The Jurisprudence of Legitimacy: Applying the Constitution to U.S. Territories

Abstract

To what extent does the Constitution follow the flag to territories under United States sovereignty?' Though this question has twice occupied the center stage of American law and politics,2 federal courts have yet to settle upon a single test for determining which constitutional provisions apply to United States-flag territories. Federal circuit courts currently divide between two competing approaches for making this determination.3 Employing these rival standards, they have reached inconsistent results concerning the territorial force of certain constitutional rights, such as the right to trial by jury. This Comment undertakes to explain the doctrinal disagreement between the two federal circuits whose discord runs the deepest: the D.C. Circuit, which has jurisdiction over American Samoa, and the Ninth Circuit, which hears appeals from the Northern Mariana Islands and Guam. One way to analyze their dispute is to focus on the disorder within the Supreme Court's own territorial jurisprudence. Each of the two approaches employed by the lower courts traces its origin to different Supreme Court opinions.