POPULAR CONSTITUTIONALISM

At its core, popular constitutionalism is a simple yet powerful idea: that interpreting the Constitution and the process that generates its meaning has never been and should never be only for the judiciary (Schmidt Reference Schmidt2018, 67). Scholars of popular constitutionalism are particularly interested in ways that actors outside the formal judicial realm, from ordinary citizens to members of Congress to the president, have engaged in their own ways of thinking about the Constitution and helped to produce its meaning (Kramer Reference Kramer2004; Post and Siegel Reference Post and Siegel2004; Tushnet Reference Tushnet2006; Siegel Reference Siegel2008; Schmidt Reference Schmidt2011, Reference Schmidt2018; Ackerman Reference Ackerman2014; Beienburg and Frymer Reference Beienburg and Frymer2016). In his formative work on the origins of popular constitutionalism in US political culture, Larry Kramer (Reference Kramer2004, 7) explains that for the founding generation, the “Constitution remained, fundamentally, an act of popular will: the people’s charter, made by the people … [I]t was ‘the people themselves’ … who were responsible for seeing that it was properly interpreted and implemented.” According to Kramer, the belief that the judiciary would function as the final or sole arbiter of the Constitution only emerged over time, especially after Brown v. Board of Education (1954) and Cooper v. Aaron (1958). The basic theory of popular constitutionalism is that through an interactive, constitutive, dialogical process of constitutional contestation between ordinary people, organized groups, elected officials, and the judiciary, the meaning of the Constitution is produced (Tushnet Reference Tushnet2006, 999–1001; Schmidt Reference Schmidt2011, 528; Beienburg and Frymer Reference Beienburg and Frymer2016). In this article, I argue that the movement for US citizenship in Guam offers a powerful example of this interactive process “of the development of constitutional principles in the distinctive realm of extrajudicial contestation” (Schmidt Reference Schmidt2018, 90). Members of Guam’s Congress influenced US naval leaders and lawmakers to interpret the Constitution in a way that extended citizenship to Guamanians.

Recent scholarship has demonstrated that people and groups engaging in forms of popular constitutionalism have interpreted the Constitution in ideologically diverse ways. While theories of popular constitutionalism have mostly been connected to liberal scholars and progressive causes, especially as a critique against the conservatism of the Roberts Court, recent scholarship has explored how in contemporary American politics, right-wing, libertarian movements organized around principles of deregulation and small government may be better positioned to mobilize around popular constitutionalism, with a focus on interpretations of the Second Amendment and an individual right to bear arms (Siegel Reference Siegel2008) and the Tea Party Movement (Schmidt Reference Schmidt2011). Others have argued that popular constitutionalism is healthy for US democracy (Collins and Eshbaugh-Soha Reference Collins and Eshbaugh-Soha2019) and can be a source to generate novel and expansive progressive civil rights claims (Goluboff Reference Goluboff2007; Lovell Reference Lovell2012). Sophia Lee (Reference Lee2014) has demonstrated that both liberals and conservatives mobilized around popular constitutionalism at various points throughout the twentieth century in the area of workers’ rights, making arguments about whether the Constitution applies in places of private employment and what this means for right-to-work laws, the right to organize, and the New Deal labor regime. Mary Ziegler (Reference Ziegler2015, Reference Ziegler2023) has explained how leaders of the religious right and various groups in the antiabortion movement, and members of the reproductive freedom movement, have all generated their own influential understandings of what the Constitution means for abortion rights that are far removed from the Supreme Court’s opinion in Roe v. Wade (1973). Scholars have also emphasized that popular constitutionalism does not exist in opposition or as a dichotomy to judicial power, as people engaging in forms of popular constitutionalism can create meanings of the Constitution that demand a more powerful and autonomous judiciary (Shugerman Reference Shugerman2012; Beienburg and Frymer Reference Beienburg and Frymer2016). Thus, “[p]opular constitutionalism is temporally and contextually bound, reflected in different forms and forums at different times in US political history and always dependent on the interactions between … institutions” (Beienburg and Frymer Reference Beienburg and Frymer2016, 242).

