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The Supreme Court, FOMB v. Aurelius Investment, and the Insular Cases
Michael Ramsey

At Slate, Kyla Eastling, Danny Li & Neil Weare: The Supreme Court Just Passed Up a Chance to Overrule Appallingly Racist Precedents.  From the introduction:

The Supreme Court just can’t seem to quit the Insular Cases, a series of controversial decisions from the era of Plessy v. Ferguson that established a doctrine of “separate and unequal” status that has justified denying basic constitutional rights and protections to the nearly 4 million Americans living in Puerto Rico and other U.S. territories.

On Monday, the Supreme Court unanimously upheld [ed.: in Financial Oversight and Management Board v. Aurelius Investment LLC] the constitutionality of the Financial Oversight and Management Board for Puerto Rico—an undemocratic, federally appointed body with near-total authority over Puerto Rico’s budget and finances. In doing so, the court once again avoided the opportunity to finally overrule the Insular Cases. Parties on both sides called on the court to expunge this shameful remnant of America’s imperialist past from our body of constitutional law. Yet the most the court could muster was an acknowledgment that the Insular Cases are “much criticized” and that “whatever their continued validity,” the justices “will not extend them in these cases.”

It’s easy to see why the justices would distance themselves from the Insular Cases. Issued at the height of America’s imperialist expansion in the early 20th century, these controversial decisions broke from prior precedent to create the doctrine of territorial incorporation, allowing Congress to govern residents of so-called unincorporated territories outside the usual constitutional limitations on its power. The expressly stated justification for this discriminatory doctrine was the racist belief that these newly acquired overseas territories were populated by “alien races” and “savages” who could not comprehend American “Anglo-Saxon principles.”

And in conclusion:

The Supreme Court missed a ripe opportunity to turn the page on the Insular Cases and extend the principle of equal justice under law to residents of U.S. territories. It is long past time to recognize that the Constitution protects all Americans equally, wherever they live.

Agreed.  The Insular Cases are an abomination.  But it should be emphasized that they are a nonoriginalist abomination.  The "territorial incorporation" doctrine has no basis in the Constitution's text or any context or pre- or early post-ratification history.  As originalists Gary Lawson and Guy Seidman put it in their great book Constitution of Empire (pp. 196-197):

[T]here is nothing in the Constitution that even intimates that express constitutional limitations on national power apply differently to different territories once that territory is properly acquired.  Nor is there anything in the Constitution that marks out certain categories of rights as more or less “fundamental” than others…. The doctrine of “territorial incorporation” that emerged from the Insular Cases is transparently an invention designed to facilitate the felt need of a particular moment in American history.

A leading (and to my mind the strongest) argument against originalism in constitutional adjudication is that it can lead to bad outcomes (not always, but perhaps in enough cases to be worrisome).  But as the Insular Cases illustrate, nonoriginalism also can lead to bad outcomes.  Freeing judges from original meaning to follow their policy-driven intuitions is no guarantee of good (or even consistently better) outcomes.

As to the future of the Insular Cases, I hope litigants will continue to press the Court to re-examine the territorial incorporation doctrine.  It seems like something originalists and nonoriginalists should be able to agree on.

RELATED:  On originalism in the Aurelius case specifically, see here from Chris Green.