Abstract

Excerpted From: Ross Dardani, The Influence Of Fourteenth Amendment Jurisprudence And The Universal Declaration Of Human Rights In The U.S. Empire, 44 Law and History Review 309 (May 2026) (77 Footnotes) (Full Document)

In this article, I illuminate how the Fourteenth Amendment of the United States Constitution, along with the Charter of the United Nations (UN Charter) and the United Nations Universal Declaration of Human Rights (UDHR), were interpreted by U.S. military and Samoan leaders in congressional hearings held in the aftermath of World War II (WWII) to influence territorial policy in American Samoa. During these hearings, naval and Samoan leaders expressed concerns about recent domestic and international trends that they believed were moving the United States toward constitutional ??colorblindness.? They explained to U.S. lawmakers that if a future Supreme Court interpreted the Constitution as colorblind, it would mean that the Equal Protection Clause of the Fourteenth Amendment prohibits any racial classification, no matter its purpose. Because of this, they made arguments against the passage of any organic act for American Samoa that included the extension of citizenship, equal protection, or due process. Naval and Samoan leaders argued that if Samoans became U.S. citizens, or were governed by equal protection or due process, a future court could decide that existing race-based restrictions that prohibited non-Samoans from land ownership in American Samoa were now unconstitutional because they relied on racial designations and violated a domestic and international fundamental right to property.

By making these arguments, military and Samoan leaders illuminate the inherent ambiguity and unsettled nature of constitutional law, fundamental rights, citizenship, equal protection, and due process jurisprudence and their possible unintended effects in the U.S. unincorporated territories. The article demonstrates that Samoan leaders highlighted the dynamic, constantly changing nature of constitutional interpretation in the United States by focusing on the Courts role and power in interpreting the Constitution. Samoan leaders emphasized the possibility of a future Court declaring that the fundamental right to property, or the extension of citizenship, equal protection, or due process, could all mean that race-based land ownership restrictions in American Samoa were unconstitutional. Samoan leaders thus made influential arguments to U.S. lawmakers to protect their cultural autonomy and local politics from any future form of white-settler colonialism. Naval and Samoan leaders ultimately thought that the passage of an organic act that extended citizenship, equal protection, or due process to American Samoa threatened existing laws designed to protect the Samoan culture that relied on racial classifications for land ownership. They argued that race-based land restrictions could be declared unconstitutional by the federal judiciary based on recent court decisions and new developments in international law that they believe further legitimized legal colorblindness and a fundamental right to individual property ownership.

This article does not make any arguments about whether American Samoa should be constitutionally allowed to maintain race-based land restrictions if citizenship, equal protection, or due process were extended to Samoans, or if the extension of citizenship alone would raise constitutional issues for any policies designed to protect Samoan culture, based on the broader legal history of U.S. imperialism in the unincorporated territories. Instead, the focus of this article is on why naval and Samoan leaders expressed concerns to U.S. lawmakers that American Samoa would no longer be able to enforce race-based land ownership restrictions after the Courts decision in Shelley versus Kraemer (1948) and the passage of the UDHR if Congress passed an organic act for American Samoa that extended citizenship, equal protection, or due process. I demonstrate that these arguments were rooted in a theory of legal colorblindness and fundamental rights that members of the U.S. military believed it was becoming hegemonic domestically and internationally in the aftermath of WWII.

For naval leaders, after the Courts decision in Shelley and the ratification of the UDHR, all race-based classifications, even those intended to protect the cultural autonomy of subordinated populations, were now likely to be unconstitutional. These military leaders thus believed that the Court and international law had shifted to constitutional colorblindness and heightened scrutiny of violations of fundamental rights. I argue that these military leaders highlighting the negative effects of a colorblind interpretation of the Fourteenth Amendment and the UDHR is an example of what Holger Droessler describes as ?preservationist paternalism.?10 This means that these naval leaders were engaging in a form of white supremacy based on a racist, but genuine, motivation to protect Samoan culture, autonomy, and identity from external, ?Western,? ?civilized? forces. Members of Congress, however, believed that Samoans could become U.S. citizens, be governed by equal protection and due process, and still be allowed to constitutionally maintain racial restrictions on land ownership in American Samoa.

