By Howard Hills

ACLU calls on Supreme Court to renounce racist territorial judicial precedents

The ACLU wants the U.S. Supreme Court to overrule century old rulings it still relies on in modern era cases concerning the political status of Puerto Rico and other U.S. territories. In what appears a coordinated barrage of legal briefs, the ACLU is joined by territorial leaders, scholars and legal experts, all seeking to use litigation on a mostly unrelated case to overturn or fence in the controversial “Insular Cases” due to racist language and references in the original court opinions.

These remarkably similar “friend of court” legal briefs were filed in the name of former elected territorial leaders, non-profit territorial legal foundations, and even three judges from Guam, the Virgin Islands and Puerto Rico who served in local and federal trial and appellate courts in the territories.

According to recently filed legal arguments, federal territorial law emanating from the so-called “Insular Cases” is deemed by ACLU attorneys to “rest on racist assumptions that have no place in our constitutional law.”

Does that mean justices Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer are practicing racism by voting – as each has in the past – to uphold the Insular Cases?

It is well-known among legal historians the Supreme Court invented a neo-colonial status for Puerto Rico and other island possessions under the Insular Cases. Beginning with the 1901 case of Downes v. Bidwell, the Insular Cases deviated from anti-colonial traditions under which the U.S. Constitution applied directly to protect U.S. citizens in 32 territories incorporated into the union and admitted as states between 1796 and 1959.

Instead, by judicial edict the court brought into juridical existence the undefined status of “unincorporated” territory, placing Puerto Rico outside the direct protection of the U.S. Constitution. This meant Congress and the courts determined rights of the island people on a case by case basis.

Significantly, the original Insular Cases applied only to territories with non-citizen populations. Justice Harlan’s anti-imperialist dissent eloquently argued the U.S. can’t govern any territory or people outside the U.S. Constitution. That would have limited U.S. options upon acquiring new territory with a non-citizen population to a policy leading to nationhood and independence, or extending the Constitution with citizenship and incorporation leading to statehood.

I am among those who agree with Harlan’s dissent, but that’s irrelevant because the imperialist model for U.S. colonial rule over foreign lands and peoples – as endorsed by Harvard and Yale law professors in 1900 – was adopted by Congress and the federal courts in 1901, under the non-incorporation doctrine of the Insular Cases.

That ruling only deepened the tragedy of American colonial rule and war between the U.S. and the Philippine independence insurgency forces, after which the U.S. restored anti-colonial principles favoring independence as declared by Congress in 1916, finally leading to independence granted in 1946.

Meanwhile, the imperialist model of the Insular Cases for colonial rule over non-citizens was perversely misapplied by the U.S. Supreme Court in the 1922 case of Balzac v. Puerto Rico, denying Puerto Rico incorporation into the union under the Constitution even after Congress conferred statutory birthright U.S. citizenship for the territory in 1917.

Despite modern era conferral of American citizenship and U.S. recognition of each current territory’s right to a future status based on democratic self-determination, the ACLU is asking the high court to overrule the Insular Cases as unconstitutionally racist federal jurisprudence. The effect would be to apply the Constitution in all the territories as it applied historically in 32 incorporated territories that became states, even though admission to statehood would remain a political question subject Congressional disposition.

In “friend of the court” briefs the ACLU of Puerto Rico and ACLU of New York, as well as allied Puerto Rican law professors and distinguished territorial law scholars, have interceded as non-parties in a case challenging the federal financial control board law for Puerto Rico.

These “amici curiae” legal briefs take no position on issue before the court, which is whether the manner in which the board was appointed is constitutional. The court is expected to decide that case next month (Aurelius Investments LLC v. Commonwealth of Puerto Rico).

Legacy of racism and modern territorial law

The legal logic of the ACLU and territorial law professors seeking reversal of the Insular Cases is unequivocal.

Evidence offered of racist taint includes the composition of the court in 1901 when the Insular Cases were decided. The court members included all but two of the justices on the court five years earlier when the Plessy v. Ferguson ruling was handed down.

The ruling in Plessy infamously declaring “separate but equal” racial segregation constitutional was overturned in the famous 1954 landmark Supreme Court case Brown v. Board of Education. In 2019 the ACLU and allied legal scholars want to repeat history by winning reversal of Insular Cases as racist judicial doctrine.

There are, however, some inconvenient truths the ACLU and its academic allies choose to ignore.

First, the high court that overturned Plessy v. Ferguson in the 1954 case Brown v. Board of Education had almost the same composition of members who joined in the 1957 ruling in the Reid v. Covert case. That ruling affirmed the core constitutional jurisprudence in the Insular Cases.

