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The Nonoriginalist Insular Cases
Michael Ramsey

The once-obscure Insular Cases -- a series of Supreme Court decisions concerning U.S. overseas territories decided in the aftermath of the Spanish-American War -- have suddenly been in the news for several  reasons.  One is Fitisemanu v. United States, the Tenth Circuit litigation over the U.S. citizenship of people born in American Samoa.  The cases have also been discussed in the ongoing Senate Judiciary Committee hearings on the nomination of Judge Gustavo Gelpi to the First Circuit (here, and further written questions and answers here) -- Judge Gelpi criticized the Insular Cases in prior academic writing, notably his book The Constitutional Evolution of Puerto Rico and Other U.S. Territories (1898 - Present), and that drew questions from Senators.  And the House of Representatives is considering a resolution condemning the Insular Cases, see here.

In a recent defense of originalism discussed here, Professor Stephanie Barclay argued that some of the Court's worst historical decisions have been nonoriginalist -- specifically citing Dred Scott v. Sandford and Plessy v. Ferguson.  I'd put the Insular Cases on that list as well.  In the Insular Cases, especially Downes v. Bidwell and Dorr v. United States, the Court held that persons in "unincorporated" U.S. territory -- by which it meant overseas possessions such as Puerto Rico and American Samoa, and at the time the Philippines -- do not have the full protection of the U.S. Constitution.  This was an appalling bit of nonoriginalism that should be more infamous than it is.  (I had not paid much attention to the decisions until I began work on my article on originalism and birthright citizenship, which discusses them in part II.A.4.)  Consider: 

(1) The Justices in the majority cited no material originalist sources for their conclusion -- not the Constitution's text (which says nothing about different categories of U.S. territories receiving different levels of constitutional protection); not anything from the founding era; and not anything from the drafting and ratification of the Fourteenth Amendment, which declared that "[a]ll persons" born in the United States are U.S. citizens.  As Justice Harlan wrote in dissent in Downes, "I am constrained to say that this idea of [incorporated and unincorporated territories] has some occult meaning which my mind does not apprehend. It is enveloped in some mystery which I am unable to unravel."

(2) The Justices in the majority instead transparently relied on the need for U.S. constitutional law to adapt to the United States' imperialist ambitions following the Spanish-American War, specifically the desire to acquire and hold territory for geostrategic reasons that was not to be treated as fully part of the United States nor destined for statehood in the manner of previous territories.  A contrary ruling in Downes, Justice Henry Brown said, would interfere with this imperial project. Or as originalist scholars Gary Lawson and Guy Seidman wrote in The 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. . . 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.

(3) Further, the decisions were overtly racist.  The reason a contrary decision in Downes would interfere with the imperial project, Justice Brown wrote, was that the predominantly nonwhite people of the newly acquired territories weren't suited for full incorporation into the U.S. polity. (Brown also wrote the majority opinion in Plessy v. Ferguson six years earlier, from which Justice Harlan also dissented).  The insular territories, Brown observed, were inhabited "by alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought" and “the consequences [of extending the Constitution to the insular territories] will be extremely serious. Indeed, it is doubtful if Congress would ever assent to the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits, traditions and modes of life, shall become at once citizens of the United States.”  Concurring, Justice Edward White (who had joined Brown's majority opinion in Plessy), equally found problematic the "immediate bestowal of citizenship on those absolutely unfit to receive it” as members of “an uncivilized race."

(4) Not content with making up the distinction between incorporated and unincorporated territories, the Court's majority went on to make up a distinction between "fundamental" constitutional rights and constitutional rights that are supposedly not fundamental. The former applied in the unincorporated territories, the Court said, while the latter did not.  This move somewhat mitigated the malign effects of the decisions, but it likewise had no basis in constitutional text or ratification-era commentary or practice.  The Constitution's text has just one category of rights.  The Court was simply writing the Constitution it preferred, rather than the Constitution we had.

(5) And in subsequent practice the Insular Cases had the effect the majority wanted: they allowed the United States to pursue its imperial ventures without having to extend full citizenship and constitutional rights to the predominately nonwhite new territories, a second-class status that persists in various respects today.

In an earlier post I described the Insular Cases as a nonoriginalist abomination and I stand by that description.  (And Judge Gelpi's criticism of them is well-taken on originalist grounds).  Whether they should be overruled is a different question -- generally I'm more comfortable with non-extension than overruling (see here).  But at minimum, they shouldn't be extended, which is why I think the panel decision in Fitisemanu, denying U.S. citizenship to American Samoans, is particularly unfortunate: the full Court in the Insular Cases never actually held that persons born in unincorporated territories are not U.S. citizens under the Fourteenth Amendment.  Even under the Insular Cases' analysis, citizenship seems like a "fundamental" constitutional right that should extend to the unincorporated territories.

In any event, whatever one thinks about overruling, I encourage originalists to think of the Insular Cases as extraordinarily problematic, and indeed as a further entry on Professor Barclay's list of historical nonoriginalist injustices.

(Thanks to Neil Weare for pointers on current congressional materials.)