Fundamental Constitutional Rights in U.S.-Controlled Overseas Territories: A Comprehensive Analysis

The Spanish-American War of 1898 resulted in the United States gaining control over multiple Spanish territories through the Treaty of Paris (signed December 10, 1898; effective April 11, 1899). This treaty established different formal relationships between the United States and these territories:

1. Territories Ceded with Designated "Receiving Country:"
   • Puerto Rico
   • Guam
   • Philippines
2. Limbo Cessions
   • Cuba (In the treaty, Spain "relinquished all claim of sovereignty over and title to Cuba" with USMG assuming temporary governance)

Following the cessation of hostilities but prior to the Treaty of Paris, the United States established military governments in all four territories:

• Puerto Rico (beginning August 12, 1898)
• Guam (beginning June 21, 1898)
• Philippines (beginning August 14, 1898)
• Cuba (beginning July 17, 1898)

In his book Military Government and Martial Law, General William E. Birkhimer clarifies: "The US Constitution has placed no limit upon the war powers of the government, but they are regulated and limited by the laws of war. One of these powers is the right to institute military governments."

After the Treaty of Paris came into effect on April 11, 1899, these territories remained under USMG jurisdiction until:

• Puerto Rico: May 1, 1900   (Foraker Act established civil government)
• Guam: August 1, 1950   (Organic Act established civil government)
• Philippines: July 1, 1902   (Philippine Organic Act established civil government)
• Cuba: May 20, 1902   (Independence granted)

Following these acquisitions, the Supreme Court addressed their constitutional status in a series of decisions collectively known as the Insular Cases. The most influential was Downes v. Bidwell (1901), which established the framework for understanding the relationship between the Constitution and U.S. territories.

Justice White's concurring opinion in Downes v. Bidwell (which later became the controlling precedent) established the doctrine of "fundamental constitutional rights" that apply in all U.S. controlled overseas territories regardless of their incorporation status, a view also supported by Justices Gray and McKenna.

Justice White distinguished between two categories of constitutional rights:

1. Fundamental "Natural" Rights (applying in all territories):

• Religious freedom and expression
• Personal liberty
• Property rights
• Freedom of speech and press
• Access to courts of justice
• Due process of law
• Equal protection of the laws
• Protection from unreasonable searches and seizures
• Protection from cruel and unusual punishment
• "Such other immunities as are indispensable to a free government"

2. "Artificial or Remedial Rights" (not automatically applicable):

• Citizenship
• Suffrage
• Particular procedural methods "peculiar to Anglo-Saxon jurisprudence"

Justice White unequivocally rejected the notion that any persons under U.S. governance could be left without constitutional protections:

"Even if regarded as aliens, they are entitled under the principles of the Constitution to be protected in life, liberty, and property."

He further disclaimed "any intention to hold that the inhabitants of these territories are subject to an unrestrained power on the part of Congress to deal with them upon the theory that they have no rights which it is bound to respect."

Justice White identified that the authority to govern territories arises from either:

1. 1. "As a consequence of the right to acquire territory," [quoting from Sere v. Pitot (1810)]   "The power of governing and of legislating for a territory is the inevitable consequence of the right to acquire and to hold territory," and later confirmed in Dorr v. U.S. (1904), or
2. 2. Article IV, Section 3, Clause 2 of the Constitution (the "Territorial Clause")

He explicitly noted that "in either case the right is founded on the Constitution," establishing that all territorial governance is an exercise of constitutional power subject to constitutional limitations.

The sequence of events beginning with the Spanish-American War can be understood through a four-positioned framework:

1. Point A: Surrender Ceremonies, End of Hostilities, Beginning of Military Government, Beginning of Interim Status under the Laws of Occupation

2. Point B: Peace Treaty comes into force, Cession by Treaty, Point of Cession

3. Point C: End of Military Government of the Legal Occupier, End of Interim Status

4.Area D: Final Status after the Military Occupation, Civil Government begins

Regions

Point A to Point C: Period of Military Occupation

• The military occupation period, which corresponds to the period when military government administrative authority is active
• The territory may be said to be in interim status under the laws of occupation
• Defense needs of territory are handled by the legal occupier

Point A to Point B: Belligerent Occupation

• This is the period of belligerent occupation
• Principle: Territory actually placed under the authority of the hostile army is considered occupied, not annexed.
• Military government exercises authority derived from belligerent rights, which means that the direct result of conquest is to obtain jurisdiction over the territory in question.
• Territorial Status: Independent Customs Territory under USMG on Spanish soil

Point B to Point C: Post-Treaty Military Governance

• Military government continues after treaty enters into force
• Often called the "civil affairs administration of a military government"
• Fundamental rights under the US Constitution for local residents are applicable beginning here
• Territorial Status: Unincorporated territory under USMG

If one examines the situation on April 18, 1899, i.e. one week after the Treaty of Paris came into effect on April 11, 1899, it is easily seen that all four territories shared identical characteristics regarding fundamental rights:

• All were under USMG jurisdiction
• None had been incorporated by congressional action
• All were governed under authority derived from the Constitution
• All were in the "Post-Treaty Cession Military Governance" phase

Justice White's discussion of Cuba confirms that fundamental rights principles applied there despite its different treaty status:

1. He describes "the benign sovereignty of the United States" as extending over Cuba during occupation
2. He explicitly connects Cuba's status to constitutional principles, noting that "the sovereignty of the United States may be extended over foreign territory to remain paramount until . . . it be relinquished"
3. He characterizes Cuba as being subject to the "dominion and control" of the United States, a characterization later confirmed in DeLima v. Bidwell (1901)

In Neely v. Henkel (1901), the Court described U.S. authority in Cuba as being exercised "for the benefit of the Cuban people and for their account, to be relinquished to them when the conditions justify its accomplishment." This trust relationship, rather than exempting Cuba from constitutional limitations, reinforced the obligation to respect fundamental rights.

