Concurring in United States v. Vaello Madero last Spring, Justice Gorsuch on originalist grounds called for overruling the Insular Cases, the series of early twentieth-century decisions that concluded the Constitution doesn’t fully apply in overseas U.S. territories. As he put it:
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.
The Court now has an opportunity to take on the Insular Cases directly in Fitisemanu v. United States, now pending on petition for writ of certiorari. The issue in that case (as discussed several times on this blog) is:
Whether persons born in United States territories are entitled to birthright citizenship under the 14th Amendment’s citizenship clause, including whether the Insular Cases should be overruled.
As I’ve written at length here, I think the original meaning of the citizenship clause (“All persons born … in the United States … are citizens of the United States”) is clear and supports the petitioners in Fitisemanu. (I also joined this amicus brief supporting petitioners, principally drafted by Professor Sam Erman of the University of Michigan law school, along with other professors from a range of methodological and political perspectives.)
Despite the clarity of the citizenship clause, the court of appeals in Fitisemanu (reversing the district court and over a dissent) held that the clause did not apply to persons born in U.S. territories, principally relying on the Insular Cases.
I entirely agree with Justice Gorsuch’s originalist assessment of the Insular Cases. The short of it is that when the United States acquired overseas territories in the Spanish-American War, for racist reasons it didn’t want to fully integrate them into the U.S. polity, and in particular it did not want to extend U.S. citizenship to the territories’ substantial non-white populations. A narrow nonoriginalist majority of the Supreme Court went along with this project in the Insular Cases, relying expressly on racist policy considerations, by creating a category of “unincorporated” territories to which the Constitution didn’t fully apply. Justice Harlan (who also dissented in Plessy v. Ferguson around the same time), dissented on originalist grounds, arguing quite rightly that the majority had simply made this idea up without constitutional foundations.
Recently in Dobbs the Court’s originalist-oriented majority overturned a longstanding decision, Roe v. Wade, which it said had no basis in the Constitution’s text or history. The same is true of the Insular Cases. Overruling them seems at least as appropriate — indeed, much more so, given their sorry origins. And it would demonstrate that originalist judging is not (as some have charged) just a cover for a conservative agenda.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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