Giochi di frontiera: Ma la Costituzione segue la bandiera?

The question of whether «the Constitution follows the flag» - that is, whether and to what extent constitutional rights apply to inhabitants of territories which are U.S. possessions but clearly not destined for statehood within the Union – is a venerable one in American history. It became a major issue after the 1998 war with Spain, when the United States became a colonial power. It was hotly debated in the 1900 presidential campaign, when the anti-colonialist Bryan Democrats coined the now-famous catch phrase. It was somewhat settled a few years later by the Supreme Court that, in the so-called Insular Cases, held that the new overseas possessions were «foreign in a domestic sense» and thus only some, not all constitutional provisions applied to their native (and mostly non white) residents. «As near as I can make out the Constitution follows the flag, but it doesn’t quite catch up with it», commented then-Secretary of War Elihu Root. Although they have been recently defined by a federal judge «an ossified set of cases marked by the racist imperialism of a previous era», these early-twentieth-century court rulings still govern the small American «tropical empire» including Puerto Rico, Guam, American Samoa, the U.S. Virgin Islands and the Northern Marianas. Today the territorial scope of the Constitution and constitutional protections is again a burning issue in a slightly different and possibly larger context. It concerns the fundamental rights of foreign citizens captured during the war on terrorism and detained by the United States outside of the U.S. borders – in Guantanamo Bay, Cuba, and perhaps elsewhere.