Following the Mexican-American War, California remained under U.S. military government after the Treaty of Guadalupe Hidalgo came into force. When customs duties collected by military officials were challenged, the Supreme Court held:

• Military government "had its origin in the lawful exercise of a belligerent right over a conquered territory"
• It "did not cease, as a matter of course, or as a necessary consequence of the restoration of peace"
• The military government continued legitimately until replaced by other arrangements, i.e. the establishment of a recognized "civil government" for the territory

This precedent established that for territories ceded in a peace treaty after war:

1. Military government continues legitimately after peace treaty ratification
2. Such government remains subject to constitutional limitations
3. The fundamental rights doctrine of Downes v. Bidwell (1901) applies beginning at the Point of Cession

The fundamental rights doctrine applies to:

1. Unincorporated territories acquired by treaty cession to the United States, i.e. where the United States was designated as the "recipient country."
2. Unincorporated territories acquired by treaty cession where no recipient country is designated, but the treaty specifies continuing United States Military Government (USMG) jurisdiction over the territory after cession. This includes situations where the peace treaty confirms the role of the United States as the legal occupier, because there is a maintenance of that status even after the territorial cession enters into force.

The Constitution's fundamental guarantees protect all persons subject to U.S. jurisdiction regardless of:

1. The formal status of the territory
2. Method of acquisition
3. Intended permanence of the relationship
4. Congressional action or inaction
5. Citizenship status of inhabitants

Taiwan's current status presents parallels to the territories analyzed above:

1. Treaty Framework: The SFPT (effective April 28, 1952) contains provisions similar to the Treaty of Paris regarding Cuba:
   • Japan "renounces all right, title and claim to Formosa and the Pescadores" in Article 2(b)
   • No recipient country was designated, creating a sovereignty vacuum
   • Article 4(b) recognizes USMG authority over property dispositions
   • Article 23(a) designates the United States as the "principal occupying power"
2. Military Occupation Framework: Taiwan can be understood as being in an extended "Point B to Point C" region:
   • Japan formally ceded Taiwan without designating a recipient (Point B - April 28, 1952)
   • The final status determination has not occurred (Point C - pending)
   • Taiwan remains in interim status under the laws of occupation
3. Current Governance Anomaly: The ROC's administration lacks clear legal foundation under the SFPT:
   • ROC's role as subordinate occupying power effectively terminated with SFPT's entry into force
   • USMG jurisdiction technically remains in force but has not been actively implemented
   • This creates a legal discontinuity similar to the issues which the Supreme Court Justices discussed in Cross v. Harrison

In the current era, if the U.S. Commander in Chief were to place Taiwan under U.S. military occupation based on the San Francisco Peace Treaty (SFPT), it is noteworthy that, in addition to the compiled record of statements made by officials of the People's Republic of China (PRC) and those who supported the PRC in the UN Security Council and UN General Assembly beginning in mid-1950 -- asserting that "Taiwan is occupied territory of the United States," and with the Taiwanese people agreeing to such arrangements in a plebiscite,

1. Immediate Application of Fundamental Rights: The Taiwanese people would immediately be entitled to the fundamental constitutional rights identified in Downes v. Bidwell:
   • Religious freedom
   • Personal liberty and property rights
   • Freedom of speech and press
   • Access to courts of justice
   • Due process of law
   • Equal protection
   • Protection from unreasonable searches and seizures
   • Protection from cruel and unusual punishment
2. Legal Basis: These rights would apply based on:
   • The exercise of U.S. governance authority under constitutional powers.
   • The principle that constitutional limitations follow the exercise of U.S. authority.
   • Downes v. Bidwell's recognition that fundamental rights apply regardless of incorporation status.
   • Continuing U.S. military government (USMG) jurisdiction over Taiwan after late April 1952, based on the content of SFPT Article 4(b).
3. No Congressional Action Required: Following the precedent in Downes v. Bidwell:
   • Fundamental constitutional rights would apply automatically
   • No explicit congressional action would be needed to extend these protections
   • These rights would be immediately enforceable in appropriate courts
4. Status of Plebiscite: While a plebiscite would provide democratic legitimacy:
   • The application of fundamental rights does not legally depend on such a vote
   • Rights would apply by virtue of U.S. authority being exercised
   • The plebiscite would address political and governance questions, not whether constitutional protections apply

Taiwan's situation closely parallels Cuba's post-Spanish-American War status:

1. Trust Relationship: Like Cuba, Taiwan could be considered held in trust:
   • U.S. authority exercised for the benefit of the Taiwanese people
   • Temporary administration pending final status determination
   • Fundamental constitutional rights applying throughout this period
2. Cross v. Harrison Principles: The legal framework established for California would apply:
   • Military government authority continuing after peace treaty cession,
   • Governance conducted under U.S. constitutional limitations,
   • Administration continuing until appropriate civil government structure is established
3. Neely v. Henkel Analysis: While Taiwan might be considered "foreign territory" for certain specific statutory purposes, this would not exempt it from fundamental constitutional protections