Our Colorblind Constitution’s Territorial Blind Spot

The Supreme Court recently invoked “our colorblind Constitution” in Allen v. Milligan while changing the standards for liability in Voting Rights Act litigation. Days later, the Department of Justice’s Office of Legal Counsel relied on that phrase to narrow liability for workplace discrimination under Title VII of the Civil Rights Act. Whatever one thinks of those developments, “our colorblind Constitution” is no longer just a slogan; it is now being invoked as a rule of law throughout the United States.

The idea that the U.S. Constitution is “colorblind” — that is, that governments should neither favor nor disfavor individuals based on their race or ancestry — stems from the famous dissent of Justice John Marshall Harlan in Plessy v. Ferguson. Casting the sole vote against a Louisiana law mandating racial segregation in rail coaches, Harlan wrote that “our constitution is colorblind, and neither knows nor tolerates classes among citizens.” While the NAACP and its chief legal counsel Thurgood Marshall embraced colorblindness in their brief in Brown v. Board of Education, today the theory is arguably most closely associated with opposition to affirmative action and race-based congressional districts. Though the Supreme Court recently issued multiple opinions consistent with the theory, its emergency docket decision in Allen is the first time the Court referred to the “colorblind Constitution” in a majority opinion.

The phrase’s new legal force should require the federal courts and the executive branch to confront an old constitutional problem: How does a Constitution now described as colorblind apply in U.S. territories, where some laws still turn on blood quantum, ancestry, inherited status, and classifications closely tied to race and indigenous identity?

This is not an academic question. In American Samoa, most land cannot be transferred to a person with less than one-half Samoan blood. Even children cannot inherit land from a parent unless they satisfy this blood-quantum requirement. The territory’s senate is not popularly elected, as senators must be registered matai (family chiefs) and are elected by other matai — and only those of one-half Samoan blood can serve as a matai. Moreover, matai titles are hereditary, with law requiring that a male prevail over a female absent evidence of a contrary custom within a specific family. And the territorial constitution of the Northern Mariana Islands restricts long-term interests in land to persons of Northern Marianas descent, a category expressly tied to Chamorro or Carolinian blood.

These laws are not hidden relics. Nor have they survived simply because no one has challenged them. Every court — federal or territorial — to review these race-based laws has declared them constitutional or has otherwise viewed them favorably.

The result is a legal landscape that would surprise many Americans: Under the same U.S. flag, territorial governments may use explicit race- and ancestry-based classifications that would be constitutionally unthinkable if adopted by a state.

The discrepancy primarily stems from the Constitution’s words. The 14th Amendment, the provision most often associated with the colorblind Constitution, does not say that every government in the United States must provide equal protection of the laws. Rather, it says that no “state” may deny it. That language easily covers every state, from California to Maine. But what is the textual basis to extend the 14th Amendment to the nearly 4 million Americans who do not live in a state but in a territory, like American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, or the U.S. Virgin Islands?

The usual debate over whether the Constitution is colorblind does not account for the actual text of the 14th Amendment. Even committed originalists like Justice Clarence Thomas write that it “ensures protection for all equal citizens of the Nation without regard to race, ” without addressing that the 14th Amendment by its own terms only references states and not territories.

One might be tempted to construe “state” in the 14th Amendment to mean “state or territory.” But there is no evidence that its drafters possessed that intent, particularly when race-based laws existed before and after ratification of the Reconstruction amendments in various U.S. territories, such as those that hosted freedom colonies or all-Black towns. And if “state” in the 14th Amendment means “state or territory, ” then shouldn’t that construction also extend to the constitutional provisions that allow states to receive voting representation in Congress and the Electoral College?

A secondary complication stems from the legacy of the Insular Cases, the early-20th-century decisions in which the Supreme Court invented the territorial incorporation doctrine and created distinctions between so-called “incorporated” and “unincorporated” territories. The Insular Cases were themselves openly racist, with the Supreme Court relying on the “white man’s burden” and other now-discredited theories of racial inferiority to withhold many constitutional rights from the “half-civilized, ” “savage, ” “ignorant and lawless” “alien races” that inhabited Puerto Rico and other territories they deemed unincorporated — that is, those the Court believed Congress did not intend for eventual statehood.

No serious defender of the Constitution supports this reasoning, which has no basis whatsoever in its text and is perhaps the textbook example of judges legislating from the bench. Yet, while the Supreme Court has disavowed the reasoning and cautioned against extending it, the Court has stopped short of overruling the Insular Cases. That leaves courts in a difficult position: The doctrine is indefensible, but it remains part of the legal architecture governing the territories.

This is the real conflict. The phrase “our colorblind Constitution” conceals a series of geographic questions. Who is included in “our”? Which governments are bound? And does colorblindness apply everywhere the United States exercises sovereignty, or only where constitutional text and doctrine make the answer easy?

As a matter of policy, the answer may seem obvious: A Constitution described as colorblind should not tolerate explicit racial or ancestry-based classifications anywhere under the American flag. But constitutional law cannot be resolved by policy preference alone. If one is an originalist, the idea of a colorblind Constitution must be squared with the text of the 14th Amendment as originally understood, which speaks to “states, ” not territories. Moreover, if one gives weight to precedent, then the continued existence of the Insular Cases complicates the analysis even though their reasoning is indefensible. And if one cares about local self-government, then laws designed to preserve indigenous land and culture cannot be dismissed as if they were no different from ordinary racial spoils systems.

Before judges and federal officials invoke “our colorblind Constitution” as though it supplies a complete answer to every question of race, they must confront the Constitution’s territorial blind spot. The 4 million people who live in U.S. territories are not outside the American constitutional order. But they also do not fit neatly within doctrines built around states. We should stop pretending that this tension has already been resolved.

Anthony M. Ciolli is practicing faculty at St. Mary’s University School of Law. He was formerly the president of the Virgin Islands Bar Association and serves as special assistant to the chief justice of the Virgin Islands. The views expressed herein are solely his own and not those of the judicial branch of the Virgin Islands, the Virgin Islands Bar Association, or any of their officers or employees.

Suggested Citation: Anthony Ciolli,  Our Colorblind Constitution’s Territorial Blind Spot, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (July 21, 2026), https://statecourtreport.org/our-work/analysis-opinion/our-colorblind-constitutions-territorial-blind-spot