In upholding the Insular Cases in Reid v. Covert, the justices noted racial and cultural attitudes of the court and the nation in 1901. However, the court chose pragmatic disposition of the Reid case, based in part on reference to the territorial law and jurisdictional precedent of the Insular Cases.

That complicates the simplistic narrative holding the Insular Cases, as interpreted by the courts in the modern era, equivalent or even comparable to racism in the now anachronistic original Insular Cases.

History, law and logic

The ACLU argues that racist attitudes of the court in the Plessy case are imputable to the overlapping roster of justices who handed down the Insular Cases.

The underlying logic is that Supreme Court justices are birds of a feather, so that racist justices who joined the Plessy majority flocked with other racist justices in the Insular Cases.

If that logic holds water, why wouldn’t the commitment to racial justice and equal political rights by the court in Brown v. Board of Education in 1954 be equally imputable to the overlapping roster of justices who upheld the Insular Cases in the Reid v. Covert ruling of 1957?

Even more pronouncedly than the Reid v. Covert ruling, the U.S. Supreme Court subsequently relied upon, expanded and upheld the Insular Cases in dozens of rulings. The list includes the 1976 case of Examining Board v. Flores De Otero, Bush v. Boumediene in 2008, and Puerto Rico v. Sanchez Valle in 2016, just to name a few.

Is the legacy of racist attitudes in the Insular Cases overtaken by intervening jurisprudence? That is a logical conclusion if the ACLU’s own syllogism imputing Plessy racism to Insular Cases is applied to Reid, Flores De Otero, Boumediene and Sanchez Valle, each a purified distillation of legal doctrine, the imperfections of which no longer include race based prejudice.

What would “overturning” the Insular Cases really mean?

In the 2016 Sanchez Valle ruling – authored by Justice Kagan – the high court rejected the arguments of local “autonomists” in Puerto Rico. Specifically, the court ruled that federal statutes authorizing establishment of the “commonwealth” regime of local home rule never created or vested a right to a zone of autonomous sovereignty.

The court found that local powers were limited to matters not otherwise determined under federal law, and all local matters remained within the reach of Congressional sovereign and supreme powers under the territorial clause of the Constitution.

This confirmed federal sovereign powers delegated to the local government created by Congress and organized under federal statutes are amendable and revocable. Notwithstanding an impassioned dissent by Justice Breyer espousing the feasibility of autonomist doctrine as an alternative to statehood or nationhood, what remains undeniable is that Congress repeatedly has suspended local constitutional and statutory law.

Simply stated, one Congress can not by statute limit a constitutionally reserved power of a later Congress to alter the status and rights of a territory under U.S. rule but not in a state. Even the Northwest Ordinance as the first federal territorial statute confirmed any form of local government in a territory established under federal law was “temporary” not permanent, subject to the territorial powers of Congress.

Thus, overturning the Insular Cases would not obviate the need for democratic self-determination in Puerto Rico to end the current territorial status in favor of statehood or nationhood. Those are the permanent status options recognized by the Constitution.

The ACLU argument that the Insular Cases can or should be overturned does not change the reality that the status quo is colonial. That’s true regardless of whether the current status as affirmed by the Supreme Court in modern times originally was established by Supreme Court justices in the past who had racist attitudes.

ACLU argues any court that relies on the Insular Cases is perpetuating racism. If that is true, why does ACLU argue that in the event the Insular Cases are not overturned in alternative the court should limit the scope of the Insular Cases to past rulings already decided?

If the court’s decisions on application of tariffs or jury trials in the territories are racist, isn’t it racist to let past racially tainted rulings stand? Not reversing but limiting past rulings to damage done under the Insular Cases logically would be complicity in racism.

If upholding the Insular Cases constitutes the practice of racism in our jurisprudence, doesn’t that mean Kagan, Bader Ginsburg and all the justices who join in such a ruling are practicing racism?

What if citizens in the territory seek adjudication of claims and rights relying on application of some so far untested provision of the Constitution under the Insular Cases, does that make those citizens racists for relying on that jurisprudence?

If the status of territories under the Insular Cases is overturned or limited without being replaced by a permanent constitutionally defined status based on democratic self-determination, by what standard would provisions of the Constitution be applied or determined inapplicable?

Should the court be changing the state of U.S. law on the sovereignty, nationality, citizenship and right of self-determination, or the options for a new and/or permanent political status? Isn’t that how the court found itself on a slippery slope by inventing the “unincorporated territory” status in the original Insular Cases?

In the Boumediene ruling Justice Kennedy noted that the “pragmatic” jurisprudence of the Insular Cases in modern times provides the best known and understood predicate for Congress and the people of each territory to address and resolve the question of a fully democratic future political status.

Does the ACLU really believe the court will end 120 years of territorial jurisprudence without any legal structure to replace it? Kennedy argues in the high court’s opinion in Boumediene that the “formalism” of fixed unambiguous Supreme Court jurisprudence would not lend itself to a sustainable and orderly status resolution process for the current territories.

