SETTING THE PDN STRAIGHT ON VOTING AND THE INSULAR CASES.

VOICE OF THE PEOPLE PDN Oct. 28

Editorial wrong on Insular Cases, vote

Your Turn

Robert Klitzkie Guest columnist

In response to a Pacific Daily News editorial from Oct. 12, the punch line from a TV comedy show is a rather shallow foundation upon which to build an editorial dealing with a serious subject. This glaringly false statement was uttered by Guam historian Anne Perez Hattori on the TV show “Last Week Tonight with John Oliver”: “The United States flag is flying over these lands so some people said, well, doesn’t that mean that American laws apply? In 1901 the Insular Cases, basically the judgment of the Supreme Court, the new territories were inhabited by alien quote alien races and they may not be able to understand Anglo-Saxon laws therefore the constitution doesn’t have to apply.”

Hattori, a Guam historian, condensed 147 pages of United States Supreme Court opinion into 38 words and presented that as the ratio decidendi, reason or rationale, and not the hypothetical obiter dictum, opinion, that it really was.

The three concurring opinions from which the court’s ruling was derived employed different rationales which yielded the holding in Downes, none of which relied on Guam historian Hattori’s 38 words to reach a result. Hattori’s statement smacks of a degree of sophistry that is perhaps fitting for a TV comic but not coming from a university professor who we should be able to take seriously.

In the other key case S. B. Downes and Co. was an importer who sued the collector of customs for New York to recover $659.35 paid in duty for the import of some bananas to George R. Bidwell the customs collector for New York. Downes turned on the determination of whether the Foraker Act (Puerto Rico’s Organic Act) passed constitutional muster. The Downes decision held only that the Uniformity Clause of the Constitution: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” was not applicable outside the 47 states that made up the union at that time. Here’s the holding in that case: “We are therefore of the opinion that the Island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution; that the Foraker Act is constitutional, so far as it imposes duties upon imports from such island, and that the plaintiff cannot recover back the duties exacted in this case.”

The judgment of the Circuit Court is therefore affirmed.

Downes dealt with customs duties not voting and not with the inapplicability of the constitution in Puerto Rico, et al., due to the presence of “alien races” therein. The “alien races” wordage is obiter dictum, doesn’t apply to Puerto Rico, Cuba, the Philippines or Guam and is stated only hypothetically.

Inability of residents of the territories does not stem from the Insular Cases but from the design of the American Republic where civil rights have a national dimension but political rights are arise from residence in one of the 50 states. Voting rights in national elections is not unavailable because of the Insular Cases.

The Pacific Daily News’ statement, “given the clearly racist language and logic, it’s disturbing that voting rights continue to be denied based on the Insular Cases,” is not only dead wrong but is very similar to arguments that attempt to gaslight Guam’s position in the American system in order to enhance argument for a Guam that is independent of the United States.

Numerous myths sounding in identity politics e.g.: We are second-class citizens; we are statutory, not constitutional, citizens; because of the Insular Cases we can’t vote for president; there are only three options for decolonization of the island; and that GovGuam is working toward decolonization and the one you just published, “Given the clearly racist language and logic, it’s disturbing that voting rights continue to be denied based on the Insular Cases” circulate.

This is a crucial time in the political development of Guam. Given that we live in a time when serious discussions concerning nationalism, statehood, self-determination, patriotism, national defense, self-government, racism, decolonization, home rule, hegemony, etc., require serious discussion, none of us is well-served by mythic distractions grounded in identity politics. I have higher hopes for the Pacific Daily News.