While there has been rich scholarship on popular constitutionalism, it has yet to be applied to extrajudicial actors mobilizing against US empire. Members of Guam’s Congress understood naval rule as despotic and a violation of foundational constitutional principles, and they mobilized around their own “aspirational” interpretation of the Constitution (“a claim … without a solid footing as a matter of court-defined constitutional law” [Schmidt Reference Schmidt2018, 66]), one in which they were automatically US citizens once the United States claimed sovereignty over Guam, making this an example of popular constitutionalism in its “purest” form (Schmidt Reference Schmidt2011, 530). The Supreme Court’s rulings in the Insular Cases left unclear whether citizenship automatically extended to people living in unincorporated territories after 1898 or if the extension of citizenship would require congressional action. This ambiguity enabled a space of constitutional contestation in which Guamanians were able to protest for US citizenship through a form of popular constitutionalism that demanded Guam’s equal inclusion within the US political system. This ultimately led to Congress extending citizenship to Guam, demonstrating how Guamanians were able to participate in the interactive, contested process of “giving meaning to the nation’s founding document” (Schmidt Reference Schmidt2018, 67). While Guamanians based their moral and constitutional arguments on the theory that citizenship should have automatically extended once the United States formally annexed Guam (regardless of congressional action), Congress used the passage of an organic act in 1950 to make Guamanians citizens based on the precedents set in the Insular Cases. This is an example of how the meaning of the Constitution is contested and generated through an interactive process involving not only the courts, but also actors operating in extrajudicial settings.

The legal history of US citizenship in Guam illuminates how popular constitutionalism can exist as a form of resistance to US empire, and thus “expands[s] the terrain of actors and complicate[s] the ways in which democratic decision making through the purview of the Constitution takes place” (Beienburg and Frymer Reference Beienburg and Frymer2016, 261).

WESTERN COLONIALISM AND IMPERIALISM IN GUAM AND THE INSULAR CASES

This section offers a broad historical overview of Western colonialism and imperialism in Guam to contextualize the United States’ formal annexation of Guam after the Spanish-American War and to emphasize the major precedents of the Insular Cases to understand the constitutional relationship between the US federal government and why Guamanians mobilized and protested for US citizenship.Footnote ¹

There is a long history of European and US imperialism in Guam as its location in the Pacific has historically made it “an area of prime military importance” (Leibowitz Reference Leibowitz1989, 303). Guam was originally inhabited by the Chamoru,Footnote ² descendants of Austronesian people originating from Southeast Asia, who developed a complex class-based society.Footnote ³ While US naval leaders would assume that most of Chamoru culture had been destroyed through Spanish colonization, “certain aspects of the ancient Chamorro culture and even of the native character have persisted through four hundred years of diversified contacts with the outside world” (Thompson Reference Thompson1969, 281). Chamoru resistance to European and US imperialism has thus remained a constant throughout Guam’s history.

Displacements caused by Spanish colonization transformed the Chamoru communal land system and help explain why Guamanians would later mobilize for US citizenship. The massive decrease in the Chamoru population due to Spanish colonization meant that there was an abundance of land to cultivate (Hofschneider Reference Hofschneider2001, 7). Spanish colonization also introduced new crops, like corn, and farming techniques, and made the Chamoru more dependent on land by prohibiting the construction of ocean canoes and sailing beyond the reefs of the island (8). This would lead Chamoru life to revolve around small farms, producing crops such as corn and copra for survival, as “each household formed an independent, self-sufficient economic unit” (8). Land ownership for small-scale farming would thus become a central aspect of Chamoru culture, setting up later disputes with the US government over naval use of Guam’s land and Guamanians mobilizing for the right to jury trials (Unterman Reference Unterman2020). Spanish colonization thus influenced Chamoru land customs and policies in ways that are important for better understanding why Guamanians later protested for US citizenship. In the post-WWII era, Guamanians believed citizenship would grant them individual property protections and rights against the US Navy colonizing land on the island for strategic military purposes.

Spain ceded sovereignty over Guam to the United States through the Treaty of Paris in 1898, which formally ended the Spanish-American War and also transferred power over the Philippines and Puerto Rico to the United States. The Treaty of Paris granted broad authority to Congress to govern the territories acquired from Spain, as it stated that “[t]he civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by Congress” (Treaty of Peace, article IX). The annexation of Guam and the Philippines allowed US ships to have access to a more efficient route to Asian markets through Hawaii, Wake, Guam, and the Philippines, which helps explain why the United States placed such strategic military value in Guam after its US colonization (Kennedy Reference Kennedy2009, 55–56).Footnote ⁴ Immediately after the United States annexed Guam in 1898, Congress established a military government to rule the island, led by naval officers. The US military would govern Guam until 1950, disrupted by a three-year Japanese occupation during World War II. The passage of the Guam Organic ActFootnote ⁵ in 1950 transferred authority over Guam from the Department of Defense to the Department of the Interior, where federal control remains. Immediately after the ratification of the Treaty of Paris, however, the Supreme Court was asked to determine the constitutional relationship of the US federal government to its newly annexed territories.

