any sense of irony regarding that the United States government just HAD waged a war of conquest and even admitted they were not finished mopping up. But yes, this and DeLima v. Bidwell were examples of parts of the US government structure (regional customs inspectors) deciding to arbitrarily treat the UT’s as “foreign” when it suited them (for revenue purposes) and the Court saying um, no, we *own *these places we are not merely occupying them.
And if it became a problem congress could pass an act declaring palmyra to be an unincorporated territory. Problem solved.