The Dormant Territorial Clause

Authors

• Anthony M. Ciolli

Document Type

Article

Abstract

(Excerpt)

This Article explores the metes and bounds of the Dormant Territorial Clause, that is, the implicit constitutional limitation on state authority to address issues that implicate United States territories but otherwise fall within the traditional purview of state government. Part I explores the threshold question of whether a Dormant Territorial Clause even exists, ultimately concluding that the explicit positive grant of power to Congress to make needful rules and regulations for the territories must restrict the authority of state governments, even when Congress has not expressly acted. Part II then ascertains the principles that should apply to a Dormant Territorial Clause analysis, proposing that the primary inquiry must be whether the state action unduly interferes with or usurps the power of Congress or the territorial governments to which it has delegated rulemaking authority. Finally, Part III considers whether the Dormant Territorial Clause permits or prohibits certain actions by state governments, such as the state-level absentee voting legislation endorsed in Segovia; the enforceability of territorial court judgments in state courts as occurred in Hailey and other cases; and state-level determinations of birthright citizenship which differ from those made by Congress or federal courts.