Document Type

Article

Publication Date

2022

Abstract

The Insular Cases have been enjoying an improbable — and unfortunate — renaissance. Decided at the height of what has been called the “imperialist” period in U.S. history, this series of Supreme Court decisions handed down in the early twentieth century infamously held that the former Spanish colonies annexed by the United States in 1898 — Puerto Rico, the Philippines, and Guam — “belong[ed] to, but [were] not a part of, the United States.” What exactly this meant has been the subject of considerable debate even as those decisions have received unanimous condemnation. According to the standard account, the Insular Cases held that the “entire” Constitution applies within the United States (defined as the states, the District of Columbia, and the so-called “incorporated” territories) while only its “fundamental” limitations apply in what came to be known as the “unincorporated” territories (today, Puerto Rico, Guam, the U.S. Virgin Islands, the Northern Mariana Islands, and American Samoa). Scholars unanimously agree that the Insular Cases gave the Court’s sanction to U.S. colonial rule over the unincorporated territories — and that the reason for it was racism. Yet courts and scholars have recently sought to hoist the Insular Cases on their own racist petard — by “repurposing” them to defuse constitutional objections to certain distinctive cultural practices in the unincorporated territories. Adopting the standard account of the Insular Cases, according to which they created a nearly extraconstitutional zone, proponents of repurposing argue that the relative freedom from constitutional constraints that government action enjoys in the unincorporated territories can and should be exploited now to vindicate their peoples’ right to cultural self-preservation. This Article disagrees. Although I share the view that the Constitution should not ride roughshod over the cultural practices of the people of the unincorporated territories, I do not agree that the Constitution necessarily must bend to any such practices it finds there or that the Insular Cases present a legitimate — let alone desirable — doctrinal vehicle for preserving such practices. Instead, constitutional doctrines available outside of the Insular Cases present the most promising — and the only legitimate — doctrinal means for making the constitutional case in favor of cultural accommodation. Against the repurposing project, I argue that the Insular Cases gave rise to nothing less than a crisis of political legitimacy in the unincorporated territories, and that no amount of repurposing, no matter how well-intentioned — or even successful — can change that fact. On the contrary: repurposing the Insular Cases will prolong the crisis. They should be overruled.

Disciplines

Constitutional Law | Fourteenth Amendment | Law

Download

Share

COinS