Insular Cases

The Insular Cases are a series of opinions by the U.S. Supreme Court in 1901, about the status of U.S. territories acquired in the Spanish–American War, and the periods shortly thereafter.[1] When the war ended in 1898, the United States had to answer the question of whether or not people in newly acquired territories were citizens, a question the country had never faced before. The preliminary answer came from a series of Supreme Court rulings, now known as the Insular Cases, which responded to the question of how American constitutional rights apply to those in United States territories. The Supreme Court held that full constitutional protection of rights does not automatically (or ex proprio vigore—i.e., of its own force) extend to all places under American control. This meant that inhabitants of unincorporated territories such as Puerto Rico—"even if they are U.S. citizens"—may lack some constitutional rights (e.g., the right to remain part of the United States in case of de-annexation).[2] Today, many legal scholars refer to the Insular Cases as a constitutional justification for colonialism and annexation of places not within United States boundaries.[3] The Insular Cases "authorized the colonial regime created by Congress, which allowed the United States to continue its administration—and exploitation—of the territories acquired from Spain after the Spanish–American War."[4] These Supreme Court rulings allowed for the United States government to extend unilateral power over these newly acquired territories.

The Court also established the doctrine of territorial incorporation, under which the Constitution applied fully only in incorporated territories such as Alaska and Hawaii. Incorporated territories are those that the U.S. Federal Government deems on a path to statehood. Meanwhile, the Supreme Court ruled the Constitution applied only partially in the newly unincorporated Puerto Rico, Guam and the Philippines. The Supreme Court created the distinction that unincorporated territories were not on the path to statehood, which effectively allowed for the Constitution to apply differently.[5]

The term "insular" signifies that the territories were islands administered by the War Department's Bureau of Insular Affairs. Today, the categorizations and implications put forth by the Insular Cases still govern the United States' territories.

Background

In 1898, the United States signed the Treaty of Paris (which entered into force April 11, 1899), which ended the Spanish–American War and granted the United States the Philippines, Puerto Rico, and Guam. Additionally, Cuba remained under the jurisdiction of the United States Military Government until its independence on May 20, 1902. Since there was nothing in the United States Constitution about governing newly acquired territories, the government used the guideline from Title IX of the Treaty of Paris. Those that were born in Spain but living in one of the territories, peninsulares, "could retain their Spanish citizenship", or even eventually have the option to become United States citizens.[3] Title IX of the Treaty of Paris did not grant the same rights to the indigenous population. Edguardo Melendez writes, "Puerto Ricans and Filipinos—'the natives of the islands'—not only remained colonial subjects but became stateless peoples too: they were denied the right to keep their Spanish citizenship, as well as their right to become U.S. citizens."[3]

After Title IX of the Treaty of Paris came the Foraker Act of 1900, which established American rule in Puerto Rico for all of the twentieth century.[3] The act allowed the United States to appoint the governor, a portion of the legislature, and the entirety of the Supreme court.[3] These two documents precede the Insular Cases and set a precedent on the status of the United States' new territories prior to the Supreme Court's rulings.

In addition to the Treaty of Paris and the Foraker Act, the Citizenship Clause found within the 14th Amendment of the United States Constitution informed the Insular Case decisions. Lisa Marie Perez of the Virginia Law Review writes "The Citizenship Clause of the Fourteenth Amendment provides that 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.'"[6] However, the Insular Cases soon set a precedent that the territories are not inherently part of the United States and therefore the Citizenship Clause does not automatically apply.[6] Furthermore, the Citizenship Clause was crucial throughout the 1800s in the United States as the country expanded and full citizenship was extended. Yet, the discussion never centered around citizenship in terms of overseas expansion. Soon, the precedent from the Insular Cases became very different from early interpretations of the Citizenship Clause.[7][8]

Unincorporated territories and other Insular Case rulings

Unlike many other United States Supreme Court rulings, single Insular Case decisions did not create sweeping change. Together they create a doctrine allowing for the United States’ colonial expansion and governance. The most important doctrinal lines from the Insular Cases include the idea of incorporated and unincorporated territories and the overarching principle that the Constitution does not inherently extend to unincorporated territories.[9] Certain Insular Case rulings had a greater impact on the legacy of the Insular Cases than others, which are discussed below.[10]

