Insular Cases and the Supreme Court

Date: 1901–1904

Issue: Territories and new states

Significance: The Supreme Court, in its decisions on various islands seized during the Spanish American War, determined the applicability of the Constitution and the Bill of Rights to overseas territories.

The fourteen cases regarded as the Insular Cases arose out of the seizure of various island territories in the 1898 Spanish-American War. Partisan political issues played a role in that the Democratic presidential candidate opposed the taking of these territories, and the Republicans defended their acquisition by the administration of Republican president William McKinley. McKinley’s decisive victory in the 1900 presidential campaign seemed to indicate broad support for the acquisition of these islands, and many believe it influenced the court’s willingness to accommodate the administration with favorable rulings.

In addition to partisanship, differing legal and historical concepts influenced the court’s decisions. Historically, new territories eventually became states; however, many Americans believed that the newly acquired islands were inhabited by people of other races who would never make suitable US citizens. Also, deep in the background was the issue of the proper relationship of the Bill of Rights to states as well as territories under the initial incorporation theory of the Fourteenth Amendment as set out in Chicago, Burlington, and Quincy Railroad Co. v. Chicago (1897) and Chicago, Milwaukee, and St. Paul Railway Co. v. Minnesota (1890).

The Supreme Court first disposed of the question of whether the United States could acquire territory by affirming the practice had a long history in De Lima v. Bidwell (1901). The court sidestepped certain other questions, such as taxing imports, by holding that congressional enactments on imports from foreign countries did not apply because the territories in question were no longer foreign nations. However, the question of taxes on exports to Puerto Rico was more complex. Normally, exports cannot be taxed, but as long as the military occupied the islands, a tax on exports was allowed under the federal government’s war powers. Once military occupation ended, the normal constitutional provisions would come into play. Either the islands were foreign and no export tax could be levied, or they were domestic and the duties would have to be “uniform within the United States” as required by Article I, section 8, of the US Constitution. Justice Henry B. Brown, writing in Downes v. Bidwell (1901), attempted to resolve this by reasoning that Puerto Rico was not “foreign” but also not a part of the “United States,” a term he said applied only to existing states. Justice Edward D. White, concurring with three other judges, found this view too narrow and held that the Constitution applied to a territory only after Congress had incorporated it.

Despite its ambiguity, Justice White’s formulation gradually became the accepted view. The island cases as a whole represent a confused and, at times, incoherent statement. The court was trying to give the federal government broad power over foreign affairs, but this had domestic consequences, some of which continued to occupy the court throughout the twentieth century and into the twenty-first. While congressional legislation granted the residents of the unincorporated US territories of Guam, the Virgin Islands, and Puerto Rico as well as the commonwealth of the Northern Mariana Islands birthright US citizenship during the twentieth and early twenty-first centuries, by the early 2020s the residents of the unincorporated territory of American Samoa, ceded to the United States in the early 1900s, still did not have birthright citizenship. The year 2022 saw the Supreme Court decline to consider a case for the second time in which people born in American Samoa argued that they should constitutionally have birthright citizenship. Contending that they were harmfully treated as if they were second class, unable to hold public office or even vote, three plaintiffs residing in the United States but born in American Samoa had brought their case for birthright citizenship and overturning of the Insular Cases to the Supreme Court following a federal appeals court decision against them that had cited the Insular Cases. While the American Samoan government was wary of American Samoans having birthright citizenship, Justice Neil Gorsuch had previously expressed his belief that, because they were based on racist ideology rather than the Constitution, the court should reconsider the Insular Cases. However, in 2022, it was announced that the court would not be taking up the case.

Bibliography

De Vogue, Ariane. "Supreme Court Declines to Take Up Effort to Secure Birthright Citizenship for American Samoans." CNN, 17 Oct. 2022, www.cnn.com/2022/10/17/politics/american-samoans-birthright-case-supreme-court/index.html. Accessed 20 Dec. 2022.

Kerr, James E. The Insular Cases: The Role of the Judiciary in American Expansionism. Kennikat Press, 1982.

LaFeber, Walter. The New Empire: An Interpretation of American Expansion, 1860-1898. 35th anniversary ed. Cornell UP, 1998.

Manta, Irina, and Cassandra Burke Robertson. "Constitutional Citizenship in the US Territories." Lawfare, 27 July 2022, www.lawfareblog.com/constitutional-citizenship-us-territories. Accessed 20 Dec. 2022.

Quinn, Melissa. "Supreme Court Turns Away Case Involving Birthright Citizenship for American Samoans." CBS News, 17 Oct. 2022, www.cbsnews.com/news/supreme-court-birthright-citizenship-american-samoa-insular-cases/. Accessed 20 Dec. 2022.