The arguments highlighted in this article, between U.S. military officers and Samoan leaders about the extension of an organic act for American Samoa, offer a precursor to Morton versus Mancari (1974). The Mancari decision was based on a challenge to hiring preferences the federal government gave to indigenous people for positions at the Bureau of Indian Affairs (BIA), which the Court deemed constitutional. The Courts decision in Mancari and debates over the extension of an organic act to American Samoa that included citizenship, equal protection, or due process help illuminate constitutional arguments over the meaning of equal protection, indigenous autonomy, and affirmative action. While Mancari allowed the federal government to give preference to indigenous candidates in hiring decisions, the Court has understood federally recognized tribes to have a sovereign political status that is not a racial classification.

One contribution this article makes is to supplement work on the legal history of citizenship in American Samoa and Guam. This scholarship has explained and analyzed the Hopkins Committee, which was formed in 1947 to investigate and report on the status of Guam and American Samoa in the aftermath of WWII. The Hopkins Committees final report recommended a transfer from naval rule to a federal civilian government and to extend U.S. citizenship to American Samoa, based on what committee members at the time believed were the policy changes Samoans endorsed. In the post-WWII era, U.S. lawmakers recognized that the extension of citizenship would be a valuable form of propaganda to use against the Soviet Union, and now had the Navys support to extend citizenship to Guam and American Samoa. However, while members of the Hopkins Committee found evidence that Samoans were in favor of citizenship as late as 1947, by 1948 some Samoan leaders had started to petition Congress against the immediate extension of citizenship.

The article demonstrates that naval and Samoan leaders argued against the passage of an organic act in 1949, not just because of concerns over what the extension of U.S. citizenship would mean for American Samoas cultural autonomy. U.S. military and Samoan leaders argued that any organic act that included an equal protection or due process clause could also threaten American Samoas ability to prevent non-Samoans from owning and making individual property claims to land on the islands. By 1949, naval and Samoan leaders made arguments to members of Congress that the Courts decisions in Buchanan versus Warley (1917) and, more recently, Shelley, and international law (with the passage of the UDHR), could be interpreted by a future Court to mean that American Samoa would no longer be able to enforce race-based land ownership restrictions for non-Samoans. This article thus adds to previous scholarship on the legal history of citizenship in American Samoa by illuminating that the extension of citizenship was not the only constitutional issue that influenced Congress when it decided against passing an organic for American Samoa in the early years of the ColdWar. Members of Congress were also influenced by the arguments that U.S. military and Samoan leaders made that focused on equal protection and due process. This article thus provides a more complete understanding of why U.S. lawmakers decided not to pass an organic act for American Samoa in 1949 and why Congress has still not passed an organic act that governs Samoans.

Another contribution of this paper is to illuminate how naval leaders and U.S. lawmakers had different interpretations of a seemingly transformative and ??progressive? part of the Constitution (i.e., the Fourteenth Amendment) and a landmark document in human rights law (i.e., the UDHR), while still agreeing that neither fundamentally undermined the legal structure of the U.S. empire. U.S. military leaders argued that Samoan culture and American Samoas political system were threatened by the passage of any organic act that included equal protection, due process, or the extension of U.S. citizenship, because a future Court could declare any racial classification unconstitutional even if its purpose was to protect Samoan land from further colonization. Members of Congress, however, believed that precedents established in the Insular Cases and previous territorial models set within the U.S. empire, including Puerto Rico, the Philippines, Guam, and Hawaii, and white-settler colonial precedents generated from Federal Indian law, would allow Samoans to protect their communal land structure, political system, and culture through race-conscious policies even if they were U.S. citizens and governed by equal protection and due process protections. All of these U.S. political actors, however, believed that the federal government had the power to maintain plenary authority over American Samoa after the ratification of the UDHR, and if Congress passed an organic act that extended citizenship and Fourteenth Amendment protections to Samoans. For these military and political elites, an explicit congressional application of the Fourteenth Amendment to American Samoa and the ratification of the UDHR did not threaten the fundamental legal structure of the U.S. empire that the Court established in the Insular Cases for any territory colonized by the United States after 1898.

