Can the USA alienate sovereignty?

If the USA should “alienate sovereignty “ it means that the USA is giving up territory incorporated in its body politic, like Puerto Rico, and at one time, the Philippines Islands. Just as the USA acquired and incorporated territory by treaty, purchase or conquest, it could very well alienate sovereignty over the same. No, I am not hinting that we are alienating sovereignty to the USA over those naval and military camps and bits and pieces of our national territory where EDCA is taking place. Nor am I alluding to Bangsamoro or any other autonomous region.

For some strange reason, I am worried about what might happen to the United States of America if Pres. Joseph Biden is not reelected. He is the “adult in the room” who, to my mind, has restored America’s image and is addressing basic problems like jobs, health, food security, climate change, etc. I am not even a US citizen, so why worry that the USA might be crumbling into several disunited lone star States? We Filipinos cannot help but worry; it is visceral and historical, nothing to do with the Stockholm syndrome. Most of us have relatives and friends who have settled there and have become eminent members of the American-Asian community.

Apparently, the problem of disunity in the USA is not a new one. In the 19th century, Governor Edmund Randolf of Virginia, member of the Convention that drafted the Federal Constitution opposed the amendment that would have given both houses of Congress power to alienate sovereignty and cede territorial rights with three-fourths vote of members. He said there is no power in the US Constitution that allows the secession of any part of the United States and that Congress did not have the right to “dismember the empire” nor progressively disunite the Union.

In January 1930, Senator William King of Utah,
jurist and member of the Democratic Party, requested the Senate’s legislative counsel to supply him with materials about the constitutional powers of the US Congress to grant Philippine Independence. After three days, he received a memorandum with a lot of quotations from William Willoughby’s “Constitution of the United States” and Justice George Malcolm’s “Philippine Constitutional Law”.

Willoughby said that the USA had never transferred or withdrawn sovereignty over any territory that it owned. There may have been settlements of boundary disputes by treaty in cases where US ownership was unfounded, but never was sovereignty alienated in favor of another power. Even if the Philippines had not been incorporated into the USA by an act of Congress, the 1898 Treaty of Paris with Spain brought it under the sovereignty of the USA. He added that the US Congress had not been given the power to alienate territory under American sovereignty. Malcolm pointed out that there is no express provision in the Constitution authorizing the transfer of territory in possession of the USA to another power. As we all know, there were many devices used to delay the restoration of Philippine Independence.

Now, this is the intriguing part about the power of alienation of sovereignty: It also applies to territory belonging to the USA within its national boundaries and not just overseas. It comprehends all of the public domain, wherever it may be. Congress can alienate sovereignty within the States, over any of the 50 states like California or Texas.

It would logically follow that through a resolution Congress can alienate States that want to secede from the Union simply because they are dissatisfied with the treatment accorded by the national government. (There are unconfirmed news reports that some States want to do that soon.) Through a successful lobby, such States could procure Congressional “alienation” and go off on their own. In his time, Willoughby said that had the Southern States followed this procedure in 1861, a long and bloody civil war might have been averted. The alienation of Philippine sovereignty was considered a political question beyond the jurisdiction of any court; the same applies to any of the American States even today.

In his final opinion in 1930, Justice Malcolm said that if sovereignty permits the USA to secure domain, conversely the same right permits the USA to dispose of territory and alienate sovereignty. (Source: “ Williams, Daniel R. A supplemental brief: “ Is Congress Empowered to Alienate Sovereignty of the United States?”