Guam, my home island, is “Where America’s Day Begins,” highlighting both its strategic location in the western Pacific and its relationship with the United States. Guam is an unincorporated, organized territory of the United States: unincorporated because it was not considered by Congress “on the path to statehood” (in contrast to incorporated territories that were “destined for statehood from the time of acquisition”), and organized because its civil system of government was created by an organic act of Congress. The Organic Act of Guam (the Organic Act), signed into law by President Harry S. Truman in 1950, “serves the function of a constitution for Guam.” For many, especially those from states with long-established constitutions, it may seem unusual that congressional legislation serves as a constitution. It may be even more surprising to learn that the Organic Act was celebrated as a milestone in Guam’s political development. How can federal law be considered equivalent to an expression of self-governance? Why hasn’t Guam adopted its own constitution? To answer these questions, we must examine the historical context of Guam’s relationship with the United States.
After Ferdinand Magellan’s arrival in 1521, Guam remained under Spanish rule for over three centuries. Following Spain’s defeat in the Spanish-American War, Guam was ceded to the United States under the Treaty of Paris in 1898 and placed under the control of the U.S. Department of the Navy. The naval secretary was mandated “to take such steps as may be necessary to establish the authority of the United States and to give it necessary protection and government.” The following year, U.S. Naval Captain Richard P. Leary, who would become the first governor of Guam, arrived on the USS Yosemite. His coming ushered in five decades of plenary governance by the U.S. Navy, interrupted only by nearly three years of Japanese occupation during World War II. Despite being under the purview of a democratic, rather than imperial, nation, naval governors continued to exert virtually absolute authority over the island and its residents. The first orders issued by Capt. Leary included banning the sale and importation of “intoxicating spirituous liquors,” mandating that persons “living together out of the bonds of wedlock” obtain a marriage license and be married in a civil or church ceremony, and requiring unemployed inhabitants to plant “corn, rice, coffee, cocoa, sweet potatoes, or other fruits and vegetables” and “have at least twelve hens, one cock, and one sow.”
During the years of the naval administration, life on Guam often depended on the whims and predilections of each naval governor. One exception to this rigid governance was Captain Willis W. Bradley Jr., who served as governor of Guam from 1929 to 1931. He advocated for granting Guam residents U.S. citizenship and proclaimed a Bill of Rights for Guam in 1930. Although neither recommendation was approved by Congress, Bradley was so respected that the people of Guam sought to have him act as Guam’s representative to the United States. The naval administration would continue for another 20 years, until control of Guam was transferred from the U.S. Navy to the Department of the Interior in 1949, paving the way for civilian governance under the Organic Act. Against the backdrop of the naval administration, it is understandable why the Organic Act was hailed as a step toward autonomy for the people of Guam.
The Organic Act established a civil government for Guam: articulating the powers and duties of a civilian chief executive (albeit one appointed by the president), defining the size of the legislative body and the qualifications of its members, and providing for the creation of a local court system under Guam law. The Organic Act also granted U.S. citizenship to those living in and born on Guam, a policy change that had long been sought by Guam residents. The Organic Act even included a Bill of Rights, though as an unincorporated territory, the people of Guam were not entitled to all the rights guaranteed in the U.S. Constitution. Specifically, the Bill of Rights in the Organic Act excluded the Second Amendment, the Fifth Amendment right to a grand jury, the Sixth Amendment right to a jury trial, and the Seventh Amendment right to a jury trial.