After acquiring Puerto Rico, Guam, and the Philippines in 1898 in the aftermath of the Spanish-American War, the U.S. annexation of these territories led to a set of Court rulings decided in the early Twentieth Century, which became known as the Insular Cases. These territories did not fit the previous archetype of white-settler colonialism that the United States had used for territorial incorporation into the U.S. polity. U.S. colonialism was premised on the violent dispossession of indigenous communities through genocide and territorial conquest, with white-settlers migrating to a territory, making ownership claims to land with the support of the federal government and military, and forming a republican system of government that Congress would incorporate as a state.

This model of U.S. white-settler colonialism was not meant to apply to the territories the United States annexed after the Spanish-American War, however. The federal government did not expect that enough white-settlers would migrate to Puerto Rico, Guam, or the Philippines to violently dispossess the local population, form a majority, take control of the local government, and then petition Congress to become a state. Instead, these territories would remain under U.S. control indefinitely, entering into a long-term state of colonial tutelage and only possibly becoming independent from the United States when Congress determined that they were ready for republican self-governance. U.S. military leaders and members of Congress thus did not intend for these territories to become full and equal states, which helps situate the historical context of the Courts decisions on territorial status in the Insular Cases.

The Insular Cases were influenced by racial anxiety and Anglo-Saxon fear over what it would mean for the U.S. polity and ?Americanism? with the inclusion of the non-white populations in the Philippines, Puerto Rico, and Guam (and American Samoa in 1899) into the U.S. body politic. These decisions were rooted in Anglo-Saxon ideology and the belief in the inferiority of the nonwhite people living in Guam, American Samoa, Puerto Rico, and the Philippines. Military leaders, members of Congress, and justices feared what it would mean for the U.S. polity if the residents of the unincorporated territories, whom these elites believed were either incapable of or not yet trained in democratic self-governance, became citizens and equal members in the political system of the United States with full constitutional rights, liberties, and protections. Congress has yet to pass an organic act for American Samoa and extend U.S. citizenship to Samoans; currently, Samoans remain categorized as ?non-citizen nationals? by the federal government.

The Insular Cases focused on whether the Constitution, including the Bill of Rights, applied automatically and in full force to these territories acquired by the United States from the Spanish Empire. The Court ruled that the territories acquired by the United States from the Spanish-American War were ??unincorporated,? a newly created territorial status. The Court argued that these territories were ?foreign in a domestic sense,? meaning that while they were under U.S. sovereignty, the full Constitution and its Bill of Rights does not automatically extend to them. The Court also established that certain ?fundamental? rights do automatically apply in the unincorporated territories, but the justices left these undefined; this created more ambiguity regarding the constitutional protections that exist for people living in territory acquired by the United States after the precedents set in the Insular Cases. Put simply, the Insular Cases meant that, according to the Court, the unincorporated territories could be treated as separate and unequal from territories that have become states. The legal doctrine the Court created in the Insular Cases also allowed Congress to extend specific constitutional provisions and rights to each of the unincorporated territories through legislation. Instead of the automatic extension of citizenship or constitutional protections to the unincorporated territories, now it would require an act of Congress for residents of each territory to become U.S. citizens or have access to constitutional protections, except for undefined fundamental rights and liberties. The Insular Cases thus represent the constitutional legitimation of the U.S. empire.

In sum, after 1898, the Court argued that the United States could annex new territories with no intention of fully incorporating them into the U.S. polity while ruling over them with ambiguous, undefined, and unsettled constitutional restraints that could differ from the legal protections states have from federal power. The rulings in the Insular Cases established that the Constitution, except for undefined fundamental rights and liberties, does not automatically apply in the unincorporated territories. The jurisprudence the Court created in the Insular Cases allowed for Congress to create despotic governing structures that delegated political power to the U.S. military and naval governors in the unincorporated territories. The constitutional ambiguity of the Insular Cases helps explain why military leaders, members of Congress, and Samoans could have different interpretations and understandings of what citizenship, equal protection, due process, and the UDHR meant for American Samoa and its cultural autonomy.

It is important to remain cognizant that despite these differing understandings and interpretations of the Fourteenth Amendment and UDHR, naval leaders and members of Congress had no ambiguity about the United States plenary power in maintaining authoritarian military control over American Samoa. Military leaders and U.S. lawmakers believed that if Samoans became U.S. citizens, were governed by equal protection, or protected by due process, the overarching imperial relationship between American Samoa and the federal government would not be transformed. These naval leaders and political actors argued that any change to American Samoas status in the form of an organic act would still mean that the federal government maintained plenary authority over the territory. Members of the U.S. military and lawmakers thus agreed that the federal government could maintain an imperialist system of subordination and oppression in the unincorporated territories even if Congress passed an organic act extending citizenship, equal protection, or due process to Samoans.

