North Korea's threats to Guam highlight the unfairness of its territorial status

North Korea is purportedly considering an attack on the U.S. territory of Guam. The Trump administration is right to take that threat seriously and to respond proportionally. Indeed, Pyongyang’s announcement that it is “carefully examining” whether to strike Guam is just the latest manifestation of Kim Jong Un’s escalating jingoism. 

Guam is a crucial strategic outpost for the United States. The island hosts key U.S. military installations, thereby anchoring U.S. power in the western Pacific. Guam is also home to approximately 160,000 American citizens, mostly civilians. Hence, to Pyongyang, Guam is on the frontline of U.S.-North Korea tensions, one and the same as the U.S. mainland.

But North Korean missiles aren’t the only threats to life, liberty, and the pursuit of happiness that Guamanians face.

Like other American citizens living in unincorporated territories of the United States, Guamanians face the same security threats as those living within state boundaries. But unlike other American citizens, those living in unincorporated territories are systematically deprived of fundamental rights that their citizenship should entitle them to. 

Although residents of unincorporated territories elect delegates to the U.S. House of Representatives, those delegates aren’t permitted to vote on the passage of legislation. Thus, the elected representatives of Americans living in unincorporated territories are effectively stripped of any real power to legislate in the interests of their constituents. That festering injustice—born of America’s nineteenth century misadventures in colonialism—deprives Americans living in unincorporated territories of their right to representation. That not only silences their voice in national affairs, including national security and defense policy, but arbitrarily relegates them to second-tier status relative to other citizens.

At the heart of that injustice is a longstanding misinterpretation of the Constitution. Following the Spanish-American War, the United States acquired several territories from Spain, including Guam and Puerto Rico. In a series of controversial decisions known as the Insular Cases, the Supreme Court established the doctrine of territorial incorporation, thereby depriving those living in unincorporated territories of many of the constitutional protections that their peers on the mainland were entitled to. Unfortunately, that miscarriage of justice persists to this day, notwithstanding the fact that those born or naturalized in unincorporated territories are now U.S. citizens.

Citizenship without representation is like a promise without a guarantee. And Congress hasn’t always upheld its responsibility to see to the interests of those living in unincorporated territories—that is, American citizens without full representation in Congress. Fortuitously, the founders left clues for how we should understand this apparent conundrum.

In vesting legislative power in Congress, the founders created a House of Representatives composed of members from “the several States.” A plain-language reading of that text might be understood to mean that statehood is a necessary qualification for congressional representation. Yet such a narrow reading fundamentally ignores the context in which that language appears.

Congress was created on behalf of all Americans, not just those living within states. Indeed, the opening words of America’s foundational charter read “We the People,” without reference to the several states. That silence speaks volumes.

More importantly, those who drafted and ratified the Constitution couldn’t have foreseen a day when a significant number of American citizens would be living in unincorporated territories. Indeed, such a concept was foreign to the founders and their contemporaries. Thus, by continuing to deprive the unincorporated territories of representation, we perpetuate an injustice that sullies our nation in contravention of the founders' intent.

The unincorporated territories of the United States have gone without full representation for too long. Fortunately, Congress has the authority right that wrong by initiating a constitutional amendment to grant full congressional representation to Americans living in unincorporated territories. The time for such action has come.

North Korea poses a potentially existential threat to Guam, placing Guamanians in the same jeopardy as any other American citizen whose life and liberty is threatened by a hostile foe. We shouldn’t compound that danger by failing to ensure Guamanians enjoy the same representation as any other American citizen.

Scott A. Olson is a former congressional staffer and a recent graduate of the University of Oregon School of Law. He is a Political Partner of the Truman National Security Project. Follow him @SOlsonOR. Views expressed are his own.

The views expressed by this author are their own and are not the views of The Hill.