Lawmakers discuss Safe Have expansion bill

LEGISLATURE: The Guam Congress Building in Hagåtña is shown on Nov. 5, 2020. Post file photo

The Guam Legislature is considering a local resolution that backs an effort in the U.S. House of Representatives to reject a series of century-old rulings from the Supreme Court called the Insular Cases.

The cases dealt with the new United States territories like Guam that were gained following the Spanish-American War and how the federal government could administer over them. They allowed Congress to restrict rights to unincorporated territories by finding that all constitutional protections automatically extend to possessions like Guam and the Commonwealth of the Northern Mariana Islands.

“The Supreme Court at that time decided that the U.S. gets to do whatever it wants – that can treat those territories that it gets really well, it can allow things to apply to them. Or it can withhold things, it can deny them things,” Michael Bevacqua, a member of the Commission on Decolonization told The Guam Daily Post.

“These new ‘alien races’ – the U.S. had to figure out their place and what do they mean to us. And they decided, with the prevailing racism at the time, to interpret them as being lesser – barbaric.”

In the 1901 case of Downes v. Bidwell, which concerned import duties for Puerto Rico, Justice Henry Billings Brown wrote in part: “If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible, and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action.”

The racist language has long been used to challenge the treatment of U.S. territories, including House Resolution 279. The legislation is framed as an official statement from the House of Representatives that:

• Recognizes and acknowledges that America’s constitutional and democratic principles apply throughout the United States, including both states and territories;

• Acknowledges that the Insular Cases are relics of the racial views of an earlier era that have no place in our nation today; and

• Rejects the Insular Cases and their application to all present and future cases and controversies involving the application of the Constitution in United States territories.

The measure also cites more current judicial opinions, including from the Supreme Court itself that questions the validity of the Insular Cases. It has just 12 co-sponsors in the House including Guam Del. Michael San Nicolas. The lone Republican support comes from the non-voting delegate of Puerto Rico.

Impact on taxation, revenue

But critics are wrongly fixated on this single piece of the cases, argues former senator and judge Bob Klizkie. He told the Post that the effects of the case law far outweigh one quote from one decision.

“Of course, the language people quote is so incendiary and fits so well into the colonizer frame of reference that people can’t let it go, and it gets repeated so often,” he said. “So people see it on Wikipedia or someplace like that and say, ‘I guess that’s right.’ Well, it’s not right.”

Guam could see additional taxation and a loss of Section 30 revenue if the Insular Cases are struck down, according to Klitzkie.

“The Insular Cases allow for great flexibility. In American Samoa, people are not citizens by birth like they are here – which is what the people in Samoa like. The upper house of their government is composed of traditional chiefs or people put there by the chiefs,” Klitzkie said. “In the Northern Marianas, the one man, one vote rule doesn’t apply. The upper house of their Legislature is grossly disproportionate. Rota has as many senators as Saipan, that would never fly if the Constitution applied in whole.”

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Public hearing this week

Six senators on Guam are backing the effort in the House of Representatives with a resolution of their own.

Vice Speaker Tina Muña Barnes, the author of the measure, will hold a public hearing on the resolution Wednesday morning. Sens. Clynt Ridgell, Jose Terlaje, Joe San Agustin, Jim Moylan, and Frank Blas Jr. have co-sponsored the resolution.

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