The Insular Cases and the Unincorporated Territories

HR 279 is a bill intending to overturn the Insular Cases. The bill’s goal is “Acknowledging that the United States Supreme Court’s decisions in the Insular Cases and the ‘territorial incorporation doctrine’ are contrary to the text and history of the United States Constitution, rest on racial views and stereotypes from the era of Plessy v. Ferguson that have long been rejected, are contrary to our Nation’s most basic constitutional and democratic principles, and should be rejected as having no place in United States constitutional law.”

But the evidence of Dr. Peter S. Watson  shows that the central issue is not really the offensive language in the Supreme Court decisions, but Congress’s failure to resolve the political status of the remaining U.S. territories.

The Insular Cases

The Insular Cases are a set of Supreme Court decisions made regarding Puerto Rico and the Philippines in the 20th century. As Dr. Watson points out, there is no official list of the Insular Cases, and experts don’t agree on all the cases that should be included. This would be a serious obstacle to overturning all the Insular Cases as a block.

The idea of overturning the Insular Cases because they are racist has some issues, too. Certainly, the decisions on these cases include racist language. At the time they were written, racist language was common. Downes vs. Bidwell includes this sentence: “If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible.”

This kind of language would not be acceptable today. In fact, many Supreme Court decisions at that time included racist language, describing specific groups of people, for example, as “savages” or “uncivilized.”

In the case of Balzac v. Puerto Rico in 1922, Chief Justice Taft took the bull by the horns, saying, as Watson points out, that “the ruling did not discriminate based on race because it applied to all Americans in the territories of any race, and instead discriminated based on ‘location.’ ”

Watson further points out that HR 279 treats all the territories as though they were a homogenous group. In fact, census data shows that most of the residents of Puerto Rico identify as white, while those of American Samoa and Guam more frequently identify as Pacific Islanders. This doesn’t make the language of the Insular Cases decisions less offensive, but it does suggest that the issue is more complicated.

What happens if the Insular Cases are overturned?

Some of the witnesses in the hearing on HR 279 connected  the act with self-determination for the territories. Others specifically made the point that there is no connection between the two.

The doctrine of unincorporated territories created a new category of possession for the United States. Until the creation of the unincorporated territory, possessions of the United States were assumed to be on their way to statehood. Downes vs. Bidwell listed speculations about how it could be a problem to incorporate all the new possessions of the United States into the Union. What if the United States captured a territory in a war? Would the hostile people who had been captured automatically become citizens of the United States?

At the same time, the decision on the case worried that Congress could treat the people of a new territory badly if they weren’t protected by the Constitution. The idea of an unincorporated territory allowed the Congress to figure out whether to give a territory independence — as they did for the Philippines — or statehood. Meanwhile, the people’s “fundamental rights” would be protected without applying the Constitution completely to the territory.

The Supreme Court probably didn’t foresee that Congress would wait around for decades before settling on a political status for the insular (island) territories. But overthrowing the Insular Cases would also remove the requirement to respect the fundamental rights of the people of the territories.

It would not change the status of the territories automatically or make the U.S. nationals of American Samoa become citizens. However, it could make the ancestral land ownership rules of American Samoa illegal, since they treat different groups of people unequally under the law.

Overturning the Insular Cases would not allow Puerto Ricans to vote in presidential elections or provide senators, either. As Jenniffer Gonzalez-Colon said in the hearing, Gonzalez-Colon went on to say, “It is not the Insular Cases that deny the residents of the territories voting representation; Articles I and II of the Constitution do. It is not the Insular Cases that have denied equality in Federal programs; it has been Congress who has done that.”

Congress must resolve the status question

Congress makes all the rules for territories, and Congress admits states. The courts can’t take over those duties or fix the problems caused by unincorporated territory status.

“The irony of the post-WWII era is that regimes of home rule Congress established in the territories were so successful the elected leaders thriving in the territorial government unexpectedly seemed to become reluctant about transition to full equality of citizenship at the national level,” Watson wrote. “Instead, for several decades experiments in ‘autonomy’ in local affairs as a substitute for equality delayed self-determination on non-territorial status options.  In the end, what has become clear is that for U.S. citizens in each territory not ‘incorporated’ into the union the more autonomy for the territory the less equality is justified, and the more equality the less autonomy is justified. ”

There is a statehood bill in Congress right now. Congress needs to act on it. Please contact your legislators and let them know that this matters to you.

One Comment

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The incorporation doctrine is a constitutional doctrine through which the Bill of Rights of the USA Constitution are made applicable to the States through the due process clause of the 14th amendment. Incorporation applies substantially and procedurally.

The insular cases Constitutional paradox is complex. Ultimately, there is NO scenario as a USA State that functions completely independent from the USA Constitution. Hence, FIRST step towards Achieving Puerto Rico Statehood is incorporating the territory to the union.

Maintaining the unincorporated territorial status is simply preserving the ELA of PR as is, with it’s territorial inequality. It is also exposing it’s residents to continuous local administrative dysfunction without having the full resources to defend themselves at a federal level.

Until PR is fully incorporated as a State, it will continue to be “handle” by The US Congress with unconstructive ambiguity and inequality. Puerto Rico deserves better!

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