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Puerto Rico and the Racist, Non-Originalist Insular Cases
Michael Ramsey

At Slate, Doug Mack: The Strange Case of Puerto Rico:  How a series of racist Supreme Court decisions cemented the island’s second-class status.  It begins:

The devastation wrought by Hurricanes Irma and Maria has reawakened many Americans to the existence of Puerto Rico as well as the archaic laws and domineering bureaucracies that continue to burden the island. News outlets have scrambled to explain the Jones Act, the 1920 law that restricts shipping between U.S. ports, the PROMESA board that Congress set up last year to oversee Puerto Rico’s finances, and the fact that territory residents can’t vote for president.

But beneath these data points lurks something deeper and more problematic, yet rarely discussed: the Insular Cases, a series of Supreme Court decisions from the early 20th century. When we talk about the differences between states and territories—and when we ask why the United States even has territories in 2017—we’re really talking about the legacy of the Insular Cases. The recent controversies are, in fact, the latest iteration of a conversation about American empire that goes back more than a century.

The earliest Insular Cases were decided by the same Supreme Court that allowed “separate but equal” segregation in Plessy v. Ferguson in 1896. That case was overturned, but the Insular Cases, which are built on the same racist worldview, still stand today.

And from further on:

Downes v. Bidwell ..., which centered on a question of whether shipments from Puerto Rico to New York were interstate or international, established a new hierarchy of territories: They were now either “incorporated” with the United States or “unincorporated,” with only the former having the full protections of the Constitution. The court reasoned that Puerto Rico and the other new territories were “inhabited by alien races,” so governing them “according to Anglo-Saxon principles may for a time be impossible.” These islands, then, were “foreign in a domestic sense.”

Three years later the court considered the Americanness of individual territory residents in Gonzales v. Williams, which concerned a woman who moved from Puerto Rico to New York and was detained as an “alien immigrant.” The court ruled that she was American, sort of: She was a “noncitizen national,” a distinction new to the United States and inspired by the designations European empires used for their colonial subjects. Puerto Ricans finally gained citizenship in 1917 through legislation passed by Congress. Residents of most of the other current territories later gained it the same way, although Guamanians had to wait until 1950. The “noncitizen national” designation still holds in American Samoa, where residents are, by birth, not citizens of any country. ...

Balzac v. Porto Rico in 1922 added yet more complexity, finding that the Constitution didn’t apply in full to the territories—only “fundamental” rights were automatically in effect. ...

(Note: Doug Mack is the author The Not-Quite States of America: Dispatches from the Territories and Other Far-Flung Outposts of the USA, which sounds like a very interesting read).

As the post implies but doesn't say outright, the Insular Cases were an outrageous bit of non-originalism.  The distinction between "incorporated" and "unincorporated" territories -- and the corresponding idea that only "fundamental" rights (whatever they may be) apply in the unincorporated territories -- has no basis in the Constitution's text or founding-era commentary.  The opinions in the Insular Cases rest principally on pragmatism: given what the U.S. wanted to do with the territories and (even worse) who the people of the territories were, it didn't make sense to apply the same rules that the Constitution applied to (as the Court saw it) "real" Americans.  And the conclusion that people born in the unincorporated territories were not U.S. citizens at birth is flatly contrary to the text of Section 1 of the Fourteenth Amendment, which says that "all" persons born "in the United States ... are citizens of the United States" -- no exception for territories where that would be inconvenient because the population is a different race or culture.  True, the framers and ratifiers of the Fourteenth Amendment (and the original Constitution) presumably did not contemplate the U.S. acquiring colonial territories.  But the key is not what they expected, but what they wrote and  enacted.  And what they wrote and enacted contained no exception for non-white territories, until the Supreme Court in the Insular Cases made one up.

I emphasize this because it's pretty easy to come up with consensus awful non-originalist opinions (Dred Scott, Korematsu) but most of them have been long since abandoned.  The Insular Cases, as the post points out, still have important modern ramifications, and they too should be recognized as consensus awful non-originalist opinions.