Recognizing the need for greater self-governance, Congress amended the Organic Act to allow for the election of the governor and lieutenant governor. Another milestone was the Mink Amendment, introduced by Hawai’i Congresswoman Patsy T. Mink, which extended certain constitutional provisions to Guam to “the extent that they have not been previously extended to that territory” and further provided that these provisions “shall have the same force and effect there as in the United States or in any State of the United States.” The Mink Amendment added a new subsection § 5(u) to the Organic Act, thereby granting constitutional protections regarding the writ of habeas corpus and the prohibition against ex post facto laws in Article I; the Full Faith and Credit Clause and Privileges and Immunities Clause of Article IV; “the first to ninth amendments inclusive”; the Fourteenth Amendment’s Privileges and Immunities Clause, Due Process Clause, and Equal Protection Clause; and the Fifteenth and Nineteenth Amendments. Yet these changes underscored a significant limitation of the Organic Act—any future amendments to Guam’s governance could only be brought and decided by people outside of Guam, in a forum thousands of miles away.
In 1968, the Ninth Guam Legislature initiated a Constitutional Convention to comprehensively review the Organic Act of Guam “so that the Congress of the United States can be advised in detail under a mandate from the people of Guam themselves as to what changes should be made in Guam territorial constitution, its Organic Act.” Over the next two years, the 43 delegates to the Convention held plenary sessions, extensive public meetings, and numerous committee sessions. They introduced 81 propositions, including replacing the at-large system of election of senators with legislatively created districts, imposing a 20-year U.S. citizenship and 10-year continuous residency requirement for candidates for governor and lieutenant governor, and requiring all elected officials to file financial reports. Other proposals included creating a government civil rights commission; granting the rights of initiative, referendum, and recall to Guam voters; and adding the right to an unpolluted environment to the Bill of Rights. The final draft recommended over 30 amendments to the Organic Act, but because the convention was initiated in Guam without Congress’s approval, none were adopted. The work of the First Constitutional Convention proved fruitless.
In 1976, Congress formally authorized Guam to “to draft, within the existing territorial-Federal relationship, [a] constitution[] for the local self-government of the People of . . . Guam.” A new Constitutional Convention convened, and Guam senators passed enacted local legislation provided for the process, qualifications of delegates, funding, and other administrative matters. Thirty-two delegates were appointed and a total of 46 plenary meetings were held between July 1 and December 15, 1977. The delegates introduced 459 propositions, from establishing English and the native Chamoru language as the official languages of Guam, to requiring candidates for governor and lieutenant governor to speak the official languages fluently, to prohibiting mandated retirement based on a specific age, to creating voting districts for the election of senators. The initial review of propositions took place at the committee level, which reported out to the entire body for consideration and debate. Public feedback was obtained through public hearings conducted in all 19 villages, at the Legislative Hall, at the island’s public and private high schools, and at the University of Guam. After months of debate, “bitter divisions on certain issues,” and “controversial propositions” submitted and debated, the delegates unanimously passed the constitution. The Convention also proposed a “Guam Federal Relations Act” to replace the Organic Act of Guam and to implement the constitution.
The draft Constitution of Guam was presented to President Jimmy Carter and Department of the Interior Secretary Cecil Andrus on March 1, 1978. There were serious concerns raised regarding provisions that directly related to territorial-federal relations, including the fact that the constitution “does not explicitly recognize sovereignty of the United States over Guam or the supremacy of its laws,” contrary to the express requirement of the enabling act, and that it sought to amend the provision “which imposes public debt limitations on the territory,” which was concerning “[i]n light of the territory’s fragile local economy and the continued financial responsibility of the Federal Government for Guam.” Further, the constitution expanded the Bill of Rights from those in the Organic Act and failed to provide for congressional approval of future amendments. Notwithstanding these concerns, the constitution received federal government approval, but as a final blow to the delegates of the Second Constitutional Convention, it was ultimately rejected by the local electorate.
With the failed outcomes of two constitutional conventions, the Supreme Court of Guam has affirmed that “[u]ntil Guam creates its own Constitution, the Organic Act of Guam is the equivalent of Guam’s Constitution.” We in Guam recognize that any change to our governance requires, literally, an act of Congress.
