Erwin Chemerinsky, a renowned constitutional law expert, will join Julian Aguon in representing Guam in defense of the Guam plebiscite before a three-judge panel of the Ninth Circuit Court of Appeals next month in Honolulu.
Chemerinsky joined Julian Aguon of Blue Ocean Law as part of the Attorney General of Guam’s legal team in the case of Davis v. Guam. Considered one of the foremost constitutional law scholars in the United States and also the Dean of the UC Berkeley School of Law, Chemerinsky lends his considerable intellectual heft to Guam’s position in a case that threatens to deny the native inhabitants of Guam the right to participate in a symbolic exercise of self-determination.
The plebiscite at issue in Davis v. Guam is not binding, but rather seeks only to ascertain the opinions of the native inhabitants regarding their future political relationship with the United States. Davis, a sometime resident of Guam who does not meet the statutory definition of “native inhabitant” – i.e., an individual or descendant of an individual who gained his/her U.S. citizenship through the 1950 Organic Act of Guam – filed the underlying lawsuit in 2011, alleging that he must be allowed to participate in the symbolic vote. Davis argues that limiting the symbolic vote to native inhabitants is race-based discrimination that violates the 14th and 15th Amendments.
Chemerinsky and Aguon disagree, arguing that the Guam law is race-neutral on its face and seeks only to provide a platform for colonized people to express their views regarding decolonization. “Neither the Fourteenth nor the Fifteenth Amendment was designed to prohibit this kind of political expression,” says Aguon.
Moreover, according to Chemerinsky, the Supreme Court’s decision in Rice v. Cayetano should not control this case. “Rice held only that ancestry may be a proxy for race, not that it always is. This case is an example of when it is not. The Guam Legislature intended to carve out a class of colonized people for the purpose of determining their views regarding their right to decolonization, as recognized by international law. Identifying colonized people depends in part on determining whether one’s ancestor’s experienced colonization, and the law is carefully crafted to do that, says Chemerinsky.
Chemerinsky was the founding dean of the UC Irvine School of Law from 2008 to 2017. He is the author of ten books and more than 200 law review articles, and frequently argues appellate cases, including in the U.S. Supreme Court. In January 2017, he was named by National Jurist magazine as the most influential person in legal education in the United States.