Understanding citizenship under Insular Cases

The ACLU and law professors aligned with its call for reversal of the Insular Cases on grounds of racism make several presuppositions. The most questionable is to presuppose legal and cultural equivalence between between racial segregation of U.S. citizens in the states under Plessy, and Insular Case exclusion of non-citizens in overseas possessions from permanent political union under the U.S. Constitution.

The first complication in casual comparison of Plessy and Insular Cases is that the court’s territorial rulings applied only to non-citizens.

Specifically, it is conventional wisdom that Justice White’s concurring opinion in the Downes v. Bidwell ruling of 1901 has been embraced by succeeding court majorities as the judicial framework of territorial law for Puerto Rico. However, the court’s opinion by Justice Brown – in which White concurred – made it one of if not the most pivotal declaration in the original line of Insular Case rulings:

“In all these cases there is an implied denial of the right of the inhabitants to American citizenship until Congress by further action shall signify its assent thereto.”

Most observers and commentators have glossed over Brown’s clarity that Congress must declare and the courts must uphold a national policy on the sovereignty, nationality, citizenship of the territory and its non-citizen population. Only then could the court determine if the U.S. Constitution applied as it did in the 32 U.S. citizen populated territories that became states.

Thus, the racist attitudes expressed in the original Insular Cases arguably should have become as anachronistic for Puerto Rico as the law of those early cases when Congress granted birthright U.S. citizenship to the people of the territory in 1917.

It was not the court as composed in 1901 but the new and progressive majority of justices in 1922 – with names like Holmes and Brandeis – who refused to recognize equal rights of citizenship under the Constitution in Puerto Rico.

Instead of following the court’s precedents on citizenship in the territories, the ruling in Balzac v. Puerto Rico allowed the U.S. to continuing governing U.S. citizens in Puerto Rico outside the Constitution in the same manner as non-citizens had been governed in the Philippines under a policy leading to independence.

It was the Balzac case that perpetuated the “unincorporated” territory status doctrine of the Insular Cases, preventing direct application of the Constitution for the last remaining U.S. territories. If any earlier cases are to be overturned, it is the Balzac court’s deviation from the precedents of the court in the 32 so-called “incorporated” territories, including Alaska and Hawaii at the time Balzac was decided.

So, what then do we really mean when we refer to the “Insular Cases” as applicable to U.S. territories in 2019? The answer is clear.

As to Puerto Rico, Northern Mariana Islands, Guam and U.S. Virgin Islands we are referring to court rulings embraced by Congress going on 120 years. Those rulings denied application of the Constitution directly by itself own force to territories populated by non-citizens. Instead the Congress and the courts decide if and how fundamental rights apply in the territories.

Then in 1922 the court extended the Insular Cases to territories in which birthright U.S. citizenship was conferred by statute, rather than the Constitution as applicable in the states. American Samoa is the only territory organized with local government under federal territorial law, where the local population acquires U.S. nationality based on birth in the territory, but not U.S. citizenship.

When residing in any U.S. territory, U.S. nationals and citizens have the same less than equal legal and political rights compared to citizens of the states. Only when relocating residence to a state do U.S. citizens from territories acquire equal citizenship rights. That happens automatically for U.S. citizens relocating from a territory, but U.S. nationals from American Samoa must apply for citizenship in a state to acquire equal rights in a state.

Equal representation in Congress or the Electoral College is limited by Article I and Article II of the Constitution to citizens who reside in a state of the union.

By playing the race card the ACLU overplayed its hand

It would be a breakdown of separation in powers between co-equal branches of the federal government if once again the federal courts try to resolve political questions and declare national policy on the status and governance of Puerto Rico. It is long since time for Congress to exercise its power and do its duty under Art. IV, Sec. 3, Cl. 2 of the Constitution to declare the status choice for each territory. That will enable the people in the last five territories to exercise informed self-dermination on terms prescribed by Congress.

Some of the Puerto Rico law professors who submitted briefs supporting the ACLU in declaring the Insular Cases to be an active form of racism in the modern era have paradoxical perspectives. For example, one such professor also argued in the past that the Insular Cases are “good law” that allows the U.S. to “de-annex” any of the remaining territories according to Washington’s determination of the national interest.

After conferring U.S. citizenship for 100 years, it is hard to imagine justification for de-annexation leading to nationhood if not approved by the American citizens of Puerto Rico. Especially since it presumptively would mean loss of citizenship to those who become citizens of a new nation of Puerto Rico. Ending U.S. citizenship in Puerto Rico unilaterally without self-determination is perhaps the scenario that is the closest one can come to reviving the imperialist and even racist legal predicates of the original Insular Cases.