For example, the first Insular Case Downes v. Bidwell (1901) created the distinction between incorporated and unincorporated territories. The Supreme Court came to this decision by examining Congress’ right to impose tariffs on states and territories. Bartholomew Sparrow writes that in Downes v. Bidwell (1901), "the Court found that Congress could tax trade between Puerto Rico and the states. Puerto Rico was thus not a part of the United States for tariff purposes—contrary to the Uniformity Clause."[11] Although the Uniformity Clause states that Congress must enforce tariffs equally throughout the United States, the Supreme Court created a distinction between territories that were fully part of the union and those that were not, allowing them to ignore the Uniformity Clause.[3] The line drawn by the Supreme Court created "incorporated territories", those destined to be states, and "unincorporated territories", which were not on the path to statehood. In 1901 and the era of the Insular Cases, the areas that became unincorporated territories were Puerto Rico, Guam, and the Philippines. With the establishment of the legality of unincorporated territories, the Court also found that in these said territories, the Constitution "did not apply in full".[11] This means the Constitution does not extend "ex proprio vigore" or by its own force to unincorporated territories.[11] Instead, it could be extended at Congress’ discretion. The lines of reasoning from Downes v. Bidwell (1901) created legal precedent for the remainder of the Insular Cases.

Another noteworthy Insular Case closely related to Downes v. Bidwell (1901) is De Lima v. Bidwell (1901). In De Lima v. Bidwell (1901), the Supreme Court found "Puerto Rico was part of the United States for the purpose of the Uniformity Clause."[11] Therefore, duties could not be collected from Puerto Rico. The Supreme Court set alternative precedents in Downes v. Bidwell (1901) and De Lima v. Bidwell (1901) based on the differing interpretation of the Uniformity Clause of the United States Constitution and the subsequent implications of these rulings.

In Balzac v. Puerto Rico (1922), the Supreme Court found that Puerto Ricans, extended statutory citizenship by the Jones Act (1917), are not guaranteed a trial by jury, an inherent aspect of the United States Constitution.[11] Similarly, in Dorr v. United States (1904), the Supreme Court ruled against right to trial by jury for Philippines residents, another unincorporated territory at the time.[11] These two cases exemplify the idea implemented by the Insular Cases that the Constitution does not automatically extend to territories "ex proprio vigore", or by its own force.

The last incorporated territory: Palmyra Island

In contrast, by the court's distinction, the United States has only one incorporated territory left now: the United States Territory of Palmyra Island, a remote, uninhabited coral atoll in the middle of the Pacific Ocean. It had been part of the incorporated[12] Territory of Hawaii until 1959, when Palmyra was deliberately excluded from the new State of Hawaii by the Hawaii Admission Act, so Palmyra was left as a remnant of the old federal territory,[13] still "incorporated", so the Constitution applies there in full.[14]

List of the Insular Cases

Various authorities have listed what they consider are the legitimate constituents of the Insular Cases.

Juan R. Torruella, a judge on the U.S. Court of Appeals for the First Circuit (the federal appeals court with jurisdiction over the Federal Court for the District of Puerto Rico) considers that the landmark decisions consisted of six fundamental cases only, all decided in 1901: "strictly speaking the Insular Cases are the original six opinions issued concerning acquired territories as a result of the 1898 Treaty of Paris".[15] These six cases were:[16]

Other authorities, such as José Trías Monge, former Chief Justice of the Puerto Rico Supreme Court, states that the list also includes these additional two cases also decided in 1901:[17]

  • Dooley v. United States, 183 U.S. 151 (1901)
  • Fourteen Diamond Rings v. United States, 183 U.S. 176 (1901)

Law professor Pedro A. Malavet wrote in his book America's Colony: The Political and Cultural Conflict Between the United States and Puerto Rico that while many law experts include cases from 1903 to 1979, some scholars limit the number of cases in the list to just nine, adding Crossman v. United States, 182 U.S. 221 (1901).[18]

The U.S. Congress passed a resolution that collected the relevant records, briefs, and oral arguments of the 1901 cases concerning the U.S. Territories. In the compilation, the cases considered at the time of their decision as the Insular Cases were DeLima, Goetze, Dooley, Dooley, Armstrong, Downes, Crossman, and Huus.

