TERRITORIAL GOVERNMENTS. The Constitution empowers Congress to govern the territory of the United States and to admit new states into the Union. However, territorial governments in the United States predate the Constitution. The Congress of the Confederation enacted the Northwest Ordinance of 1787 for the region north of the Ohio River and westward to the Mississippi. Under its terms the territories could look forward to eventual statehood on terms of equality with the original states. As modified by congressional enactments after the adoption of the Constitution in 1789, the Ordinance set forth the general framework of government for the territories that ultimately achieved statehood, beginning with Tennessee in 1796 and ending, most recently, with Alaska and Hawaii in 1959.
The Ordinance provided for three stages of government. Congress established each territorial government by way of an organic act, a federal law serving as a temporary constitution. In the initial or "district" stage, the president, with the consent of the Senate, appointed a governor, a secretary, and three judges. The governor served as head of the militia and superintendent of Indian affairs. He was authorized to establish townships and counties, appoint their officials, and, in conjunction with the judges, adopt laws for the territory.
The second stage began when the territory attained a population of at least 5,000 free adult males. The inhabitants could then establish a legislature consisting of a house of representatives elected for two years and a legislative council appointed by the president to serve for five years. The house and council would choose a nonvoting delegate to Congress. The governor enjoyed the authority to convene, adjourn, and dissolve the legislature, and could exercise a veto over legislative enactments. Congress retained the power to nullify the acts of territorial legislatures.
Finally, when the total population of a territory reached 60,000, it could petition Congress for admission into the Union. Admission was not automatic; indeed, the process often became entangled in struggles between partisan or sectional interests. For example, in the decades preceding the Civil War, Congress balanced the admission of each free state with the admission of a slave state. Once it decided to admit a territory, Congress would pass an enabling act authorizing the people of the territory to adopt a permanent state constitution and government.
Over the course of the nineteenth century Congress further modified the pattern set forth in the Ordinance. For instance, in later territories the governor, secretary, and judges were appointed for four years, and the electorate chose the members of the council and the nonvoting congressional delegate, who served for two-year terms. The governor shared appointive power with the council, and a two-thirds vote of the legislature could override his veto. The legislature apportioned itself, fixed the qualifications for suffrage, and organized judicial districts. Most local officials were elected. Legislative and gubernatorial acts were still subject to the approval of Congress. Judicial power was placed in supreme, superior, district, probate, and justice-of-the-peace courts.
The turn of the twentieth century ushered in a new period in territorial governance. In 1898, the United States won the Spanish-American War and took sovereignty over the Philippines, Puerto Rico, and Guam. It established governments in these territories that borrowed elements from the Ordinance, but varied widely according to local circumstances. For instance, under Puerto Rico's Organic Act, passed by Congress in 1900, the president appointed the governor and legislative council, while the electorate chose the members of a lower legislative chamber. Yet in Guam, Congress did not even pass an organic act until 1950; until then, the navy administered the territory.
The acquisition of these islands triggered a nationwide debate over whether Congress had an obligation to admit all U.S. territories into statehood eventually, or whether it could govern some territories as colonies indefinitely. Opposition to statehood for the former Spanish colonies was based in part on the view that their inhabitants were too different, racially and culturally, from the American mainstream. In the rhetoric of the time, the question was whether the Constitution "followed the flag" to the new territories. In the Insular Cases of 1901, the U.S. Supreme Court held that it did not. Distinguishing for the first time between incorporated and unincorporated territories, the Court explained that all territories acquired prior to 1898 (along with Hawaii, which became a U.S. territory in 1898) had been incorporated into the United States, while the new territories remained unincorporated. According to the Court, the decision whether to incorporate a territory was entirely up to Congress.
The incorporated/unincorporated distinction had two consequences. First, unincorporated territories were not considered to be on a path to statehood. Second, in legislating for incorporated territories, Congress was bound by all constitutional provisions not obviously inapplicable, but in the unincorporated territories, Congress was bound to observe only the "fundamental" guarantees of the Constitution. Neither the Court nor Congress attempted to specify precisely what these fundamental guarantees included. Later, the Supreme Court decided that such guarantees as the right to a trial by jury and an indictment by grand jury were not among these fundamental rights, but most provisions of the Bill of Rights were held applicable.
At the turn of the twenty-first century, the U.S. had five territories, none of which was incorporated: the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands (CNMI), the U.S. Virgin Islands, Guam, and American Samoa. Although federal laws generally apply in the territories, and their inhabitants are U.S. citizens (or, in American Samoa, U.S. nationals), they cannot vote in presidential elections and do not have senators or representatives in the federal government. Instead, they elect nonvoting delegates to Congress, except for the CNMI, which simply sends a representative to Washington, D.C. The Departments of War, State, Interior, and the Navy have all played a role in the administration of territories. In 1873, Congress conferred upon the Department of the Interior statutory jurisdiction over territorial governments, but after 1898, Guam was assigned to the Navy Department, and the Philippines and Puerto Rico to the War Department. In 1934 President Franklin D. Roosevelt created by executive order the Division of Territories and Island Possessions within the Department of the Interior. In 1950 this division became the Office of Territories. In the early 2000s it was known as the Office of Insular Affairs.
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Van Cleve, Ruth G. The Office of Territorial Affairs. New York: Praeger, 1974.