The Imposition of Constitutional Rights

One of the central principles of constitutionalism is that citizenship stands for equal rights under the law. According to this ideal, a U.S. citizen living in Puerto Rico or Guam should have the same constitutional rights as a citizen living on the mainland. However, throughout U.S. history, constitutional rights have been neither uniform nor centralized. While constitutional rights held importance, they coexisted with ideals of democratic self-governance and legal pluralism. Today, Supreme Court justices and legal scholars argue that all constitutional rights should apply in the territories. This view upholds citizenship, equal rights, and the rule of law. But the imposition of constitutional rights overshadows more critical discussions about democracy, pluralism, and decolonization in U.S. territories. This Article critiques the imposition of constitutional rights in the American empire. It explores the historical and intellectual links between how the Supreme Court extended federal constitutional rights in the states and territories. The extension of constitutional rights was influenced by slavery and territorial expansion, culminating in two doctrines: the doctrine of selective incorporation (for states) and the doctrine of territorial incorporation (for territories). Through these doctrines, the Supreme Court decided to extend to the states and territories only those rights deemed “fundamental,” excluding “methods of procedure,” such as jury rights. Initially, the Supreme Court’s interpretation of fundamental rights aligned with democracy and legal pluralism. However, during the twentieth century, the Supreme Court incorporated nearly all of the Bill of Rights against the states. This raises the question: Would the same “fundamental rights” apply in U.S. territories? Federal courts and legal scholars have yet to provide a normative answer to the questions of which rights should be incorporated in U.S. territories and what, if anything, justifies a different system of rights in the states and territories. This Article proposes a solution by emphasizing three normative values: democratic self-governance, pluralism, and decolonization. If we genuinely prioritize self-rule, the people living in the territories should determine for themselves whether and how constitutional rights apply there. By reevaluating the over-looked similarities with Native nations, this Article argues that democratic pluralism for colonized peoples is constitutional in the territories. This normative approach can take various institutional forms to resist judicial imposition: legislative override, legislative resistance, legislative avoidance, judicial resistance, and judicial avoidance. Through this normative approach, we can reappraise local debates and bills concerning unanimous jury trials, free speech, campaign financing, and gun control, among other issues. Thus, by theorizing from the territories, we can conceive new ways to reconcile constitutional rights with democracy, pluralism, and decolonization.