When the Organic Act established Guam’s court system, it provided that judicial authority would be vested in the federal District Court of Guam, which would have the same jurisdiction as other district courts of the United States and “such appellate jurisdiction as the legislature may determine.” It also vested judicial authority “in any such court or courts as may have been or may be hereafter established by the laws of Guam” and stated that “jurisdiction of and the procedure in the courts of Guam other than the District Court of Guam shall be prescribed by the laws of Guam.”
In 1974, the Twelfth Guam Legislature enacted legislation replacing the pre–
Organic Act court system with a trial court, known as the Superior Court of Guam, and the Supreme Court of Guam, to hear appeals from the Superior Court. Judge Joaquin C. Perez, then Chief Judge of the Island Court of Guam, was appointed Chief Justice of the Supreme Court, but his tenure was short-lived. The newly created Guam Supreme Court was abolished when the U.S. Supreme Court held, in Guam v. Olsen that the Guam Legislature could not divest the District Court of Guam of appellate jurisdiction and transfer appellate jurisdiction to the locally created appellate court. There were amendments in 1984 that attempted to clarify the status of Guam’s judicial branch, but the Organic Act continued to give the Guam legislature authority to create the courts and fashioned an atypical process of intermediate federal review that required, for the first 15 years after creation, that final rulings from Guam’s highest appellate court be heard by the Ninth Circuit Court by certiorari. When the Supreme Court of Guam was (re)established by local legislation in 1993, it remained vulnerable to legislative repeal. More than a decade would pass before Guam would have a truly equal and independent judiciary, with the Organic Act amendment confirming the Supreme Court of Guam as the highest court of the judicial branch of Guam; articulating the court’s original, appellate, and supervisory jurisdiction; and removing the requirement of federal court review.
Since 2004, the Organic Act has undergone few amendments, and on a superficial level, it does not directly affect day-to-day life in Guam: Hospitals operate, tourists arrive on planes and cruise ships, and residents buy gas and groceries. But we cannot escape that Guam exists as a political entity because its relationship to the United States flows from the Organic Act.
In 2024, in a landmark case, the Supreme Court of Guam addressed a post-conviction
cruel-and-unusual punishment claim and held that “as the court of last resort for Guam, this court is empowered to independently and definitively interpret provisions of the Organic Act Bill of Rights.” We conducted a critical analysis of the purpose and effect of the 1968 Mink Amendment and the Ninth Circuit case of Guam v. Guerrero before ultimately rejecting Guerrero, concluding that it was unsupported by law. We disagreed with the Ninth Circuit’s flawed interpretation, reviewed the legislative history of the Mink Amendment, and concluded that Congress had intended to formulate a two-tiered system of rights, with the Eighth Amendment establishing the floor, below which the Organic Act Bill of Rights could not go. In People v. Adriatico, we ultimately held that the term “cruel and unusual punishment” in the Organic Act Bill of Rights should be interpreted “with due regard for the historical, governmental, and cultural values of Guam” and that “Guam’s distinctive characteristics support departure” from federal precedent regarding sentences of mandatory life without parole for youthful offenders.
Would we have reached a different outcome in Adriatico if the protection against cruel and unusual punishment had been in a constitution rather than the Organic Act? I do not believe so, and one scholar believes there is no practical distinction because Congress “modeled territorial organic acts after state constitutions [which] is impressive evidence of its intent for territorial courts to interpret territorial organic acts in the same manner as state courts interpreting state constitutions. . . . [T]he clear intent of Congress is for the territorial courts to partake in the same innovation and experimentation—including in interpreting their territorial constitutions and organic acts—as occurs in the states.” While I agree with this interpretation regarding a court’s authority, I must disagree that federal legislation is the equivalent to a constitution. A constitution must express a jurisdiction’s “historical, governmental, and cultural values” and its “distinctive characteristics.” While Guam’s judiciary has used its autonomy effectively, the reality remains: Self-governance on the island is still dictated by federal law, not by a constitution created and ratified by the people of Guam.
