House Chairman Calls for Rejection of Insular Cases

House Resolution 279 asks Congress to repudiate the Insular Cases, a series of Supreme Court decisions which are still used in legal decisions affecting U.S. territories like Puerto Rico.

The resolution, introduced in Congress last spring, would acknowledge “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.”

The Insular Cases

While there is no complete agreement on which cases should be included in the list of Insular Cases, all the possible cases have to do with the island (thus, insular, meaning “about islands”) territories which the United States acquired after the Spanish American War.

The Resolution points out that “the judgment of the Court in Downes v. Bidwell (182 U.S. 244 (1901)), the most prominent of the Insular Cases, was delivered by Justice Henry Billings Brown, the author of Plessy v. Ferguson’s doctrine of ‘separate but equal’, who wrote that America’s newly acquired overseas territories were ‘inhabited by alien races, differing from us in religion, customs, … and modes of thought’, making it impossible to govern ‘according to Anglo-Saxon principles.'”

It further highlights the writing of Justice Edward White, who in a separate 3-Justice plurality “developed the territorial incorporation doctrine in Downes, expressed concerns over the ‘evils’ of admitting ‘millions of inhabitants’ of ‘unknown islands, peopled with an uncivilized race’, who he believed would be ‘absolutely unfit’ for citizenship.”

The insular cases themselves dealt with a variety of legal questions, and the Resolution points out that these cases have been criticized and questioned by scholars and lawmakers over the years. “Whereas the territorial incorporation doctrine established by the Insular Cases is still used to perpetuate the second-class treatment of Americans living in the territories, from the denial of citizenship, to the denial of voting rights, to the denial of equality in Federal benefits programs,” the Resolution concludes, “and Whereas the time has come to expressly reject the Insular Cases as both contrary to the Constitution’s text and history and as incompatible with our Nation’s core values: Now, therefore, be it Resolved, That the House of Representatives

• •  recognizes that America’s constitutional and democratic principles apply throughout the United States, including both States and territories;
  •  acknowledges that the Insular Cases are contrary to the text and history of the Constitution;
  • acknowledges that the Insular Cases are relics of the racial views of an earlier era that have no place in our Nation today; and
  • rejects the Insular Cases and their application to all present and future cases and controversies involving the application of the Constitution in United States territories.”

Natural Resources Committee Hearing

H. Res. 279 was introduced by Raul Grijalva (D-AZ), who is the Chair of the House Natural Resources Committee.  Chairman Grijalva held a hearing on the resolution in May of 2021.

At the hearing, Rep. Gregorio Kilili Camacho Sablan of the Northern Mariana Islands said, “[T]he theory that some territories are ‘incorporated’ into the United States and, therefore, the Constitution applies there in full, while other territories are ‘unincorporated,’ without the full protection of the Constitution, was invented by the Supreme Court.” He called for an overturning of the Insular Cases, with an awareness of the possible consequences for the various territories.

Rep Jenniffer Gonzalez-Colon (R-PR) spoke in favor of the Resolution, saying that the Insular Cases implied “that there is nothing wrong when a democracy such as the United States engages in the business of governing other subjects that have not participated in their democratic election process; that the people are not created equal, some races being superior to others; and that it is the burden of the superior people, the white man’s burden, to bring up others in their image, except to the extent that the nation which possesses them shall in due time determine. These decisions were odious, reflecting cultural and racial biases that are now rightfully rejected by most Americans.”

Rep. Stacey Plaskett (D-VI), Dr. Daniel Immerwahr, Tina Muna Barnes of the Guam Legislature, Niel Weare of Equally American, and others made much the same points, discussing the essentially racist nature of the decisions in question, and their consequences for the territories in modern times.

However, this was not a unanimous voice. Lieutenant Governor Ale from American Samoa described the measure as a well-intentioned “blunt instrument” which would hamper Samoa’s ability to preserve its cultural traditions. “We are not citizens,” he said, “and we would like the decision on whether we become citizens to be decided not by a court but by the people of American Samoa and its elected leaders.”

Professor Rose Cuison-Villazor brought up similar concerns with the Northern Mariana Islands in mind. Both these territories, and to a lesser extent Guam as well, want to be able to limit land ownership by people whose ancestors did not come from their territories. Under the U.S. Constitution, this would be illegal. If the U.S. Constitution is interpreted to apply equally to all territories as it applies to all States, the traditional customs of these three territories would be threatened.

While this was not the intention of the Insular Cases, it would be an unintended consequence of the overturning of the Cases.

Download the H Res 279 hearing transcript.

Statements

Written statements were also submitted. Dr. William Cleary wrote, “Instead of legal and historical revisionism, the reality is that the flawed and imperfect Insular Cases should be relied upon unless and until superseded in an orderly manner by a better status doctrine based on self-determination, not a repeat of judicial activism that began with the Insular Cases after Congress abdicated its role defining territorial status in 1900.”

Dr. Cleary went on to say that the Insular Cases do not prevent Congress from incorporating the territories, from providing equitable treatment under federal law, or from admitting them as States. The Resolution would not change the inequitable decisions made by Congress since the Insular Cases were decided.

An article by Dr. Peter S. Watson claimed that “Asking judges to decide status threatens self-determination.” Specifically, the article says that “sooner or later Congress must provide a mechanism under federal law for each of the five current less than fully self-governing territories to exercise self-determination. That means to consent to either remain a territory without equality that comes only with statehood or seek equality under a non-territorial status recognized under the U.S. Constitution.”

Watson points out that H Res 279 asks Congress to treat the five inhabited U.S. territories identically. This would remove their ability to choose their own political status, Watson suggests.

Self-determination

Puerto Rico voted in 2012, 2017, and 2020 to become a State. The remaining territories have not yet made official requests for any change in political status.

Cosponsors

Cosponsors of the House Resolution include:

• Rep. Plaskett, Stacey (D-VI)
• Rep. Sablan, Gregorio (D-MP)
• Rep. San Nicolas, Michael (D-GU)
• Rep. Gonzalez-Colon, Jenniffer (R-PR)
• Rep. Velazquez, Nydia (D-NY
• Rep. Garcia, Jesus G. “Chuy” (D-IL)
• Rep. Torres, Ritchie (D-NY)
• Rep. Norton, Eleanor Holmes (D-DC)
• Rep. Huffman, Jared (D-CA)
• Rep. Tlaib, Rashida (D-MN)
• Rep. Napolitano, Grace (D-CA)
• Rep. Soto, Darren (D-FL)
• Rep. Gallego, Ruben (D-AZ)
• Rep. Cohen, Steve (D-TN)
• Rep. Blumenauer, Earl (D-OR)