In 1901, the Supreme Court issued a ruling in a case that would become the first in a series of decisions now known as the Insular Cases.Footnote ⁶ This set of cases would establish the relationship between the federal government and the territories annexed by the United States after the Spanish-American War and the initial citizenship status of Puerto Ricans, Filipinos, and Guamanians. The main constitutional issue presented in the Insular Cases was popularly captured at the time with the question: does the Constitution follow the flag? US military leaders argued that the Bill of Rights and birthright citizenship, despite the Due Process and Citizenship Clauses of the Fourteenth Amendment, did not automatically extend to territories under US sovereignty after the Spanish-American War (Venator-Santiago Reference Venator-Santiago2015).Footnote ⁷ To the question of whether the Constitution followed the flag, the Supreme Court would provide an ambiguous answer in Downes v. Bidwell (1901). The case considered whether the federal government imposing customs duties on imports from Puerto Rico that did not apply to other states was a violation of the Uniformity Clause (article I, section 8, clause 1) of the Constitution, which states that “all duties, imposts, and excises shall be uniform throughout the United States.” The Court ruled that the differential tax treatment of imports from Puerto Rico was constitutional, since the full protection of the Constitution applies only to those territories that are fully incorporated as an “integral part” of the United States. The Court then created a new territorial status, the unincorporated territory, to explain the relationship between the federal government and any territories annexed by the United States after the Spanish-American War. This meant that after Downes was decided it was initially unclear whether the Constitution, the entire Bill of Rights, and/or US citizenship applied automatically to any areas acquired by the United States after 1898, leaving Congress with significant power to determine the constitutional status and governing structure of the Philippines, Puerto Rico, and Guam. Only in precedents established after Downes, especially Gonzalez v. Williams (1904), when Puerto Ricans, through their first federal representative, Federico Degetau y González, argued that they were US citizens, did the Court explicitly rule that citizenship had not automatically extended to the territories annexed by the United States after the Spanish-American War (Erman Reference Erman2014).

Various scholars have provided evidence that the Supreme Court created the unincorporated territory status because the justices and US policy makers feared that past territorial precedents could require the majority nonwhite populations of Puerto Rico and the Philippines to be fully included into the United States (Kaplan Reference Kaplan2002; Kramer Reference Kramer2006; McCoy Reference McCoy2009; Erman Reference Erman2019, 39–42, 51; McCann and Lovell Reference McCann and Lovell2020, 35–66). Supreme Court justices, US lawmakers, and military leaders, through an “iterative” process that ultimately generated the foundational principles of territorial policy after 1898 (Erman Reference Erman2014), believed that the nonwhite people living in the Philippines, Puerto Rico, and Guam were racially and culturally inferior and thus ineligible for inclusion in the US polity and unfit to rule themselves with a republican form of government without proper Anglo-Saxon tutelage (Briggs Reference Briggs2002; Love Reference Love2004; Kramer Reference Kramer2006; Go Reference Go2011). Thus, the main precedents in the Insular Cases enabled Congress to choose when and how to treat the newly created “unincorporated territories” as part of the United States for constitutional and citizenship purposes (Venator-Santiago Reference Venator-Santiago2013; Erman Reference Erman2014).

One of the first cases that demonstrated that US citizenship did not automatically extend to the unincorporated territories was Gonzalez v. Williams (1904), in which the Court determined that residents of Puerto Rico were not completely foreign in their relationship to the United States or US citizens, but something in between: noncitizen nationals (Erman Reference Erman2014).Footnote ⁸ Other cases, such as Hawaii v. Mankichi (1903), Dorr v. United States (1904), and Balzac v. Porto Rico (1922), determined that even though certain nebulous and never explicitly defined “fundamental rights and liberties” applied in the unincorporated territories, this did not mean that the Bill of Rights or citizenship automatically applied in the unincorporated territories (Tauber Reference Tauber2006; Unterman Reference Unterman2020). And even after Congress formally extended citizenship to Puerto Rico with the Jones Act in 1917, the Court’s ruling in Balzac held that certain provisions of the Bill of Rights still did not apply in Puerto Rico. Thus, according to the territorial doctrine established by the Supreme Court after 1898, citizenship and many constitutional rights had to be individually extended to the unincorporated territories through congressional action (Tauber Reference Tauber2006)—and even then citizens in unincorporated territories were denied the right to vote and procedural protections for the criminally accused.Footnote ⁹

The theory of popular constitutionalism helps explain why Congress extended US citizenship to Guam in 1950. Members of Guam’s Congress in the 1930s used foundational constitutional principles and moral values to argue that despite the holdings in the Insular Cases Guamanians should be considered US citizens even without affirmative congressional action. Guam’s congressional walkout in 1949 put pressure on the United States during the early years of the Cold War to recognize Guamanians as full and equal citizens in the US political community. By arguing that despotic US naval rule over the territory violated fundamental democratic principles, and was thus unconstitutional, Guamanians’ interpretation of the Constitution pressured US lawmakers to extend citizenship to Guam. Thus, the extension of US citizenship to Guamanians provides an example of how constitutional meaning is generated and shaped through “extrajudicial … contestation” that occurs outside of the formal legal realm (Schmidt Reference Schmidt2018, 90).