Unless we want to argue the ACLU and the affiliated law professors are racist, along with the members of the U.S. Supreme Court all of whom have voted to uphold the Insular Cases, it is time to stop playing the race card as part of the current self-determination and status policy narrative. If we argue that racism in the original Insular Cases remains an active factor in modern SCOTUS rulings upholding the Insular Cases, we all become witches in a witch hunt.

As noted, Justice Kennedy referred in Boumediene v. Bush to the Insular Cases doctrine of incorporation as imperfect but “pragmatic,” because a better alternative definition of territorial status eludes us. At least until a new status is attained based on self determination.

The ACLU and Puerto Rico law professors, along with revenue driven special interest lobbying/litigation projects like “Equally American,” are exploiting vestigial racism more than a century ago to seek judicially imposed termination of status quo without self determination. I suppose one could argue that would force the issue in Congress.

But when citizenship is at risk and the U.S. can act unilaterally without representation of the U.S. citizens involved, that is a form of judicial imperialism not unlike that exerted by Ivy League academics in support of the Insular Cases in 1901. Both Harvard and Yale law professors at the dawn of the last century unapologetically joined and espoused the ideology of the robust “Imperialist Caucus” in the U.S. Congress, favoring U.S. imperial rule over the territories just annexed from Spain.

When the Congress balked by not addressing citizenship and status in the 1900 Puerto Rico territorial organic act, starting in 1901 the Supreme Court stepped in to fill the void with the Insular Cases. The Insular Cases did more than deciding what civil rights and political status the non-citizens of the new territories had.

ACLU assumes a U.S. Supreme Court ruling the reverses the Insular Cases as racist will mean a happy ending to the story of Puerto Rico and the three other territories with “Balzac citizenship” (Guam, Northern Marianas and U.S. Virgin Islands). A more predictable path to a happy ending would be informed self-determination in Puerto Rico in a referendum under U.S. Public Law 113-76, certified by the Department of Justice, and an enabling/admission act that leaves Congress in control of terms and timing of status change.

In the meantime, the risk is that the courts will tamper and tinker with the Insular Cases but not decide on application the U.S Constitution, incorporation or define status options. The potential for yet more judicial engineering of status to go awry is underscored by Kagan’s referral in Sanche Valle to a wide range of status possibilities created by the “commonwealth” model of territorial government. In celebrating Sanchez Valle for good reason because it debunked “commonwealth” and “autonomy,” we may assume too much if we think Breyer, Kagan, RBG, Sotomayor and Roberts are not capable of creating new ambiguities.

As a Navy JAG lawyer and treaty negotiator in the U.S. State Department, I was invited with a few other federal lawyers to have dinner with Justice Kennedy in the Secretary’s dining room. Because he was dealing with territorial issues as a Judge on the Ninth Circuit, we talked in depth about the Insular Cases. When I advocated clarification of ambiguities in territorial law, he suggested “ambiguity is good when it comes to territories.” I asked how ambiguity could be reconciled with informed self-determination, and and if having courts decide the political issue of status isn’t what created the ambiguity facing the territories and Congress today.

Indeed, a judicially imposed happy ending would be convenient for all concerned, except those who oppose both statehood and nationhood. But the last time the courts decided to define political status policy based on ambiguity what we got was the Insular Cases.

The reality is the ACLU and friends are hijacking the issue of Insular Cases racism to change the discussion from self determination on status to judicial determination of status. They may even believe that a judicial intervention at this stage is needed to fill the vacuum left by endless Congressional abdication of duty to determine political status. The ironic legacy of the Insular Cases doctrine is that Congress has shirked its duty to address status because the courts ruled the Constitution does not apply of its own force.

But that rationale was only credible before a majority voted for a non territorial status. Now we don’t need the courts to intervene and declare the Insular Cases wrong, or even declare Balzac wrong. We might like it, but so what?

However, arguably we should simply chose to move beyond the Insular Cases and not even be using the term incorporated or unincorporated. The real historical task at hand is to address the status of a U.S. citizen populated territory, and determine majority rule on status as the basis for ending the legacy of the Insular Cases based on self-determination.

The ACLU and its cohort of law professors may see litigation and judicial intervention as the best way to delay or derail seif-determination increasingly in support of statehood. In that context, playing the race card keeps the territories enslaved to the racist legacy of the Insular Cases.

Howard Hills was lead counsel on territorial status policy in the Executive Office of the President and National Security Council responsible for negotiations, Congressional ratification, judicial review and U.N. Security Council proceedings related to U.S. free association treaties with the Federated States of Micronesia, Republic of Palau and Republic of the Marshall Islands. He is also author of the book Citizens Without A State, with foreword by former U.S. Attorney General Richard Thornburgh.



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