Legal Commentary

Thanks to Dan and Prawfsblawg for letting me stay a little while longer. I have enjoyed blogging about critical race theory, immigration and other law-related matters (here and here).  I look forward to blogging some more about race and immigration law as well as my research and writing projects on property rights and citizenship.    

To begin, I am currently writing a law review article that focuses on the rights of persons who live in the former and current U.S. territories, particularly regarding the nature of their citizenship. I have a draft of a paper, "Examining Birthright Citizenship in the U.S. Territories," (I will post on SSRN at some point) which explores claims by individuals that they were U.S. citizens at birth because they were born in the Philippines when the archipelago was a U.S. territory (1899-1946).  Specifically, they argue that they acquired citizenship by virtue of the Citizenship Clause of the 14th Amendment.  I will be presenting this paper tomorrow at a symposium, "Contested Citizenship," at the University of Oregon School of Law.  The syposium is sponsored by the Wayne Morse Center for Law & Politics and organized by Professor Michelle McKinley.  

Courts have consistently rejected these birthright citizenship claims from the Philippines, with the most recent one, Lucidine v. Winter, decided in March.  The Citizenship Clause provides that a citizen of the U.S. is one who is born "in the United States" and "subject to the jurisdiction" of the U.S.  Although courts have recognized that the Philippine Islands were under U.S. sovereignty during the territorial period, they have held that the Philippine Islands were not part of the U.S. Utilizing a century-old line of cases called the Insular Cases, courts have held that the territorial scope of the Citizenship Clause is limited to the fifty-states. My paper critiques the continued reliance on the Insular Cases and argues for reconsideration of the interpretation of the Citizenship Clause as applied in the territories in light of Boumediene's non-formalistic approach to understanding the application of rights outside of our borders.

Cases concerning the former and current U.S. territories are generally ignored in the textbooks. We should pay attention to them, however, because they provide a more nuanced view of constitutional rights.  As cases involving the rights of persons detained in Guantamo and litigation concerning whether Senator John McCain is a natural-born citizen have demonstrated, questions about what rights are available in the U.S. territories continue to shape constitutional jurisprudence.