NAVAL AUTHORITARIAN RULE OVER GUAM

The extension of US citizenship to Guam “was the product of a long determined campaign on the part of the Guam citizenry, sometimes with the support of the local naval officials, against the Washington opposition of their Department of the Navy counterparts” (Leibowitz Reference Leibowitz1989, 317).Footnote ¹⁰ While Guamanians had expressed a desire for US citizenship consistently after annexation in 1898, it was only when naval leaders no longer opposed extending citizenship to Guam in the immediate years after World War II that Congress passed legislation conferring citizenship to the territory. This event was the product of a contested, interactive process of popular constitutionalism in which Guamanians mobilized to demand citizenship, culminating in a boycott organized by the Guam Congress in 1949.Footnote ¹¹ The boycott pressured the United States to hold hearings to determine whether Congress should make Guamanians US citizens. These hearings demonstrate that naval leaders and US lawmakers believed that extending citizenship to Guam would serve as a valuable “psychological weapon” in the United States’ propaganda struggle with the Soviet Union during the early years of the Cold War without threatening the United States’ plenary control over Guam.

Recent work has demonstrated the multifaceted ways that citizenship can be used by different actors and the various meanings it can have for different populations. Scholars have illuminated novel claims of a right to birthright citizenship that granted protections to travel freely rooted in the Privileges and Immunities Clause that were made by free Black people throughout the antebellum period (Kantrowitz Reference Kantrowitz2012; Pryor Reference Pryor2016; Glass Reference Glass2018; Jones Reference Jones2018; Schoeppner Reference Schoeppner2019); these are examples of the potential power of citizenship to be used by excluded and subordinated groups as a way to challenge structures of white supremacy and to demand full inclusion and equality within political communities. Other scholarship has examined how the extension of citizenship to the US unincorporated territories can be used by members of Congress and the military to legitimate US empire (Erman Reference Erman2019; Dardani Reference Dardani2020).

The legal history of US citizenship in Guam provides a valuable example of the ambiguous and indeterminate nature of popular constitutionalism within the context of US imperialism. Members of Guam’s Congress made moral claims and interpreted the Constitution in ways to argue that Guamanians should be considered US citizens despite the precedents set in the Insular Cases. Guamanians based these arguments on moral and constitutional principles rooted in equality and fairness. US naval leaders and lawmakers then determined that extending citizenship to Guam could be valuable propaganda for the United States during the Cold War. This legal history provides an instructive example of the complexity of popular constitutionalism and its potential variegated uses. Guamanians protested to become US citizens for full inclusion within the United States. US policy makers believed extending citizenship to Guam would serve as valuable propaganda demonstrating the superiority of the American political system compared to the Soviet Union, while not fundamentally changing the relationship between the federal government and the unincorporated territories. Popular constitutionalism does not have a predetermined ideological outcome; the Constitution and the governmental system it establishes can be interpreted by marginalized people in progressive ways to demand equality and inclusion in a political community, or by military and political leaders of a global empire to maintain systems of power, oppression, and subordination. The legal history of US naval rule over Guam from 1898 to 1950 thus demonstrates the indeterminacy of popular constitutionalism.

As highlighted earlier, the Treaty of Paris granted Congress authority to determine the “civil rights and political status” of Guamanians (Treaty of Peace, article IX). Yet from 1898 to 1950, Congress did not enact any legislation to establish a territorial government for Guam, placing it in an ambiguous, liminal constitutional realm, neither fully outside nor within the Constitution and ultimately establishing Guamanians as noncitizen nationals. During this period, power over Guam resided in the US president and US military. Immediately following the conclusion of the Spanish-American War and the signing of the Treaty of Paris, President McKinley issued an executive order that placed a military governor in control of the political structure of Guam. Although intended as a temporary measure, this order would provide the legal basis for a half century of US rule over Guam (Hofschneider Reference Hofschneider2001, 18). Guam’s status became that of a “conquered” territory governed through the ideology of US imperialism: the military maintained authority over Guam, with Guamanians treated as “foreign” inhabitants within the sovereignty of the United States without access to full constitutional rights or US citizenship. The Governor of Guam had the unilateral ability to pass and implement laws and to overturn local court judgments—Guam was thus in a state of autocratic martial law (Hofschneider Reference Hofschneider2001, 32–33).

