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Justice Gorsuch Says Overrule the Insular Cases on Originalist Grounds
Michael Ramsey

In United States v. Vaello-Madero, decided by the Supreme Court on Thursday, there was a straightforward 8-1 majority opinion (by Justice Kavanaugh) and two provocative originalist concurrences by Justices Thomas and Gorsuch. Here I'll discuss Gorsuch's concurrence and post separately on Justice Thomas' concurrence. 

Justice Gorsuch expressly called for the Court to overrule the Insular Cases, the early-twentieth-century series of decisions that -- on openly racist grounds -- denied full constitutional rights to residents of U.S. territories.  (This issue was in the background because the case challenged Congress' treatment of residents of Puerto Rico differently from mainland residents in the Supplemental Security Income program, although neither side called for the Insular Cases to be overruled).

From the beginning of the concurrence (footnotes omitted): 

A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.


The flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of “incorporated” and “unincorporated” Territories. Nothing in it extends to the latter only certain supposedly “fundamental” constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion.

The Insular Cases can claim support in academic work of the period, ugly racial stereotypes, and the theories of social Darwinists. But they have no home in our Constitution or its original understanding. In this country, the federal government “deriv[es] its powers directly” from the sovereign people, McCulloch v. Maryland, 4 Wheat. 316, 404–405 (1819), and is empowered to act only in accord with the terms of the written Constitution the people have approved, Marbury v. Madison, 1 Cranch 137, 176–177 (1803). Empires and duchies in Europe may have subscribed to the “doctrine . . . that the people were made for kings, not kings for the people.” The Federalist No. 45, p. 289 (C. Rossiter ed. 1961) (J. Madison). “Monarchical and despotic governments” may possess the power to act “unrestrained by written constitutions.” Downes, 182 U. S., at 380 (Harlan, J., dissenting). But our Nation’s government “has no existence except by virtue of the Constitution,” and it may not ignore that charter in the Territories any more than it may in the States. Id., at 382. 

Agreed!  That has long been my view.  See, for example, this post: The Nonoriginalist Insular Cases, in which I call the Insular Cases "a nonoriginalist abomination."  Congratulations to originalist scholars Gary Lawson and Guy Seidman, whose outstanding and engaging book The Constitution of Empire is prominently cited.  And thanks to Justice Gorsuch for citing my article Originalism and Birthright Citizenship (in a "see also" cite in a footnote, but that's good enough for me).

I'd think there are five votes (maybe nine votes) to overrule the Insular Cases on originalist grounds if the issue gets to the Court.