Six of the nine Insular Cases only involve Puerto Rico.[18]

Constitutional law professor Efrén Rivera-Ramos argues that the "Insular Cases" designation has been extended beyond the first nine cases in 1901 to include additional cases decided between 1903 and 1914:[19]

  • Hawaii v. Mankichi, 190 U.S. 197 (1903)
  • Gonzales v. Williams, 192 U.S. 1 (1904)
  • Kepner v. United States, 195 U.S. 100 (1904)
  • Dorr v. United States, 195 U.S. 138 (1904)
  • Mendozana v. United States, 195 U.S. 158 (1904)[20]
  • Rasmussen v. United States, 197 U.S. 516 (1905)
  • Trono v. United States, 199 U.S. 521 (1905)
  • Grafton v. United States, 206 U.S. 333 (1907)
  • Kent v. Porto Rico, 207 U.S. 113 (1907)
  • Kopel v. Bingham, 211 U.S. 468 (1909)
  • Dowdell v. United States, 221 U.S. 325 (1911)
  • Ochoa v. Hernández, 230 U.S. 139 (1913)
  • Ocampo v. United States, 234 U.S. 91 (1914)

The Insular Cases, hence, often include:[21]

  • DeLima v. Bidwell, 182 U.S. 1 (1901); Argued: January 8–11, 1901; Decided: May 27, 1901
  • Goetze v. United States, 182 U.S. 221 (1901); Argued: December 17–20, 1900; January 14–15, 1901; Decided: May 27, 1901
  • Armstrong v. United States, 182 U.S. 243 (1901); Argued: January 8–11, 1901; Decided: May 27, 1901
  • Downes v. Bidwell, 182 U.S. 244 (1901); Argued: January 8–11, 1901; Decided: May 27, 1901
  • Huus v. New York & Porto Rico S.S. Co., 182 U.S. 392 (1901); Argued: January 11, 14, 1901; Decided: May 27, 1901
  • Dooley v. United States, 183 U.S. 151 (1901); Argued: January 8–11, 1901. Decided: December 2, 1901
  • Fourteen Diamond Rings v. United States, 183 U.S. 176 (1901); Argued: December 17–20, 1900. Decided: December 2, 1901
  • Hawaii v. Mankichi, 190 U.S. 197 (1903)
  • Kepner v. United States, 195 U.S. 100 (1904)
  • Dorr v. United States, 195 U.S. 138 (1904)
  • Gonzales v. Williams, 192 U.S. 1 (1904)
  • Rasmussen v. United States, 197 U.S. 516 (1905)
  • Dowdell v. United States, 221 U.S. 325 (1911)
  • Ocampo v. United States, 234 U.S. 91 (1914)
  • Balzac v. Porto Rico, 258 U.S. 298 (1922)
  • Torres v. Puerto Rico, 442 U.S. 465 (1979)

Political reception

The Insular Cases came at a time when America was building its empire. Throughout history, empire building and colonial expansion have been a contentious topic. The reaction within the United States to the Insular decisions was no different, with both supporters and dissenters voicing their opinions. Furthermore, Bartholomew Sparrow notes that almost all of the Insular Case opinions were 5–4 within the Supreme Court, demonstrating the contentious nature of the topic even from the highest voice of law in the United States.[11] In Downes v. Bidwell (1901), the Supreme Court reached a decision "'after one of the most spirited discussions ever held within the sacred circle of the Supreme Court bench,’ the Associated Press reported."[11]

Reactions to the Insular Cases also exemplify the divide that existed at the time in the United States government surrounding empire building. Republicans, who favored expansion and authored the Foraker Act supported the decisions: "the decision is a complete vindication of the position held by the Republican party with respect to the power of Congress to legislate for Porto Rico and the Philippines."[11] Additionally, "Solicitor General John Richards noted, 'they sustain to the fullest extent the so-called insular policy of the administration. The government now has the sanction of the Supreme Court for governing these islands as their needs require.'"[11] These examples show the support for the decisions at the time they were handed down.

However, there were many who did not support the decisions. Many former congressman spoke out against the decisions. Charles E. Littlefield wrote in the Harvard Law Review, "the Insular Cases, in the manner in which the results were reached, the incongruity of the results, and the variety of inconsistent views expressed by the different members of the court, are, I believe, without parallel in our judicial history."[11] George. S. Boutwell, former congressman and U.S. Senator commented, "the opinion of the majority seems to justify the conclusion that the power of acquiring territories is an indefinite power."[11] Thus, the divisive nature of the Insular decisions was revealed through the opinions held by those active in government.