In the context of the U.S. empire, then, the status of citizenship, the meaning of equal protection, due process, and the rights that exist in the unincorporated territories are unclear and unsettled. This ambiguity has allowed the United States to reframe coercion, i.e., the impossible choices that U.S. officials created for American Samoa regarding citizenship, equal protection, and due process, as consent or decolonization, i.e., deference to the will of Samoans. The legal history of citizenship in American Samoa demonstrates that any race-conscious interpretation of the Fourteenth Amendment rooted in an anti-subordination principle in the U.S. unincorporated territories needs to be cognizant of the structural relationship between the United States and its unincorporated territories beyond citizenship, equal protection, or due process status. For example, an interpretation of equal protection undergirded by anti-subordination principles that allows Samoans to become U.S. citizens and protect their land and culture through race-conscious statutes, while still legitimizing current U.S. territorial policy, which grants the federal government plenary authority over American Samoa, demonstrates the limits of ?progressive,? ?egalitarian,? and race-conscious ways of thinking about the Fourteenth Amendment in the context of U.S. empire.

A final contribution of the article is to illuminate an unexplored history of a theory of colorblind constitutionalism in the years leading up to Brown versus Board of Education (1954) and before affirmative action policies came to dominate equal protection jurisprudence in the 1970s. The legal history of citizenship in American Samoa in the immediate years after WWII illuminates how the Courts decisions in Buchanan and Shelley influenced how the Fourteenth Amendment was interpreted and understood by U.S. naval and Samoan leaders in a colorblind manner decades before legal challenges to race-conscious affirmative action policies in higher education and the workforce in the 1970s and 1980s helped to shape contemporary rulings and understandings of equal protection jurisprudence.

The article proceeds as follows. The next section examines some of the scholarly literature and Court precedents on the history and meaning of the Fourteenth Amendment, especially the Equal Protection Clause, its jurisprudence, and what this article contributes to this literature. The final section first explores the history of U.S. imperialism in American Samoa and then analyzes hearings held in 1949 that focused on whether Congress should pass an organic act that would extend citizenship, equal protection, or due process protections to American Samoa. These hearings in 1949 help explain why Congress has not passed an organic act for American Samoa and why Samoans remain ?noncitizens nationals? adding to scholarship on the history of U.S. citizenship in American Samoa.

[ . . . ]

This legal history, which examines debates over an organic act for American Samoa in 1949, offers examples of the differing ways fundamental rights, citizenship, the Fourteenth Amendment, and the UDHR can be used and interpreted in the context of the U.S. empire. In the immediate aftermath of WWII, U.S. naval leaders argued that domestic and international trends were moving in a legally colorblind direction, meaning that the congressional extension of citizenship, equal protection, or due process to American Samoa threatened race-based land ownership protections for Samoans. Members of Congress, however, believed that the extension of citizenship, equal protection, or due process to American Samoa would not prohibit Samoans from maintaining laws that made distinctions, and allowed for protections and rights, on the basis of race (i.e., between Samoans and non-Samoans) for land ownership and the protection of local cultural practices. U.S. lawmakers based their arguments on the ambiguous legal doctrine created by the Court in the Insular Cases, precedents set in other unincorporated territories, and Federal Indian law. Samoan leaders, however, made powerful arguments that illuminated the unsettled and constantly changing nature of constitutional interpretation to demonstrate why they were against any organic act that included citizenship, equal protection, or due process. This article thus demonstrates how fundamental rights, citizenship, equal protection, and due process can be interpreted in ways that dismantle the cultural autonomy of indigenous populations living in the U.S. unincorporated territories. However, this legal history also illuminates how people subordinated within the U.S. empire can resist further colonization by highlighting the unsettled, ambiguous nature of constitutional interpretation in American politics.

Acknowledgements. The author thanks the National Archives and Records Administration for its help in accessing the primary documents used in this article. The author also thanks the anonymous reviewers who offered valuable feedback that significantly improved the article.

Associate Professor of Political Science, Muhlenberg College, USA.