Reports filed by naval leaders during the early 1900s provide evidence of why the US military believed Guamanians could be easily controlled and why Guam would provide a valuable strategic base of global imperialist operations (Carano and Sanchez Reference Carano and Sanchez1964, 2; Thompson Reference Thompson2010, 228–29).Footnote ¹² Naval leaders described Guamanians as “like children, easily controlled and readily influenced by examples, good or bad” (Dyer Reference Dyer1904, 2–3, quoted in Thompson Reference Thompson2010). The 1904 Cottman Report, as another example, delineated the United States’ desire to change the official language of Guam from Spanish to English, to rid the island of Catholic influence and foster US Protestantism, and to sanitize the population and impose a work ethic, as US military leaders viewed Guamanians as inherently unhygienic and lazy (Cottman Reference Cottman1899, quoted in Thompson Reference Thompson2010, 227–36). Educational plans focused on vocational training (e.g., farming, carpentry, weaving, copra making, sewing, cooking) and hygiene and stopped at sixth grade for most students, to ensure that the Navy would be able to maintain its base efficiently by training Guamanians to be “useful,” “productive,” and “happy … to farm, fish, or work in certain blue-collar, unskilled positions” (Hofschneider Reference Hofschneider2001, 37). The Navy viewed its role as one of beneficent paternalism to Guamanians, strengthening naval rule over the island by creating compliant laborers. In its efforts to “civilize” Guamanians, the Navy issued laws banning cohabitation, concubinage, male nudity in public, gambling, and cockfighting (Leibowitz Reference Leibowitz1989, 310; Hofschneider Reference Hofschneider2001, 23–24; Thompson Reference Thompson2010, 227–36). The Cottman Report situates Guam within a broader ideology of Western colonialism and imperialism, in which certain races were infantilized and viewed as less developed when compared to White Anglo-Saxons (McCarthy Reference McCarthy2009). The “Anglo-Saxon tutelage” (Weiner Reference Weiner, Burnett and Marshall2001, 48–81) Guam was to receive, according to naval leaders, differed from the political training planned for other territories the United States acquired after the Spanish-American War. US military leaders understood Guamanians to be incapable of achieving a democratic form of governance, in contrast to the Philippines and Puerto Rico, which the Navy believed could be capable of self-government after proper education (Thompson Reference Thompson2010, 237–45). Military leaders thus believed that authoritarian rule was the best form of government for Guamanians, and US policy makers viewed Guam as nothing more than strategically valuable land for the United States to exploit in support of its global empire.

Guam’s Congress was established in 1917 by the US government for its military leaders to better understand how to effectively govern the island and increase agricultural and economic production. Guamanians became frustrated when it became clear that ultimate power over Guam still resided with the US military, as “[Guam’s Congress’s] decisions could be offered only as advice to the American Governor, who accepted or rejected the recommendations as he pleased” (Hofschneider Reference Hofschneider2001, 56).Footnote ¹³ Initially, members of Guam’s Congress were chosen by the naval governor and had no actual legislative power, as it was considered an “advisory council” by the US military (56). It was not until reforms implemented by the US military in the early 1930s that members of Guam’s Congress were popularly elected by Guamanians, but the naval governor still maintained ultimate governmental authority over the territory (81).

US military personnel often analogized Guam to a ship, which had to be led by a single “captain” and manned by a disciplined, deferential crew (Hofschneider Reference Hofschneider2001, 32; Thompson Reference Thompson2010 235–37). The tutelage Guam would receive from US military officers was designed to train Guamanians to be sanitary, productive, and disciplined crew members and “mess attendants” (Thompson Reference Thompson2010, 227–45). US naval leaders thus believed that their ability to maintain a strategically valuable naval station on Guam was dependent on properly training Guamanians for the subordinate role they were naturally suited for: providing the physical labor needed for the USS Guam to operate.

GUAMANIAN MOBILIZATION FOR US CITIZENSHIP AFTER 1898

As early as 1901, Guamanians sought constitutional protections against arbitrary US rule and made arguments for inclusion as equals within the US polity through citizenship (Leibowitz Reference Leibowitz1989, 318; Unterman Reference Unterman2020, 822). With no formal congressional action on Guam’s status during the period of military rule, a nebulous concept of “Guamanian citizenship” emerged, which had unclear requirements and constitutional protections.Footnote ¹⁴

Congressional debate over the citizenship status of Guamanians highlighted the fear some senators had of the federal government indefinitely occupying Guam with no constitutional restraints. In 1903, Senator Augustus Octavius Bacon expressed discomfort with the potential for unchecked executive power over Guam, noting that he “dislike[d] to see upon the statute books an indefinite and unlimited power of the Executive to perform all three functions of government” (United States Congress, 1903). A former Confederate soldier and ardent supporter of Jim Crow, Bacon exemplified one strand of the racial logic that made many racist US lawmakers argue against US imperialism in the 1890s and early 1900s. These policy makers feared that the nonwhite populations living in the unincorporated territories annexed by the United States after 1898 would become racially integrated within the United States (Love Reference Love2004) and were suspicious of what they viewed as abuses of tyrannical federal power (including Reconstruction policies in the South).

