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ACLU et al.: Overrule the Insular Cases
Michael Ramsey

In a cert-stage amicus brief recently submitted by the ACLU and multiple other civil rights organization in Fitisemanu v. United States, a call to overrule the Insular Cases on originalist grounds:

... [M]embers of the Court have long criticized the Insular Cases. Almost no one defends the decisions at this point. This case provides the ideal opportunity to overrule them once and for all.

The Court should do so for two main reasons. First, the Insular Cases are “egregiously wrong as a matter of law.” See Ramos v. Louisiana, 140 S. Ct. 1390, 1414 (2020) (Kavanaugh, J., concurring) (discussing considerations guiding inquiry on whether to overrule constitutional decision). The territorial incorporation doctrine has no foundation in either the Constitution’s text or history and cannot be squared with our structure of a limited federal government of enumerated powers. It is an anomaly lacking a “home in our Constitution or its original understanding.” Vaello Madero, 142 S. Ct. at 1554 (Gorsuch, J., concurring). ...

A. The Insular Cases’ principle of “unincorporated territories” has no foundation in the text or original understanding of the Constitution.

Territorial incorporation was, from the start, at war with bedrock principles of a national government constrained by the Constitution. By 1901, it was well settled that in governing territories, “Congress [was] supreme” and held “all the powers of the people of the United States . . . .” First Nat’l Bank v. Yankton Cnty., 101 U.S. 129, 133 (1879). But Congress’ authority over territories yielded to “restrictions . . . expressed” or “necessarily implied” in the Constitution. Murphy v. Ramsey, 114 U.S. 15, 44 (1885). Even as it exercised its broad powers to govern national lands, Congress
could not act outside of the Constitution’s boundaries. See, e.g., Reynolds v. United States, 98 U.S. 145, 162 (1878) (“Congress cannot pass a law for the government of the Territories . . . prohibit[ing] the free exercise of religion.”).

The Insular Cases ignored these elemental principles in concluding that parts of the Constitution could be withheld until Congress saw fit to “incorporate” territories. As dissenting Justices explained at the time the doctrine was invented, the decisions carved out a novel and unfounded exception to the precept of limited national government with no mooring in the Constitution’s text or history. See Downes, 182 U.S. at 380 (Harlan, J., dissenting) (notion that territories could be held “as mere colonies” was “inconsistent with the spirit and genius, as well as the words, of the Constitution”).

That departure was anomalous when written. Not even the Justices who fabricated the Insular Cases’ doctrine understood their efforts to be grounded in the Constitution’s text or meaning.

Agreed (even if they didn't cite me.)

(Via Ed Whelan at NRO Bench Memos, who notes a comparison with Justice Alito's leaked draft in Dobbs.)

Aside: I joined a law professors amicus brief, also supporting the petition in Fitisemanu, that does not take on the Insular Cases directly; it argues that in any event the Insular Cases should not be extended to deny birthright citizenship to persons born in the territories.