INTRODUCTION TO TAIWAN'S LEGAL STATUS

  APPLICATION OF THE CONSTITUTION'S BILL OF RIGHTS  
  in US overseas territories  



The US Supreme Court has consistently maintained that not every provision of the US Constitutional applies in overseas territories, the major rationale being that these territories have "wholly dissimilar traditions and institutions." Since 1901, the Court has issued numerous rulings which have held that inhabitants of overseas territories are only guaranteed "fundamental" constitutional rights -- "inherent principles which are the basis of all free government."
These so-called "fundamental rights" also appear to correspond roughly to the "natural rights" earlier described by Justice White, in a concurring opinion in Downes v. Bidwell, 182 U.S. 244 (1901). Justice White included among "natural rights" the right to one's own religious opinion as well as "the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice; to due process of law and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments . . . ."

In past eras, Hawaii and the Philippines were US overseas territories ("insular areas"), and at the present time the United States still maintains the overseas territories of Guam, Puerto Rico, the Virgin Islands, American Samoa, and the Northern Mariana Islands, in addition to Taiwan.


Bill of Rights

The following information on US Supreme Court decisions in relation to the US Constitution's "Bill of Rights" (i.e. Amendments 1 - 10) are provided for reference.

James Madison       George Mason
James Madison and George Mason
"Fathers of the Bill of Rights"


Amendments US Supreme Court rulings Comments
Amendment I: Freedoms, Petitions, Assembly

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.		 Justice White's concurring opinion in Downes v. Bidwell, 182 U.S. 244 (1901) ("natural rights" include the right to one's own religious opinion, . . . to freedom of speech and of the press . . . ;) With the expected future establishment of a "civil government" in Taiwan fully recognized by the officials of the US Executive Branch and members of Congress, the native Taiwanese people will have all necessary and appropriate channels to "petition the Government for a redress of grievances."
Amendment II: Right to bear arms

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 		  Militia refers to "civilians trained as soldiers but not part of the regular army," and is a form of military organization which existed in the American colonies. Taiwan does not have any history of the establishment of militia, or the private ownership of arms, with the possible exception of some aboriginal groups which have engaged in the hunting of live game. In the future, any changes in the rights of the Taiwanese people to bear arms would no doubt require the support of the majority of the Taiwanese populace, as well as the approval of the US High Commissioner, the Dept. of Defense, and the Commander in Chief.
Amendment III: Quartering of soldiers

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. 		  As part of the United States' handling of Taiwan's defense responsibilities, the establishment of US military bases in Taiwan is entirely appropriate. All US soldiers should be assigned dormitory space and/or living quarters on such bases or at other officially established military housing facilities as necessary.
Amendment IV: Search and arrest

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 		The rights provided by the Fourth Amendment are generally considered to be "fundamental," which means that they apply of their own force to all individuals subject to the sovereignty of the United States. No statute is necessary to extend them to US territories and possessions. It is notable that local legislation or local constitutional provisions of each of the larger US insular areas either explicitly apply the Fourth Amendment, or offer equivalent protections under local law, to insular area residents.
Amendment V: Rights in criminal cases

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 		Justice White's concurring opinion in Downes v. Bidwell, 182 U.S. 244 (1901) ("natural rights" include personal liberty and individual property; . . . free access to courts of justice; to due process of law and to an equal protection of the laws; . . . );   Ocampo v. United States, 234 U.S. 91 (1914) (Fifth Amendment grand jury provision inapplicable in Philippines);   Hawaii v. Mankichi, 190 U.S. 197 (1903) (provisions on indictment by grand jury inapplicable in Hawaii);   Malloy v. Hogan, 378 U.S. 1 (1964) (Fifth Amendment privilege against self-incrimination is a fundamental right); In Dorr v. United States, 195 U.S. 138 (1904), the Supreme Court held that the Fifth Amendment right to indictment by grand jury and the Sixth Amendment right to trial by jury " . . . are not fundamental in their nature, but concern merely a method of procedure."   According to the precedent in Kent v. Dulles, 357 US 116 (1958), and subsequent INS-USCIS interpretations, the right to travel, and to obtain travel documents, is a part of the "liberty" of the Fifth Amendment.
Amendment VI: Right to a fair trial

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. 		Hawaii v. Mankichi, 190 U.S. 197 (1903) (Sixth Amendment provisions on jury trial inapplicable in Hawaii);   Dorr v. United States, 195 U.S. 138 (1904) (jury trial provision inapplicable in Philippines);   Balzac v. Porto Rico, 258 U.S. 298 (1922) (Sixth Amendment right to jury trial inapplicable in Puerto Rico); In Powell et al. v. State of Alabama, 287 U.S. 45 (1932), the Supreme Court held that during perhaps the most critical period of the proceedings . . . that is to say, from the time of their arraignment until the beginning of their trial, when consultation, the ongoing investigation and preparation are vitally important, the defendants . . . are as much entitled to aid of legal counsel during that period as at the trial itself.