During this same debate in 1903, in response to a question by Senator George Hoar about why unincorporated territories remained under military control, Senator Joseph Foraker explained that “they are both under the Navy Department; and they are there because Congress has never legislated with respect to them; and we are embarrassed all the time because there has been no act of Congress relating to them … I think it is the highest importance that we provide this legislation now.” Hoar then responded:

These passages demonstrate that some US lawmakers were worried about the possibility of the United States exerting unchecked, authoritarian power over Guam due to the ambiguous relationship between the federal government and the unincorporated territories after 1898. The citizenship status of Guamanians was central to these debates.

The Insular Cases raised, but failed to resolve, significant constitutional questions about the citizenship status of Guamanians. Should Guamanians have automatically become US citizens once the United States formally annexed Guam in 1898, despite the precedents set by the Court? If not, what about those born in Guam after the United States asserted sovereignty over the island? Did the Citizenship Clause of the Fourteenth Amendment apply in Guam if Congress decided to pass legislation that made Guamanians citizens? By leaving these questions unanswered, the Insular Cases created a space for constitutional contestation that allowed members of Guam’s Congress and US policy makers to engage in an interactive process of popular constitutionalism regarding the status of citizenship in the unincorporated territories.

Three episodes of Guamanians mobilizing and protesting for US citizenship provide examples of popular constitutionalism in the context of US empire: when Guamanians argued for US citizenship to US policy makers who traveled to Guam in the 1920s; when members of Guam’s Congress petitioned US lawmakers in Washington, DC, to make Guamanians US citizens in the mid-1930s; and when, in the immediate years after World War II, Guamanians boycotted Guam’s Congress to protest US naval rule, pressuring US lawmakers to extend US citizenship to Guam.Footnote ¹⁵

The members of the House of Representatives who attended a meeting of Guam’s Congress in 1925 received a speech by Don Atanasio T. Perez, Chief Clerk to the Governor of Guam, urging that Guamanians become US citizens:

Ramon Sablan made a similar appeal to the US delegation:

These speeches show how Guamanians made constitutional arguments that invoked theories of loyalty, justice, and inclusion to explain how they felt like US citizens but also deserved formal legal recognition (Ngai Reference Ngai2004, 1–14; Ong Reference Ong1996). This is similar to a theory of citizenship, rooted in loyalty to the federal government, that some former slaves—who did what they could in an oppressive environment to support the Union and resist the Confederacy—made in testimony to the Southern Claims Commission in the aftermath of the Civil War (Susanna Lee Reference Lee2014, 90–112).

More evidence of Guamanians engaging in popular constitutionalism can be found in a petition voted on by Guam’s Congress in 1933 (Hofschneider Reference Hofschneider2001, 86–88). Guamanians continued to make arguments for US citizenship connected to loyalty to the United States and its constitutional values. The petition asserted:

In 1937, Guamanian activists Baltasar (B. J.) Bordallo and Francisco Leon Guerrero traveled to Washington, DC, to deliver the 1933 petition to the US Congress (Unterman Reference Unterman2020, 823; Hofschneider Reference Hofschneider2001, 91–103; Hattori Reference Hattori1995, 59). Bordallo prepared a letter in which he emphasized an equality-based argument for Guamanian citizenship, explaining that Guamanians “are only concerned to the extent that our people be granted citizenship rights as have the people of Hawaii, Alaska, Puerto Rico and the Virgin Islands” (United States Congress 1937, 12).

Throughout this period of petitioning and lobbying for citizenship, US military leaders opposed changes to naval rule over Guam. They were motivated by racism, imperialistic paternalism, economic interests, and strategic concerns. A 1937 report filed by the Navy stated:

The Navy was concerned that making Guamanians citizens would lead to “a change of government,” possibly securing the right to self-government for Guamanians through true representation in Guam’s Congress, as evidenced by Commander Davis saying that “United States citizens have a part in their Government” (United States Congress 1937, 92–93). Military leaders were also concerned that the extension of citizenship to Guamanians would threaten the Navy’s plans for dealing with a possible war in the Pacific with Japan (Rogers Reference Rogers2011, 123–24, 145–46). US strategic interests thus became a major obstacle to extending citizenship to Guam as the Navy persuaded the US State Department to also oppose extension of citizenship to Guam. R. W. Flournoy, a State Department representative, explained:

Military leaders even argued that Guamanians were better off without US citizenship. As a Navy representative explained to the Senate:

Thus, while Guamanians expressed a desire for US citizenship in the 1920s and 1930s, the Navy was opposed to congressional action extending citizenship to Guamanians. Military leaders feared the potentially exacerbating effects to US strategic interests in a rapidly changing Pacific landscape from any changes in the structure of naval rule over Guam, including Guamanians’ relationship to the federal government, and by claiming that the “citizens of Guam” already benefited from the privileges (with none of the obligations) of US citizenship.

