Americans, Beyond States and Territories

By Tom C.W. Lin. Full Text.

For over a century, the law has systemically marginalized over three million Americans living in the unincorporated Territories of the United States. The law has long defined the Territories homogenously and subserviently to States. It has segregated the rights and privileges of citizenship between those living in States and those living in Territories. Americans living in States receive all the rights and privileges of citizenship, while Americans living in Territories are dispossessed of their right to vote, meaningful political representation, and various federal benefits. This pernicious legal dualism between States and Territories has grounded over a century’s worth of public policy, scholarly inquiries, courtroom challenges, and political advocacy. While straightforward, this framework is too limiting and fundamentally incorrect. By allocating so much attention and resources to the differences between Territories and States, not enough focus and capital has been paid to the differences among the Territories themselves. By defining, for so long, the Territories through a legal framework of segregated subservience to States, pragmatic solutions have been overlooked—to the detriment of millions of Americans.

This Article is about this faulty legal framework, its constraints, and a normative and practical move beyond States and Territories towards a more diverse and inclusive conception of American citizenship. It begins with an overview of each Territory and examines their shared struggles of political disenfranchisement, economic destitution, racial discrimination, and climate change. Next, the Article examines their distinct despairs—focusing on Puerto Rico exceptionalism, military occupation, geographic divergences, and disparate federal benefits—to highlight key differences. Finally, turning from afflictions to solutions, this Article introduces a new territorial diversity framework as an alternative to the traditional States/Territories legal construct. It aims to unlock tangible, overlooked solutions for the Territories in the near term through executive orders, legislative earmarks, and agency action while larger legal questions remain unresolved. Ultimately, this Article aspires to offer an original, pragmatic framework for advocating and acting anew with greater creativity and urgency for our fellow Americans in the Territories.