“Never during my three years as a law student or two years as a law clerk at federal courts did I hear of the ‘Insular Cases.’ Yet the series of US Supreme Court decisions gathered under this name established a doctrine, in force to this day, determining that the US Constitution does not apply fully to territories acquired through conquest after the Spanish-American War and the signing of the Treaty of Paris in 1898.” So writes Harvard Law School Dean Martha Minow in her Preface to Reconsidering the Insular Cases: The Past and Future of the American Empire, the latest publication from Harvard Law School’s Human Rights Program. The volume grew out of a February 2014 conference at Harvard that was organized to interrogate this century-old series of Supreme Court decisions that, judging by Minow’s experience, aren’t often given the attention they deserve. As Juan R. Torruella, Puerto Rico-born Judge of the US Court of Appeals for the First Circuit expressed in his conference keynote—included in the printed volume—“the Insular Cases represent classic Plessy v. Ferguson legal doctrine and thought that should be eradicated from present-day constitutional reasoning.”
In his Introduction to the book, excerpted below, Harvard Law School professor Gerald L. Neuman further elaborates on the need to continually question a doctrine that raises crucial issues of both constitutional law and human rights.
The US Supreme Court’s decisions in the Insular Cases of 1901 provided the legal framework for the governance of a colonial empire in the Atlantic and the Pacific, loosening the constraints of constitutional principle in order to facilitate rule over the subjected areas and their inhabitants. In the wake of the Spanish-American War and the transfer of several of Spain’s imperial possessions, the metaphorically expressed question “Does the Constitution follow the flag?” became newly urgent. The Supreme Court majority gave a new answer: not entirely.
The most important of the 1901 decisions was Downes v. Bidwell, in which the court divided five to four in favor of congressional power to discriminate between the mainland and the new territories in customs matters. In retrospect, the crucial opinion was the concurrence of Justice Edward Douglass White. He accepted that the US Constitution governed the actions of the United States at any location, but he contended that it was still necessary to determine the appropriate geographical scope of each constitutional provision. The applicability of a constitutional limitation to a particular territory would depend on the situation of the territory and its relations to the United States. If the United States acquired a new territory and did not admit it as a state, then Congress could choose whether to “incorporate” the territory into the United States as an integral part or to treat it merely as a territory appurtenant to the United States. White thereby adopted a distinction that had been suggested by the political scientist Abbott Lawrence Lowell in an article in the Harvard Law Review, although White added some elements of his own in elaborating the consequences. For incorporated territories, the Bill of Rights and other constitutional limitations would apply in the usual way. For unincorporated territories, only “fundamental” restrictions on government power would apply. Moreover, an unincorporated territory could be kept in subordination indefinitely, without the prospect of future statehood. The United States had to have the same power to acquire and govern overseas territories and populations as the European colonial powers were exercising under international law.
The four dissenters protested in vain that the majority’s ruling departed from prior practice and constitutional values. In the years that followed, White’s concurring analysis gained the support of a majority and then, after the death of the steadfast dissenter John Marshall Harlan, unanimity. The term “Insular Cases” may refer either to the original set of decisions from 1901 or to the entire series of decisions from Downes v. Bidwell (1901) to Balzac v. Porto Rico (1922) that solidified this jurisprudence.
The doctrine of the Insular Cases has never been overruled, despite the tectonic shifts in constitutional law, international law, and human rights conceptions that have intervened since 1901. It continues to provide the foundation for governing inhabited territories and small islands without permanent populations. The doctrine is peripheral to the interests of most constitutional law scholars, but highly consequential for the four million people who live in Puerto Rico, the US Virgin Islands, American Samoa, Guam, and the Northern Mariana Islands. It affects their civil rights directly, and it affects all their rights by limiting their political rights, which in turn reduces their ability to influence the laws that regulate them. The federal government has taken steps to reform territorial relations on a noncolonial basis, but relics of colonialism remain.
A doctrine that produces such effects must be continually reexamined, and that is why the Human Rights Program at Harvard Law School is publishing this volume. The book results from a conference that Tomiko Brown-Nagin and I organized at the initiative of Dean Martha Minow, which took place on February 19, 2014. The book includes the vivid keynote address delivered by Judge Juan R. Torruella of the United States Court of Appeals for the First Circuit, as well as other chapters based on presentations from the conference.
When legal rules have imposed injustice, it becomes necessary to contemplate both how the rules could be reformed and what additional measures should be taken in response to the injustice. This volume considers changes to the constitutional framework, which ultimately would depend on approval by the Supreme Court, and three strategies that could remove territories from the field of application of the Insular Cases doctrine. These strategies are admission to statehood, full independence, and the less widely known alternative of independence accompanied by a compact (i.e., a treaty) of free association. Each alternative has disadvantages and advantages in relation to the others and to the current status quo.
Most of the chapters emphasize the example of Puerto Rico, which was one of the original targets of the Insular Cases doctrine and is now where more than 90% of the insular citizens live. As several authors observe, the Commonwealth of Puerto Rico has suffered severe economic distress in recent years, and its recovery efforts have been hindered by the limits on its political power. A 2012 referendum demonstrated the paucity of support for the commonwealth’s current governance framework. The path forward is complicated, however, by disagreements over the direction that reform should take and by the need to secure federal approval. Thus, recent events make the need to reconsider the doctrine and its alternatives particularly pressing.