Should the U.S. acknowledge its racist past that is on display in the Insular Cases? A bill introduced by the current Congress asks the nation to do just this.
The Insular Cases are a series of Supreme Court cases decided in the early 1990’s. HR 279, a bill introduced in the spring of 2021, calls on Congress to acknowledge the racist underpinnings of these decisions, which have never been overturned and remain the law today. The bill summary states:
H.Res.279 – Acknowledging that the United States Supreme Court’s decisions in the Insular 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 bill asks that the Insular Cases be rejected, with four specific demands:
- That Congress recognizes that America’s constitutional and democratic principles apply throughout the United States, including both States and territories;
- That Congress acknowledges that the Insular Cases are contrary to the text and history of the Constitution;
- That Congress acknowledges that the Insular Cases are relics of the racial views of an earlier era that have no place in our Nation today
- That Congress 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.
What are the Insular Cases?
“Insular” means “pertaining to islands,” and refers specifically in this context to the island territories of the United States, including Puerto Rico.
The first three Insular cases, DeLima v. Bidwell, Dooley v. United States, and Downes v. Bidwell, were argued together in 1901. Scholars are not in complete agreement on the list of Insular Cases, but they usually are understood to include cases decided through 1922, including Balzac v. Porto Rico. Six of the cases apply specifically to Puerto Rico.
The Insular Cases introduced the idea of unincorporated territories and determined that the U.S. Constitution does not apply equally to territories and to states. These decisions have continued to affect Puerto Rico and the other territories.
Are the Insular Cases racist?
The strongest evidence that the Insular Cases are racist may be in the use of language in the decisions.
The decision in Downes v. Bidwell specified that the insular territories were inhabited by “alien races.”
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, and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action.
We are therefore of opinion that the Island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution; that the Foraker Act is constitutional, so far as it imposes duties upon imports from such island, and that the plaintiff cannot recover back the duties exacted in this case.
In this decision, a great deal of the argument focused on the difference between a state and a territory.
“In short, the Constitution deals with states, their people, and their representatives,” Justice Henry Billings Brown wrote. “The researches of counsel have collated a large number of other instances in which Congress has in its enactments recognized the fact that provisions intended for the states did not embrace the territories, unless specially mentioned. These are found in the laws prohibiting the slave trade with ‘the United States or territories thereof.’”
“The decisions of this Court upon this subject have not been altogether harmonious,” Justice Brown admitted. “Some of them are based upon the theory that the Constitution does not apply to the territories without legislation. Other cases, arising from territories where such legislation has been had, contain language which would justify the inference that such legislation was unnecessary, and that the Constitution took effect immediately upon the cession of the territory to the United States.”
The idea of a population quite different from that found in the incorporated territories or states comes up more than once. Justice Brown asks whether there would not be danger in “the immediate bestowal of citizenship on those absolutely unfit to receive it?” and goes on, “Would not the war, even if waged successfully, be fraught with danger if the effect of occupation was to necessarily incorporate an alien and hostile people into the United States?”
DeLima v. Bidwell, decided in 1901, discusses the problem of “savage tribes”:
Whatever might be the interests, temporary or permanent, whatever might be the condition or fitness of the ceded territory, the effect on it or on us, the territory would become a part of the United States with all that implies. It is only true to say that counsel shrink somewhat from the consequences of their contention, or, if “shrink” be too strong an expression, deny that it can be carried to the nationalization of uncivilized tribes. Whether that limitation can be logically justified we are not called upon to say. There may be no ready test of the civilized and uncivilized, between those who are capable of self-government and those who are not, available to the judiciary or which could be applied or enforced by the judiciary. Upon what degree of civilization could civil and political rights under the Constitution be awarded by courts? The question suggests the difficulties, and how essentially the whole matter is legislative, not judicial. Nor can those difficulties be put out of contemplation, under the assumption that the principles which we may declare will have no other consequence than to affect duties upon a cargo of sugar. We need not, however, dwell on this part of the discussion. From our construction of the powers of the government and of the treaty with Spain the danger of the nationalization of savage tribes cannot arise.
It is not possible, in the 21st century, to see the people of Puerto Rico described in these terms without recognizing a degree of racism which is not appropriate for modern Americans, even if the legal question of the difference between states and territories is not in and of itself an expression of racism.
Are states and territories equal?
HR 279 claims that “America’s constitutional and democratic principles apply throughout the United States, including both States and territories.” However, quite recent decisions by the Supreme Court as well as Congress make it clear that Puerto Rico does not have equal rights with states. SSI (Supplemental Security Income) is available to residents of state but not to residents of Puerto Rico. Families in Puerto Rico receive less nutritional support and capped, limited Medicaid funding.
In these and many more cases, the Supreme Court has affirmed that Congress is allowed, under the Territory Clause, to “make all needful rules” for its territories. there is no requirement that the rules be fair or equal to those of the states.
In fact, the Insular Cases stated that the U.S. Constitution does not apply fully to the territories. The 14th amendment does not apply. “In short, the Constitution deals with states, their people, and their representatives,”
HR 279 could therefore amount to a real change in outlook for Congress, at least in terms of the first of the four demands.
Recognition that the language used in the Insular Cases is offensive and outdated mayt be an uncontroversial place to launch a debate on the status of the U.S. territories.
The fourth demand, that, the Insular Cases no longer apply to any decisions going forward, might be the most difficult to implement of the four.
In the case of Fitisemanu vs. United States, American Samoa clearly stated that the territory does not want U.S. citizenship like that of Puerto Rico. Birthright citizenship would be a threat to traditional laws which would become unconstitutional if the U.S. Constitution were held to apply equally to American Samoa.
The Supreme Court declined to hear this case.
More recently, the Supreme Court refused to consider an appeal of a decision made by the PROMESA Fiscal Oversight and Management Board regarding teachers’ pensions in Puerto Rico. The Board argued that this case is not affected by the Insular Cases, and that the plaintiffs set it up as a test of those cases only in order to make it appear more important than it is.
While the Court appears reluctant to address the legacy of the Insular Cases, the ACLU and other groups have called on Congress to pass HR 279, repudiating the Insular Cases, before the end of the year.