Furthermore, the announcement of the Downes v. Bidwell (1901) decision drew the largest crowd in Supreme Court history, displaying the interest the American public had in the outcome of the case. Newspapers, often a beacon of public opinion, around the United States also took great interest in the outcome of the Insular Cases. Many newspapers were highly critical of the decisions.[11] The New York Herald wrote that the Supreme Court “by a bare majority of one holds that the constitution is supreme only in the States, and that a million square miles, or one-fourth of the national domain, and ten million people are subject to no law but the will of Congress…”[11] Furthermore, the Denver Post exclaimed the "Downes decision 'at one fell swoop' brought the United States 'into the ownership of colonies and putting us into the rank of land grabbing nations of Europe."[11] The commentary from local newspapers is important because it is reflective of the opinions of the people living in the areas. The assessments from the newspapers indicate the decisions were not popular with many citizens.

Criticism

Former Puerto Rico Supreme Court Chief Justice José Trías Monge contends that the Insular Cases were based on premises that would be considered bizarre today, such as:[22]

  • Democracy and colonialism are "fully compatible".
  • There is "nothing wrong when a democracy such as the United States engages in the business of governing other" subjects that have not participated in their democratic election process.
  • People are not created equal, some races being superior to others.
  • It is the "burden of the superior peoples, the white man's burden, to bring up others in their image, except to the extent that the nation which possesses them should in due time determine".[22]

In Harris v. Rosario, 446 U.S. 651 (1980), the Court applied Califano v. Torres, 435 U.S. 1 (1978) in a succinct per curiam order, holding that less aid to Puerto Rican families with dependent children did not violate the Equal Protection Clause, because in U.S. territories Congress can discriminate against its citizens applying a rational basis review. Justice Marshall wrote a staunch dissent, noting that Puerto Ricans are U.S. citizens and that the Insular Cases are questionable.

In Torres v. Puerto Rico, 442 U.S. 465 (1979), cited above, Justice Brennan, with whom Justice Stewart, Justice Marshall, and Justice Blackmun joined, concurring in the judgment, cited Reid v. Covert, 354 U.S. 1, 14 (1957), in which Justice Black said the "concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government".

