UC Law Constitutional Quarterly


Marybeth Herald


A 1992 Ninth Circuit decision, Wabol v. Villacnisis, revisited the issue of to what extent constitutional protections apply to United States territories. This long-troublesome question has been made more difficult by the infrequency of decisions and the varying relationships the territories have with the United States government. The Northern Mariana Islands became a Commonwealth in 1976, and were then joined with the United States in a consensual and unique relationship that is defined by a Covenant. The Covenant explicitly exempted the Northern Marianas from the application of certain constitutional provisions, including the Equal Protection Clause as applied to racial restrictions on the alienation of land. It is this last question that the Wabol court addressed.

Using that case as a starting point, the author examines the role of the Constitution in defining the relationship between the United States and its flag territories. She traces the history of decisions in this area, beginning with the Insular Cases of nearly a century ago, and offers some criticism of the decisions. The author then looks at the practical consequences of this jurisprudence, using the Northern Marianas as a case study. With that as background, she offers policy suggestions to improve United States-territorial relationships regarding the Constitution.