Guamanians were not persuaded. They viewed the extension of citizenship as important and meaningful, and not just for access to formal constitutional rights. These hearings highlight how citizenship can be linked to feelings of connection and solidarity within a political community. More than just a matter of rights, citizenship, as historian Stephen Kantrowitz (Reference Kantrowitz2012, 33) explains in his history of free Black people in the antebellum United States, can be “a way of describing people’s enmeshment in a common world of human joy and struggle.” Leon Guerrero told senators that Guamanians sought citizenship “[t]o have a sense of security and to have something to transmit to our posterity to live up to in accordance with what we have learned and not to be this,” indicating a book entitled A Man without a Country (United States Congress 1937, 57–58). There was thus a meaningful connection between theories of identity, inclusion, and “enmeshment” within a political community attached to US citizenship for Guamanians.

Bordallo also refuted the idea that Guamanians enjoyed the privileges of U.S. citizenship.

Bordallo disputed the Navy’s claim that Guamanians received free medical services and education, and he gave examples of how the Navy hindered the economic development of Guam (United States Congress 1937, 13).Footnote ¹⁷ Bordallo ended his letter with the following passage:

Bordallo’s letter and testimony during these hearings provide more evidence of how Guamanians engaged in popular constitutionalism when making claims to US citizenship, emphasizing principles of equality, representation, self-government, republicanism, political efficacy, separation of powers, and loyalty to challenge the authoritarian relationship between the United States and Guam.

Swayed by the Navy’s concern with national strategic interests, Congress refused to extend citizenship to Guam. The legislation that would have conferred citizenship to Guamanians was eventually abandoned “on security grounds … outside the presence of the Guamanians and off the record” (Leibowitz Reference Leibowitz1989, 321).Footnote ¹⁸ In response, Bordallo offered this statement:

In this passage, Bordallo relies on principles of self-rule and fundamental rights and privileges to highlight the authoritarian nature of US rule over Guam. Bordallo also makes an argument against the legitimacy of a caste system in the United States, claiming that the Constitution prohibits the federal government from maintaining indefinite plenary sovereignty over a territory and governing people as “subjects.” Here, Bordallo echoes constitutional arguments against US imperialism made by US policy makers and academics in law review articles in the 1890s (see Sparrow Reference Sparrow2006; Love Reference Love2004).

The United States continued its authoritarian rule over Guam until World War II, when Japan invaded and then occupied the territory from December 1941 to July 1944. Japanese rule over Guam during World War II was cruel and dehumanizing: Chamorus were forced into concentration camps and manual labor, with “[e]xecutions, beatings and rapes … common,” as “the Japanese military treated Guam’s Chamorus as an enemy population” (Unterman Reference Unterman2020, 824).Footnote ¹⁹ When Guam was liberated from Japanese control in 1944, the physical destruction to the island meant that most of the remaining Chamoru population, once released from Japanese concentration camps, had to be relocated from their homes (Leibowitz Reference Leibowitz1989, 312; Maga Reference Maga1988, 197).

When the United States regained control of Guam in July 1944, a large area of the island was taken over for military purposes (Maga Reference Maga1988, 197; Leibowitz Reference Leibowitz1989, 312; Unterman Reference Unterman2020, 824); by 1947 the Navy occupied over half the land on the island (Hofschneider Reference Hofschneider2001, 127–30). The post-WWII policy of the United States was to strengthen Guam as a naval base to support military action in the Pacific. Guamanians protested the Navy’s condemnation of land, especially for recreational uses that could only be used by members of the military. US takeover of so much of Guamanian land was a major factor in a new wave of mobilization for citizenship, as Guamanians hoped that citizenship would allow them to better protect their individual property rights against US military incursions (Hofschneider Reference Hofschneider2001, 126–30; Diaz Reference Diaz2004).Footnote ²⁰

GUAMANIAN MOBILIZATION AFTER WORLD WAR II AND THE ORGANIC ACT OF 1950: EXTENSION OF US CITIZENSHIP TO GUAM

Members of Guam’s Congress continued to make claims for citizenship in the immediate years after World War II, leading Congress to recognize Guamanians as US citizens in 1950. The causes for the passage of the 1950 Organic Act,Footnote ²¹ which established a civilian territorial government and extended US citizenship to Guam, are “multifarious” (Hattori Reference Hattori1995, 24). To highlight the role that popular constitutionalism played in this achievement, I focus on two major influences. The first is Guamanian mobilization and protest in the immediate years after World War II, which culminated in a walkout by members of the Guam Congress in 1949. The second is Cold War politics, as US lawmakers recognized the propaganda value of extending citizenship to Guamanians in the United States’ ideological struggle against the Soviet Union.