See also

References
  1. Lin, Tom C.W., Americans, Almost and Forgotten, 107 California Law Review (2019)
  2. Levinson, Sanford & Sparrow, Bartholomew H. (2005). "Introduction". In Levinson, Sanford & Sparrow, Bartholomew H. (eds.). The Louisiana Purchase and American Expansion: 1803–1898. Lanham, Md.: Rowman and Littlefield Publishers. p. 15. ISBN 9780742549838. OCLC 58976044.
  3. Meléndez, Edgardo (Spring 2013). "Citizenship and the Alien Exclusion in the Insular Cases: Puerto Ricans in the Periphery of American Empire". Centro. 25 (1): 106–145.
  4. Torruella, Juan (Fall 2013). "Ruling America's Colonies: The 'Insular Cases'" (PDF). Yale Law & Policy Review. 32 (1): 57–95. JSTOR 23736226.
  5. "Chapter Three: American Samoa and the Citizenship Clause: A Study in Insular Cases Revisionism". Harvard Law Review. 130 (6: Developments in the Law–The U.S. Territories): 1680–1693. April 2017. PDF Archived 2017-10-27 at the Wayback Machine.
  6. Perez, Lisa Marie (June 2008). "Citizenship Denied: The 'Insular Cases' and the Fourteenth Amendment". Virginia Law Review. 94 (4): 1029–1081. JSTOR 25470577.
  7. Weare, Neil (Spring 2017). "Citizenship in U.S. Territories: Constitutional Right or Congressional Privilege?". Centro Journal. 29 (1): 138–163. SSRN 2927402.
  8. Blocher, Joseph (September 19, 2018). "Puerto Rico and the Right of Accession". Yale Law School Legal Scholarship Repository. Retrieved November 10, 2019.
  9. Lin, Tom C.W., Americans, Almost and Forgotten, 107 California Law Review (2019)
  10. Levinson, Sanford (Summer 2000). "Why the Canon Should Be Expanded to Include the Insular Cases and the Saga of American Expansionism". Constitutional Commentary. 17 (2): 241–266.
  11. Sparrow, Bartholomew H. (November 2005). "The Public Response to Controversial Supreme Court Decisions: The Insular". Journal of Supreme Court History. 30 (3): 197–210. doi:10.1111/j.1059-4329.2005.00106.x.
  12. "Chap. 339: An Act to Provide a Government for the Territory of Hawaii". Act of April 30, 1900 (PDF). United States, Fifty-Sixth Congress, Session I. §§ 4–5, pp. 141–142.
  13. "Little Palmyra Atoll Isn't Celebrating". Daytona Beach Morning Journal. Daytona Beach, Florida. Associated Press. March 14, 1959. p. 11. Retrieved March 13, 2018.
  14. "GAO/OGC-98-5 – U.S. Insular Areas: Application of the U.S. Constitution". U.S. Government Printing Office. November 7, 1997. Archived from the original on September 27, 2013. Retrieved March 13, 2018.
  15. Torruella, Juan R. (2001). "One Hundred Years of Solitude: Puerto Rico's American Century". In Duffy Burnett, Christina & Marshall, Burke (eds.). Foreign in a Domestic Sense: Puerto Rico, the American Expansion, and the Constitution. Durham, N.C.: Duke University Press. p. 243. doi:10.1215/9780822381167-012. ISBN 9780822326892. (Registration/subscription required for DOI version.)
  16. Torruella, Juan R. (2001). "One Hundred Years of Solitude: Puerto Rico's American Century". In Duffy Burnett, Christina & Marshall, Burke (eds.). Foreign in a Domestic Sense: Puerto Rico, the American Expansion, and the Constitution. Durham, N.C.: Duke University Press. p. 248. doi:10.1215/9780822381167-012. ISBN 9780822326892. (Registration/subscription required for DOI version.)
  17. Trías Monge, José (2001-07-20). "Injustice According to Law: The Insular Cases and Other Oddities". In Duffy Burnett, Christina & Marshall, Burke (eds.). Foreign in a Domestic Sense: Puerto Rico, the American Expansion, and the Constitution. Durham, N.C.: Duke University Press. p. 239. ISBN 9780822326892.
  18. Malavet, Pedro A. (2004). America's Colony: The Political and Cultural Conflict Between the United States and Puerto Rico. New York: NYU Press. p. 38. ISBN 9780814756805. OCLC 233535035. Retrieved December 8, 2009.
  19. Rivera Ramos, Efren (2001). "Deconstructing Colonialism". In Duffy Burnett, Christina & Marshall, Burke (eds.). Foreign in a Domestic Sense: Puerto Rico, the American Expansion, and the Constitution. Durham, N.C.: Duke University Press. p. 115–116, note 5. ISBN 9780822326892.
  20. As cited in Rivera Ramos, Efren (1996). "The Legal Construction of American Colonialism: The Insular Cases (1901–1922)" (Microsoft Word). Revista Jurídica de la Universidad de Puerto Rico. 65. However the Supreme Court opinion spelling is "Mendezona".
  21. Rivera Ramos, Efren (1996). "The Legal Construction of American Colonialism: The Insular Cases (1901–1922)" (Microsoft Word). Revista Jurídica de la Universidad de Puerto Rico. 65: 240–241 (page 7 of the Word document). The name Insular Cases is normally given to a series of nine decisions rendered in 1901. Seven of those cases arose from Puerto Rico, one from Hawaii and one from the Philippine Islands. However, some authors have extended the name to another set of cases decided from 1903 to 1914, dealing with the same or related issues, and, finally, to a decision handed down in 1922. Of the thirteen cases belonging to the second group, five originated in actions relating to Puerto Rico, six referred to the Philippines, one to Hawaii and another to Alaska. The 1922 case dealt with the status of Puerto Rico. I will refer to all of them as the Insular Cases because all the issues were related, the second group of cases rested on the decisions made in 1901, and the 1922 case, Balzac, must be read as the culmination of the series.
  22. Trías Monge, José (2001). "Injustice According to Law: The Insular Cases and Other Oddities". In Duffy Burnett, Christina & Marshall, Burke (eds.). Foreign in a Domestic Sense: Puerto Rico, the American Expansion, and the Constitution. Durham, N.C.: Duke University Press. p. 243. ISBN 9780822326892.

Further reading
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