The Supreme Court recently invoked “our color-blind constitution.” allen vs milligan It also changes the standard of liability in Voting Rights Act litigation. Days later, the Department of Justice’s Office of General Counsel relied on this language to narrow liability for workplace discrimination under Title VII of the Civil Rights Act. No matter what anyone thinks about these developments, “our color-blind constitution” is no longer just a slogan. It is now being invoked as a rule of law across the United States.

The idea that the U.S. Constitution is “colorblind,” meaning that the government cannot favor or disfavor individuals based on race or ancestry, originated in Justice John Marshall Harlan’s famous dissent. Plessy vs. Ferguson. Harlan was the lone vote against the Louisiana law mandating racial segregation in railroad cars, writing, “Our Constitution is colorblind and does not recognize or condone the classes of our people.” The NAACP and Chief Counsel Thurgood Marshall acknowledged colorblindness in briefs, but Brown v. Board of Educationtoday this theory is arguably most closely associated with opposition to affirmative action and race-based congressional districts. Although the Supreme Court recently issued several opinions consistent with this theory, its emergency docket decision Allen This is the first time the court has referred to a “color-blind constitution” in its majority opinion.

The new legal force of this term should require federal courts and the executive branch to confront old constitutional questions. How will the now allegedly color-blind Constitution apply in U.S. territories where some laws still cover classifications closely tied to blood volume, ancestry, inherited wealth, and racial and indigenous identity?

This is not an academic question. In American Samoa, most land cannot be transferred to anyone with less than half Samoan blood. Even children cannot inherit land from their parents unless they meet the requirements of this blood quantum. Territorial senators must be registered and are therefore not publicly elected. master (head of the family) and is elected by others. master — and only people with half Samoan blood can hold office. master. moreover, master Titles are hereditary, and the law requires that men take precedence over women, unless there is evidence of conflicting custom within a particular family. And the Northern Mariana Islands’ territorial constitution restricts long-term land interests to people of Northern Mariana descent, a category clearly tied to Chamorro or Carolinian blood.

These laws are not hidden relics. Also, just because no one challenged them doesn’t mean they survived. All courts (federal or territorial) that review these race-based laws have declared them constitutional or otherwise viewed them favorably.

The result is a legal situation that surprises many Americans. Under the same American flag, territorial governments may use explicit classifications based on race or ancestry that it would be constitutionally inconceivable for a nation to adopt.

This contradiction is primarily due to the text of the Constitution. The 14th Amendment is the clause most often associated with color-blind constitutions, but it does not say that all governments in the United States must have equal protection of the laws. Rather, it says that no “nation” should deny it. This language easily covers every state from California to Maine. But what is the textual basis for applying the Fourteenth Amendment to the nearly 4 million Americans who live in territories such as American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands rather than states?

The usual debate about whether the Constitution is colorblind does not explain the actual text of the Fourteenth Amendment. Even ardent originalists like Justice Clarence Thomas wrote that the Fourteenth Amendment “guarantees equal protection to all citizens, without regard to race,” without noting that its own clause refers only to the states and not to the territories.

It may be tempting to interpret “state” in the Fourteenth Amendment to mean “state or territory.” However, there is no evidence that the framers had such an intention, especially when race-based laws existed before and after the ratification of the Reconstruction Amendments in various U.S. territories, such as free colonies and all-black towns. And if “state” in the Fourteenth Amendment means “state or territory,” shouldn’t that interpretation also extend to the provisions of the Constitution that allow states to receive voting representation in Congress and the Electoral College?

Secondary complications are island country casean early 20th century decision in which the Supreme Court invented the doctrine of territorial incorporation and created a distinction between so-called “incorporated” and “unincorporated” territory. of island country case The Supreme Court considered the “semi-civilized,” “savage,” “ignorant, lawless,” and “alien peoples” of Puerto Rico and other unincorporated territories, the “semi-civilized” peoples who the Supreme Court believed Congress did not intend to eventually establish as a nation. , the Supreme Court was openly racist, relying on the “white man’s burden” and the now-discredited theory of racial inferiority to withhold many constitutional rights of “savages,” “ignorant and lawless,” and “alien races.”

Although no serious defender of the Constitution would support this reasoning, it has no basis in the text and is probably a textbook example of judges legislating in court. However, although the Supreme Court rejected this reasoning and cautioned against its extension, the court stopped short of overturning this decision. island country case. This leaves courts in a difficult position. Although this doctrine is indefensible, it remains part of the legal system governing the territory.

This is the real conflict. The phrase “our color-blind constitution” hides a series of geographical problems. Who does “we” include? Which government is being held captive? And does colorblindness apply everywhere the United States exercises sovereignty, or only where constitutional provisions or doctrines make the answer easier?

As a matter of policy, the answer may seem obvious. A supposedly color-blind Constitution should not allow for explicit classification based on race or ancestry under the American flag. However, the Constitution cannot be resolved simply by policy preferences. For an originalist, the idea of ​​a color-blind Constitution must be consistent with the text of the Fourteenth Amendment as originally understood, speaking of “states” rather than territories. Also, if we focus on precedent, island country case Although their reasoning is indefensible, it complicates the analysis. And if we value local autonomy, we cannot ignore laws designed to preserve Indigenous lands and cultures as if they were no different from the usual racial spoils system.

Before judges and federal officials invoke a “colorblind Constitution” as if it provides the perfect answer to all questions about race, we must confront the constitutional territorial blind spots. The four million people living in U.S. territories are not outside the scope of the U.S. constitutional order. But they also do not fit neatly into doctrines built around the state. We should stop acting as if this tension has already been resolved.

Anthony M. Cioli is a faculty member at St. Mary’s University School of Law. He previously served as President of the Virgin Islands Bar Association and as Special Assistant to the Chief Justice of the Virgin Islands. The views expressed herein are solely his own and do not represent the views of the Virgin Islands Judicial Department, the Virgin Islands Bar Association, or any of its officers or employees.

Recommended Citation: Anthony Ciolli, Territorial blind spots in our color-blind constitutionSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (July 21, 2026), https://statecourtreport.org/our-work/analysis-opinion/our-colorblind-constitutions-territorial-blind-spot