Article IV, Section 3, of the Constitution empowers Congress “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” The current territories of the United States include Puerto Rico and some Virgin Islands in the Caribbean Ocean, plus Guam, American Samoa, the Commonwealth of Northern Mariana Islands, and other islands in the Pacific Ocean. The governments on most of these islands are organized under congressional legislation, but some territories remain unorganized in this sense. They are administered by the secretary of the interior and overseen by Congress, usually with defensive purposes in mind.
Some territories enjoy greater autonomy than others. Puerto Rico has a constitution that was popularly ratified and approved by Congress in 1952. The constitution defines the powers and responsibilities of the commonwealth’s legislature, executive, and judiciary, and enumerates the rights and liberties of all Puerto Ricans vis-à-vis this government. Except for the fact that Puerto Ricans, who are citizens of the United States, cannot vote in presidential elections, do not have voting representation in Congress, and are not obliged to pay federal taxes, the commonwealth functions much like state governments. Of course, this could change; Congress is free to redefine the status of Puerto Rico, whereas states’ position in the union is constitutionally guaranteed.
Guam, though not a commonwealth, is an organized territory of great military importance to the United States. The people of Guam elect a unicameral legislature and a governor who appoints judges. So do the people of another organized territory, the U.S. Virgin Islands, which was strategically important when the United States controlled the Panama Canal. The governments of these territories control internal affairs, subject to oversight by the secretary of the interior, acting on behalf of Congress. The Virgin Islands seem content with the arrangement, but Guam has pressed for greater autonomy, which Congress and the president have so far refused because it could limit military options in the Pacific Ocean.
American Samoa is an unorganized territory; Congress has not passed legislation establishing a territorial government and defining its relation to the federal government. Authority for the territory was delegated to the secretary of the interior, who authorized the drafting of a constitution under which American Samoa now operates. The constitution provides for the direct election of a governor and the lower chamber of the legislature. The upper chamber is chosen by county councils, with top appointments to the judiciary made by the secretary of the interior. The powers of this government are limited; indeed, the government is currently in financial receivership, with Congress directly overseeing plans for recovery and economic development.
Unlike the states, none of the insular commonwealths or territories is incorporated under the Constitution of the United States. Residents of territories are, or can become, U.S. citizens, but they may not vote in presidential elections. Their elected delegates in the House of Representatives cannot vote on pending legislation, and there are no territorial senators. Neither are territorial residents entitled to the full protection of the Bill of Rights; only their fundamental liberties, for example freedom of expression and religion, are protected from congressional interference. Thus, the right to a trial by jury is not constitutionally guaranteed in the territories, according to the Supreme Court, although organic acts of legislation may include protection for this right and other “non-fundamental” liberties. Statehood would confer all the benefits of incorporation, but of the current territories of the United States, only Puerto Rico is a potential candidate for admission to the union.
T. Alexander Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Cambridge, MA: Harvard University Press, 2002); and U.S. Department of the Interior, Office of Insular Affairs, A Report on the State of the Islands (Washington, DC: U.S. Department of the Interior, 1999), http://www.doi.gov/oia/StateIsland/report99.html.