Over and above this aspect, to the extent suitable for application in Taiwan, the rights provided in this amendment may be specified in more detail in the new Taiwan Constitution.
Amendment VII: Rights in civil cases

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. 		Dorr v. United States, 195 U.S. 138 (1904) (jury trial provision inapplicable in Philippines); If the Taiwan people deem it appropriate, they may establish a system of jury trials in the new Taiwan Constitution.
Amendment VIII: Bail, fines, punishment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 		Justice White's concurring opinion in Downes v. Bidwell, 182 U.S. 244 (1901) ("natural rights" include immunities from . . . cruel and unusual punishments . . . . ) In Trop v. Dulles, 356 U.S. 86 (1958), the Supreme Court held that the basic concept underlying the Eighth Amendment is nothing less than the dignity of man. Deprivation of a recognized nationality or being stateless is considered "cruel and unusual punishment," because it amounts to a destruction of the individual's status in organized society. It strips the individual of his rightful status in the national and international political community.
Amendment IX: Rights retained by the People

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. 		  The Framers of the Bill of Rights, most notably Mr. James Madison and Mr. George Mason, did not purport to "create" rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing.
Amendment X: States' rights

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 		  As an overseas territory of the United States under the jurisdiction of USMG, Taiwan does not qualify as a "state." However, the native Taiwanese people will be able to call a Constitutional Convention in the future to draft a true Taiwan Constitution.



Unincorporated Territory

1. Article IV, Section 3 of the US Constitution states that the Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. Indeed, numerous Supreme Court decisions have held that the Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.
(A) The United States has a long history of administrative authority over territories. A very early example is the situation of the "Northwest Territory," which dates back to 1787. (The Northwest Territory was later divided into the states of Ohio, Indiana, Illinois, Michigan, Wisconsin, and eastern Minnesota.)

(B) So-called "unincorporated territory," however, is an area over which the Constitution has not been expressly and fully extended by the Congress within the meaning of Article IV, Section 3. The recognition of the existence of "unincorporated territory" was determined by the US Supreme Court after the Spanish American War.

(C) As the name indicates, unincorporated territory is an overseas territorial status.

2. In Dorr v. United States, 195 U.S. 138 (1904), the Supreme Court held that: "The limitations which are to be applied in any given case involving territorial government must depend upon the relation of the particular territory to the United States, concerning which Congress is exercising the power conferred by the Constitution. That the United States may have territory, which is not incorporated into the United States as a body politic, we think was recognized by the framers of the Constitution in enacting the article already considered, giving power over the territories, and is sanctioned by the opinions of the justices concurring in the judgment in Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901)."


3. In United States v. Sanchez, 992 F.2d 1143 (11th Cir. 1993), th Court of Appeals for the Eleventh Circuit held that the US Congress' decision to permit self-governance in Puerto Rico does not remove Puerto Rico from application of the Constitution's Territorial Clause (Article IV, Section 3).


4. As per Article 2, section 1, clause 3, the Constitution provides for the election of the President by electors appointed by the states. Therefore, American citizens who reside in the insular areas may not vote for President.
Although residents of the insular areas are not eligible to vote in presidential elections, most of the larger insular areas participate in the nominations process, which is governed by party rules and local law rather than by the Constitution. For example, Puerto Rico holds primary elections to nominate presidential candidates, and sends delegates to the Republican and Democratic national conventions.

5. For overseas territories under the jurisdiction of the United States, all asylum and refugee matters are the responsibility of the US federal government.


6. Also of importance is that the "common defense clause" of the US Constitution applies to all areas under US administrative authority. This would of course include the insular areas. Accordingly, Taiwan's defensive needs should be handled directly by the United States.


7. The Constitution establishes the House of Representatives and the Senate, comprising representatives elected by the citizens in each state, as per the specifications of Article 1, sections 2 - 3. Although the Constitution does not provide for the insular areas to elect representatives or senators, the Congress has created a form of representation for them. In the past few decades, legislation has been passed which permits most of the larger insular areas to elect officials who have a role in the House of Representatives -- such as "elected delegate to the United States Congress."
Although residents of the insular areas may have representation and voting rights in standing committees of the US Congress, they do not have voting representation in the final approval of legislation by the full Congress.

8. The Congress has authority to impose income taxes on the worldwide income of US citizens and corporations, including income from the insular areas. However, federal individual and corporate income taxes as such are not currently imposed in any US insular areas on local source income.
The Congress is vested with power "to lay and collect Taxes" under Article I, sec. 8, of the Constitution and the Sixteenth Amendment. US citizens and corporations in the insular areas may be subject to Federal income tax laws if they have (1) domestic [50-state] US or (2) foreign source income.


Additional Webpages of Interest

    Protected Persons

    Competent Authority under INA

    Three Insular Cases and the Taiwan Status

    What Are You Doing?