Rethinking the Insular Cases?

The American Civil Liberties Union is asking the Supreme Court to revisit the Insular Cases, a set of decisions that created the category of unincorporated territory and doomed Puerto Rico to separate and unequal treatment from states.

It is rare for the Supreme Court to overturn its own decisions, but it has happened. The ACLU wants the court to reconsider the Insular Cases when it examines the constitutionality of the PROMESA Fiscal Oversight and Management Board in October.

The Insular Cases — “insular” referring to islands — include language Americans would consider extremely offensive today. They were decided by the same court that decided Plessy vs. Ferguson, the infamous “separate but equal” legislation that was overturned in the 20th century. The overall theme of the cases is that the U.S. Constitution doesn’t apply to Puerto Rico and other island territories.

The court claimed that the island territories were “inhabited by alien races,” and speculated that these inhabitants couldn’t appreciate or participate in “Anglo-Saxon” customs like trial by jury or self-government. There were concerns about conferring citizenship on “savage tribes” and suggestions that people in these territories were not ready to live as Americans did.

Judge Juan Torruella, among others, has argued forcefully against the Insular Cases, claiming that these decisions are outdated and un-American. Like Plessy vs. Ferguson, the Insular Cases would not have been decided as they were if they had come before the Supreme Court today.

The Supreme Court is not obligated to include the Insular Cases in their consideration of the PROMESA board question in October. The court may not agree that there is a direct connection between the cases of Financial Oversight Board v. Aurelius Investment, and the cases consolidated with it, and the Insular Cases.

The ACLU has asked, in a “friend of the court” brief, that the Supreme Court not use the Insular Cases to make their decision about the oversight board. Further, they say, “the Court should take this opportunity to overrule them once and for all.”

“Wrong when they were decided,” the ACLU says, “they are even more objectionable over a century later.”

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