When US martial law ended in May 1946, leaders of Guam’s Congress again demanded US citizenship (Hofschneider Reference Hofschneider2001, 116–17; Hattori Reference Hattori1995). In January 1947, Guam’s House of Council and House of Assembly passed a Joint Resolution that petitioned the US president, Congress, and Navy for citizenship (Hofschneider Reference Hofschneider2001, 130). In December 1948, the Guam House of Council again petitioned the United States to extend citizenship to Guamanians (Hofschneider Reference Hofschneider2001, 132–36). By March 1949, a draft of organic legislation that would grant Guamanians citizenship was passed unanimously by both chambers of Guam’s Congress (Hofschneider Reference Hofschneider2001, 132–36; Hattori Reference Hattori1995).

The final event that led to the Guam Congress walkout in 1949 was Governor Charles Pownall’s interference with the House of Assembly’s ability to investigate, provide oversight, and hold hearings regarding complaints that the Navy had been selling business licenses to non-Guamanians (Hofschneider Reference Hofschneider2001, 145–47; Hattori Reference Hattori1995). In March 1949, when Governor Pownall refused to allow Guam’s Congress the power to execute an arrest for someone it held in contempt, the House of Assembly unanimously voted to “adjourn at this time and not to reconvene until such time as this body receives a reply on the action of the Congress of the United States relative to the Organic Act for Guam as passed by both Houses of the Guam Congress” (Guam Congress Reference Congress1949, 5, quoted in Hofschneider 147–48). Speaker Antonio B. Won Pat gave the following explanation for why the Guam Congress decided to engage in a walkout:

The month-long walkout was highly effective. President Harry Truman ordered the Navy to turn over the governance of Guam to the Department of Interior within a year, which would eventually lead Congress to pass the 1950 Organic Act.

Further evidence of Guamanian mobilization and protest comes from the hearings of the Committee of Public Lands of the US House of Representatives, which were held in Guam’s Congress in November 1949 (United States Congress 1949, 21–23; see Hofschneider Reference Hofschneider2001, 152). One member of Guam’s Congress testified that Guamanians had mobilized to demand citizenship

Another testified that

These public speeches in Guam’s Congress demonstrate that Guamanians continued to mobilize and protest for US citizenship in the immediate years after World War II through popular constitutionalism, making arguments rooted in constitutional principles of freedom of the press, free speech, liberty and equality, political representation, and due process.

Hearings held in the US Senate in 1950 to debate an organic act for Guam highlight another influence that helps explain why citizenship was extended to Guam in the post-WWII era: US military personnel and lawmakers viewed the extension of citizenship to Guamanians as a valuable Cold War propaganda tool. US policy makers recognized that making Guamanians citizens could improve the United States’ image on the global stage, which would strengthen its geopolitical interests. Carlton Skinner, the first civilian Governor of Guam, testified that “unfortunately … for the reputation of the United States as a democratic country with a republican form of government” Guamanians had been denied citizenship since 1898, but that “[p]assage of this bill will meet with universal acclaim” (United States Congress 1950, 39–40). He emphasized that

The recognition of the propaganda value of extending citizenship to Guam also helps explain why the Navy had altered its position by 1950 and strongly endorsed extending US citizenship to Guam. John L. Sullivan, the Under Secretary of the Navy, explained why the Navy changed its policy regarding the conferral of citizenship to Guam in hearings from 1947:

Skinner also believed an organic act for Guam could economically benefit the United States:

Another factor that helps explain why members of Congress decided to extend citizenship to Guam was the belief that they could do so without undermining US sovereign authority over Guam. William Lemke, a representative from North Dakota, explained that he “can see no danger of abuse [of extending citizenship to Guam], because the President, by appointing the Governor, who also has veto power, and then also by appointing the judiciary, fully protects any interests that the United States, the mainland, may have” (United States Congress 1950, 40). The extension of citizenship, Lemke went on to explain, still allows the federal government to maintain sovereignty over Guam’s government over any issue (United States Congress 1950, 41–42). Members of Congress were thus assured by military leaders that US authority over Guam would not be subverted despite the creation of a civil government for Guam and the extension of citizenship to Guamanians.

During these hearings, it was also made clear that the enactment of an organic act for Guam would not mean it that was to become a state, but that it was to remain as an unincorporated territory. As Governor Skinner explained:

Extending citizenship to Guam thus allowed for the United States to portray itself as egalitarian, nonracist, and the global leader of democracy and freedom while not altering the existing power structure between Guam, as a subordinate, occupied territory, and the US federal government.Footnote ²² The legal history of citizenship legislation for Guam illustrates that the formal extension of citizenship does not by itself alter the imperial relationship between the United States and its unincorporated territories.