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The Insular Cases Initially Did Not Treat Incorporated Territories Differently from Unincorporated Territories With Respect to Birthright U.S. Citizenship
Andrew Hyman

The Insular Cases decided that federal territories can be divided up into incorporated ones and unincorporated ones, with more federal constitutional rights applicable in the former than the latter.  That framework has come in for a lot of criticism, both because of the racially-tinged language that was initially used to justify it, and also because of the thin support for it in the constitutional text or in pre-ratification history.  There is currently ongoing litigation to overrule the Insular Cases.

But there is an important part of the Insular Cases that has almost nothing to do with territorial incorporation and nothing to do with racism.  Downes v. Bidwell (1901) was one of the Insular Cases, and five justices in that case (Brown, Fuller, Harlan, Brewer, and Peckham) quoted the Citizenship Clause of the Fourteenth Amendment while saying that that clause did not apply differently in unincorporated versus incorporated territories.  Whatever else they disagreed about, those five judges agreed on that basic principle that territories should be treated equally under the Citizenship Clause.  

In my view, Justice Henry Brown correctly interpreted the original meaning of the Citizenship Clause in Downes, as being completely inapplicable to birth in any federal territories.  His opinion was not based on overt racism, and it applied equally to both incorporated and unincorporated territories.  There was also a concurring opinion in Downes by Justice White (joined by Shiras and McKenna), and the Court later adopted it as a controlling opinion, but White’s opinion never mentioned the Fourteenth Amendment much less the Citizenship Clause.  

The current litigation about birthright constitutional citizenship in American Samoa ought to be resolved on originalist grounds rather than on the basis of wanting to get rid of the Insular Cases, which have not even been consistent on this point.  As Justice Brown’s opinion shows, the current treatment of citizenship in American Samoa can be justified on originalist grounds without treating unincorporated territories worse than incorporated territories.

The Citizenship Clause says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Instead of talking about history, or context, let’s briefly consider the most important thing of all which is what the clause says and doesn’t say.

First, the Citizenship Clause could have easily been extended to territories if the clause had been written like this: “All persons born or naturalized in any place subject to the jurisdiction of the United States are citizens of the United States….”  This is why Justice Brown said in Downes that the Citizenship Clause “is not extended” to territories (D.C. is an exception which I won’t address here).

Second, the text of the Citizenship Clause does not mention territories, even though that would have been easy.  As Congressman James Ashley pointed out repeatedly in 1867, it would have been very simple to write: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state or territory wherein they reside” (emphasis added).  See 40th Congress 2nd Session Cong. Globe 117 (December 10, 1867).

Third, the Citizenship Clause says that the persons entitled to birthright U.S. citizenship “are citizens of … the state wherein they reside” which suggests residence at birth within a state.  This suggestion could have been easily eliminated by including a single extra word: “are citizens of … the state wherein they might reside.”  As the Tenth Circuit recently explained, “Another textual consideration suggesting the Citizenship Clause’s exclusive application to state-born residents is its effect of rendering persons born in the United States ‘citizens of the United States and of the State wherein they reside.’”

Fourth, Judge Lucero in that Tenth Circuit case wrote that the Citizenship Clause might have been phrased differently if it really was meant to be inapplicable in the territories: “All persons born or naturalized in the several states, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”  The problem with that phrasing is that being subject to the jurisdiction of the several states would mean being subject to the jurisdiction of all of them, which is basically impossible, and that would explain why the clause was not phrased that way.  

The last of these four textual features does not seem persuasive, for the reasons explained.  The first three may not be airtight, but are pretty close to being airtight in my opinion.  Prof. Michael Ramsey has not commented on the first one, as far as I know.  As to the second, he has suggested that territorial citizenship was not a high priority because a territory was not a sovereign entity, but territorial citizenship was a common status in the decades leading up to the Civil War (e.g. see this discussion by Joseph Story).  As to the third, Mike has read the Citizenship Clause as containing an implicit “if any” so it reads like this: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state if any wherein they reside.”  Sometimes it is okay to judicially correct an error in a statute (e.g. by inserting “if any”), but only if “failing to do so would result in a disposition that no reasonable person could approve” (per Justice Scalia).  The words “if any” could have been reasonably omitted to protect indigenous cultures from the imposition of federal oversight and scrutiny, while allowing a greater degree of self-government.  With respect to cultures that are not indigenous, the words “if any” could have been reasonably omitted to make territorial status less appealing, so that statehood would be sought and achieved sooner.

Finally, a word about Justice Brown and his reputation.  Readers may recall that he authored the atrocious majority opinion in Plessy v. Ferguson.  But in Downes he was right, and no one should hesitate about saying so merely because of Plessy. After all, even as to a horrible case like Dred Scott, the prevalent attitude of leaders in the 39th Congress was to condemn what was awful while acknowledging what was valid.  For example, the majority wrote this in Dred Scott: “The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing.”  This line was favorably mentioned several times by Republicans in Congress during 1866 alone, including by Senator Charles Sumner (R-MA), Congressman William Newell (R-NJ), Senator John Henderson (R-MO), Senator Richard Yates (R-IL), and Congressman John Bingham (R- OH).  We should follow their virtuous example, by being careful not to condemn Justice Brown’s opinion in the Insular Cases just because we rightly condemn another opinion of his.  That’s especially true because his opinion in Downes coincided with that of a lot of reputable non-judges of his day, including Harvard Law School Dean Christopher C. Langdell, who wrote in an 1899 law review article about the framers of the Citizenship Clause: “if they had contemplated Territories as well, they certainly would have said ‘citizens of the State or Territory in which they reside.'"

FURTHER THOUGHTS:  I’d like to elaborate a little bit on point four in this blog post, which discussed why the words “the several states” were not included in the Citizenship Clause.  In my view, that issue is a wash.  Looking solely at that issue by itself, the word choice could hypothetically have been because (as Judge Lucero argued) the framers understood “the United States” to include all federal territories whereas “the several states” did not.  But that word choice could just as easily have been because the framers wanted to make sure people born while residing in the District of Columbia would be entitled to constitutional birthright U.S. citizenship even though people born in the federal territories would not; Justice Henry Brown plausibly argued in Downes that D.C. is part of the narrow meaning of the United States that excludes federal territories, even if D.C. is not part of the narrower meaning of “the several states.”  Justice Brown’s argument was plausible, and so is the similar argument that the framers’ word choice may have been because they wanted to make sure birthright U.S. citizenship would apply in federal enclaves (which are not subject to the jurisdiction of the several states and where federal authority is the same as it is in D.C.).