Amata's Pacific Notebook: HAPPY B.O.R. DAY!
December 14, 2007

by Amata Aumua
Reprinted from The Samoa News

On December 6, President Bush issued a proclamation for Human Rights Day, Bill of Rights Day and Human Rights Week 2007. Saying "Americans value deeply our ability to speak, assemble, and worship freely," he called on us to "celebrate the freedoms guaranteed to all Americans and protected in our Constitution's Bill of Rights."

With all due respect to Samoa News and our other media outlets in American Samoa, I doubt news of this presidential action got any attention when the proclamation was announced. Don't feel bad because it didn't get much play stateside either it never does. And that's too bad.

Presidents have been proclaiming Bill of Rights (B.O.R) Day since Franklin Roosevelt started the tradition in1941 to remind us of our precious freedoms just eight days after Pearl Harbor. December 15 was chosen because it was the anniversary of the date 150 years earlier in 1791, when the first 10 amendments to the U.S. Constitution went into effect after they had been ratified by three fourths of the state legislatures. While the Constitution itself largely deals with the structure and obligations of the federal government, the Bill of Rights enshrines the rights of the people.

When our Samoan forefathers negotiated to become a part of the United States, they did so with the understanding that the U.S. would protect certain aspects of our culture that might be in conflict with the Constitution. Where the foundation of the U.S. Constitution, and especially the Bill of Rights, is individual freedom, the underpinning of our society is community responsibility. We are an unorganized, unincorporated territory, as defined by the Supreme Court, precisely so that the entirety of the U.S. Constitution does not need to be applied to us. Fundamentally, that distinction enables us to maintain our communal land system, which is essential to the survival of our culture.

Nonetheless, the fundamental protections the U.S. Constitution guarantees to all Americans apply to us. That includes most of the Bill of Rights, especially the First Amendment, which guarantees freedom of speech, freedom of religion, freedom of the press, freedom of assembly and our right to petition our grievances to the government.

Over the years some provisions of the Bill of Rights that we did not initially apply, such as the Seventh Amendment right to trial by jury, were tested in court and applied. Others, like the Second Amendment right to keep and bear arms, have not been tested--although there is a case pending before the U.S. Supreme Court that challenges similar restrictions on private guns in the District of Columbia. That case might impact our gun control laws, depending on the decision rendered and how it is written.

Two other amendments that I think are worth noting here are the Fifth Amendment, which prohibits private property to be taken for public use without just compensation and the 10th Amendment, which states that "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 (emphasis added)."

One might argue that the Article IV, Section 3, clause 2 provision that gives Congress "the power to dispose of and make all needful Rules and Regulations respecting the territory or other Property of the United States (which was written before the Bill of Rights) trumps the 10th Amendment, but that ignores the explicit obligations of the United States under the Treaties of Cession and the historic deference the Congress has accorded local self-government. In the final analysis, however, it is the job of the Supreme Court to sort out conflicts in the Constitution and interpret the Founding Father's intentions and the actions of Congress. This is not an inconsequential question because it goes to the basis of our self-government and what that means.

With the blessing of Congress, for example, can the Secretary of the Interior at the stroke of a pen convert these islands into a national park and re-designate the governor as park superintendent? I remember my father as governor about 25 years ago led a group of local leaders to Washington to have ratified some amendments we made to our American Samoa Constitution by a constitutional convention. In informal meetings with U.S. officials, which I sat in on, the group learned that if an Act of Congress were needed-as was required by law-then Congress might be forced to address aspects of our constitution that might be in conflict with the U.S. Constitution and be required to make modifications that might not be to our liking.

Even if not addressed by Congress, there would always be the danger that, as Jake King did with jury trials, someone could file suit to overturn an Act of Congress ratifying our constitution as being unconstitutional. At that point, my father, a Georgetown University trained lawyer, saw the wisdom of withdrawing the document and returning home without further pursuing our amendments.

So, let us celebrate Bill of Rights Day for the individual freedoms we are guaranteed under ours and the federal Constitutions and for our freedom to practice our traditional culture as guaranteed by our constitution and the respect and deference provided to the Treaties of Cession. I for one choose to believe the 10th Amendment in particular gives us the basis for self-government, which we must be vigilant to see that "we, the people" preserve and strengthen. That is why we must resist any attempts by Washington to "re- federalize" our territory incrementally, thereby eroding the self-government we have fought so long and hard to achieve.

We can ensure that we remain in control by exercising yet another fundamental right we are guaranteed as Americans: the right to vote. If we are dissatisfied with our system, let us not dismantle it without thought when through the ballot box we have the power to require our leaders change course or, if necessary, change our leaders. Fix the leaders and we fix the system.

Happy 216th B.O.R. Day. Read them, study them, embrace them and exercise them. They belong to all of us.

As always, I welcome your thoughts and comments. Write amata.aumua@gmail.com or call 699-9609.



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