Constitution Daily

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Constitution Check: Are the Insular Cases still binding, after a century?

June 17, 2016 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at recent cases involving Puerto Rico and American Samoa that tested the ability of Congress to decide which constitutional provisions or guarantees apply in the territories.

americansamoa535THE STATEMENTS AT ISSUE:

“The Insular Cases should be modified or overruled.  Those decisions rest in significant part on outdated, indefensible racial biases that have no place in this court’s constitutional jurisprudence today…The Constitution does not grant Congress the power to decide when and where the Constitution’s terms apply.  Insofar as the Insular Cases establish a contrary principle, they are incompatible with the Constitution and should be rejected.”

 – Excerpt from a legal filing in the Supreme Court in the case of Tuaua v. United States, seeking U.S. citizenship for those born in the South Pacific territory of American Samoa.  The Supreme Court refused on June 13 to hear that appeal; there were no recorded dissents.

“[The Samoans in this case] suggest that the Insular Cases ‘should be modified or overruled,’ but this court has reaffirmed their core principle, which is that the political branches determine whether newly acquired territory is incorporated into the United States.”

– Excerpt from a legal filing in the Supreme Court by the Justice Department, successfully persuading the Justices not to hear the Tuaua case.


Article IV of the Constitution was added by the Founders primarily to assure protection for the state governments in dealing with each other in the new constitutional order being created.  That same article also added an important grant of power to Congress in dealing with the lesser governmental entities that would come into being – the territory that the new government from time to time would acquire, by purchase or otherwise.  Congress was given authority “to make all needful rules and regulations respecting the territory or other property belonging to the United States.”

That legislative authority can be, and has been, given differing interpretations in the nation’s history since the founding.

One argument – more widespread in recent years – has been that Article IV did not give Congress the authority to decide which parts of the Constitution applied in those entities not having the rank of states, meaning primarily the offshore territories, or to the people who lived in those enclaves.  The Constitution, this argument goes, follows the flag.

A competing argument is that Article IV meant that it was up to Congress to decide which constitutional provisions or guarantees applied in the territories.   That was the argument that prevailed in the early 1900s, when the Supreme Court issued a series of decisions on constitutional issues surrounding the territories.  Collectively, those cases are known as the Insular Cases, and they reflected the Justices’ considerable doubt about the capability of native peoples for self-government.  The result was that only a few rights guaranteed by the Constitution would follow the flag to the territories, and the fate of the rest was up to Congress.

Despite the racial and imperial attitudes reflected in those decisions, the Supreme Court has never had occasion to thoroughly reexamine the premise of those cases – even in the modern era when human rights have become a more active issue in constitutional interpretation.

Part of modern civil rights advocacy has been to advance the constitutional protection for people in the territories.  And one aspiration of those advocates has been full citizenship as a constitutional birthright, and another has been full rights of self-determination for those who live in the territories.

Both of those aspirations, though, have run up against the continuing legacy of the Insular Cases and, therefore, will be likely to succeed only if the modern questioning of those precedents were to find sympathy in the Supreme Court.

In three recent developments, however, these aspirations have been set back by the Supreme Court.  These developments involved two entities that remain territories of the United States, and thus lack the stature and self-governing status of American states: Puerto Rico and American Samoa.

Self-determination for Puerto Rico lost ground when the Justices issued two rulings: one on the power of Puerto Rico to enforce its own criminal laws, the other on its power to decide how to would manage its local government agencies’ mounting debts.

In the criminal law decision, the court ruled that Puerto Rico did not have separate self-governing status sufficient to enforce its own criminal laws against individuals who have already been charged under federal law for the same crime.  In the debt case, the court ruled that Puerto Rico cannot enact its own internal law to work its way out of heavy public debt.  Puerto Rico, the court summed up, gets whatever power Congress is willing to give it, and not more.

“There is no getting away from the past,” the court remarked in its opinion in the criminal law case.  When one traces the authority of the island’s people to pass criminal laws “all the way back,” the court said, “we arrive at the doorstep of the U.S. Capitol – the commonwealth and the United States are not separate sovereigns.”

In reaching its result in that case and in making that summary statement, the court majority was relying on one of the decisions among those in the Insular Cases group: a 1907 decision, Grafton v. United States, limiting the criminal law powers of the Philippines when they were a U.S. territory.

The court did not rely upon the Insular Cases precedents in ruling in the Puerto Rican debt case, but the result was the same: the island’s power to pass debt-restructuring laws is clearly subordinate to Congress’s authority over bankruptcy law.  “Our constitutional structure does not permit this court to rewrite the statute that Congress has enacted….That statute precludes Puerto Rico from authorizing its municipalities to seek relief” in a way not authorized by federal bankruptcy law, the court said.

A more direct test of the continuing effect of the Insular Cases came in a case taken to the Justices by a group of individuals born in American Samoa, and seeking “birthright citizenship” under the Fourteenth Amendment.  Legal and political science professors had joined them in urging the court to overturn the Insular Cases as out of date, given modern human rights understandings.

Their claim had been rejected by a federal appeals court, relying upon the Insular Cases for the notion that the Constitution only applies selectively to the territories, and it is up to Congress to decide who among territory residents get citizenship.   And the Justice Department had also relied on those precedents in urging the court not to hear the citizenship claim.  Without offering any reason, the court turned down the Samoans.

Thus, without saying so explicitly, the court has given new life to the old precedents despite the severity of the modern criticism.

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