Insular Cases
Based on Wikipedia: Insular Cases
In 1901, the Supreme Court of the United States decided that the Constitution doesn't fully apply to everyone living under the American flag. More than a century later, that's still the law.
If you're a resident of Puerto Rico, Guam, American Samoa, the U.S. Virgin Islands, or the Northern Mariana Islands, you live in a legal gray zone. You're subject to American laws, you pay certain American taxes, and in most cases you hold American citizenship. But you don't have all the constitutional rights that someone in, say, Kansas enjoys. The reason traces back to a collection of Supreme Court decisions known as the Insular Cases—rulings that legal scholars today widely condemn as a constitutional justification for American colonialism.
The Spoils of War
To understand how the United States ended up with this peculiar legal framework, you have to go back to 1898 and the Spanish-American War. It was a short conflict—less than four months of actual fighting—but it fundamentally transformed America's relationship with the rest of the world.
When the Treaty of Paris was signed in December 1898, Spain ceded three major territories to the United States: the Philippines, Puerto Rico, and Guam. Cuba remained under American military control until 1902. Suddenly, the United States found itself governing millions of people across the Pacific and Caribbean who had never been American, never asked to be American, and in many cases actively resisted becoming American.
This created a problem that the Founding Fathers had never contemplated.
The Constitution was written for a nation that expanded by adding contiguous territory—the Louisiana Purchase, the Mexican Cession, the Oregon Territory. These lands were understood to be on a path toward statehood. The people living there would eventually become full American citizens with full American rights. But the new island territories were different. They were far away. Their populations spoke different languages, practiced different religions, and came from different cultural traditions.
American political leaders asked themselves a question that sounds jarring to modern ears: Did they really want to make these people Americans?
The Uncomfortable Question
The debate that followed was remarkably candid about race and empire. The United States had spent the previous century engaged in the violent dispossession of Native American peoples and had just concluded a brutal civil war fought in part over the enslavement of African Americans. The country was in the midst of the Jim Crow era, systematically stripping Black citizens of the rights they had gained during Reconstruction.
Against this backdrop, American leaders confronted the prospect of incorporating millions more non-white people into the body politic. The Philippines alone had a population of about seven million. Puerto Rico had roughly a million. The idea of eventual statehood for these territories—and the political power that would come with it—alarmed many in the American establishment.
At the same time, the United States wanted these territories. They offered strategic military positions, access to markets, and the prestige that came with being a global imperial power. The question became: Could America have its empire and eat it too? Could it control these territories without actually making their residents full Americans?
The Supreme Court said yes.
What the Court Decided
The Insular Cases were actually a series of cases, not a single decision. Legal scholars disagree about exactly which cases should be included under this umbrella—some count only the original six decisions from 1901, while others include cases decided as late as 1922. But the core principle emerged clearly from the 1901 decisions, particularly a case called Downes versus Bidwell.
The case itself was about tariffs. A man named Samuel Downes had imported oranges from Puerto Rico to New York and was charged customs duties as though the oranges were coming from a foreign country. He argued that Puerto Rico was now part of the United States, and under the Constitution's Uniformity Clause, Congress couldn't treat Puerto Rico differently from the states for tariff purposes.
The Supreme Court disagreed, but not in a straightforward way. The justices fractured badly, with no single opinion commanding a majority. Justice Henry Brown wrote the lead opinion, but his reasoning was supplemented by a concurrence from Justice Edward Douglass White that would prove more influential in the long run.
White introduced a distinction that would reshape American constitutional law: the difference between incorporated and unincorporated territories.
Incorporated Versus Unincorporated
The idea works like this. When the United States acquires new territory, Congress gets to decide whether that territory is "incorporated" into the United States or merely "appurtenant" to it. Incorporated territories are on the path to statehood. The Constitution applies there in full. Unincorporated territories are something else—possessions that belong to the United States but are not really part of it.
Justice White described unincorporated territories as "foreign in a domestic sense." It's a phrase that sounds almost like a riddle, but it captured something real about what the Court was doing. These territories would be governed by American power but not protected by American rights.
In incorporated territories, residents could expect all the protections of the Constitution. In unincorporated territories, only "fundamental" rights would apply—and Congress would have broad discretion to determine what counted as fundamental.
The distinction had no basis in the constitutional text. The Constitution doesn't mention incorporated or unincorporated territories. It doesn't contemplate permanent colonial possessions. But the Court created this framework anyway, drawing on a combination of practical concerns, racial anxieties, and imperial ambition.
The Racist Heart of the Doctrine
Reading the Insular Cases today is uncomfortable. The justices made no effort to hide the racial reasoning behind their conclusions.
Justice Brown's opinion in Downes versus Bidwell worried openly about territories "inhabited by alien races" where "the administration of government and justice according to Anglo-Saxon principles may for a time be impossible." Another case, DeLima versus Bidwell, referred to "savage tribes." The clear implication was that the people of these territories were not ready for—perhaps not capable of—self-governance under American constitutional principles.
This wasn't accidental language. It reflected the dominant thinking of the era. The late nineteenth and early twentieth centuries were the high-water mark of scientific racism in America, when theories about racial hierarchy were considered respectable scholarship. The Supreme Court was simply channeling these ideas into legal doctrine.
The District Court of the Virgin Islands has called out the cases' "racist doctrine" and the era's "intrinsically racist imperialism." Legal scholars have been even more pointed. As one analysis put it, the Insular Cases "authorized the colonial regime created by Congress, which allowed the United States to continue its administration—and exploitation—of the territories acquired from Spain."
What It Meant in Practice
The practical consequences of the Insular Cases became clear in subsequent decisions. In 1922, the Supreme Court decided Balzac versus Porto Rico (the island's name was spelled "Porto Rico" in American legal documents until 1932). Jesus Balzac was a newspaper editor who had been convicted of criminal libel without a jury trial. He argued that as an American citizen—Puerto Ricans had been granted statutory citizenship by the Jones Act of 1917—he was entitled to a trial by jury under the Sixth Amendment.
The Supreme Court disagreed. Writing for a unanimous Court, Chief Justice William Howard Taft—himself a former president and future administrator of the Philippines—held that the right to a jury trial was not a "fundamental" right that applied in unincorporated territories. Puerto Ricans might be American citizens, but they didn't have all the rights that came with citizenship on the mainland.
The logic was striking. Congress could grant citizenship by statute, but that citizenship was somehow lesser than the citizenship enjoyed by people born in the states. The Citizenship Clause of the Fourteenth Amendment—which says that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States"—didn't fully apply because, under the Insular Cases framework, the territories weren't really part of the United States.
The Political Divide
The Insular Cases were controversial from the moment they were decided. Almost all of them were decided by narrow five-to-four margins, reflecting deep divisions on the Court. One contemporary account described the Downes decision as emerging from "one of the most spirited discussions ever held within the sacred circle of the Supreme Court bench."
The political fault lines largely followed party affiliations, though not in the way modern readers might expect. Republicans generally supported the decisions because they validated the expansion of American power overseas. The Foraker Act of 1900, which established the governmental structure in Puerto Rico—including the power to impose tariffs that sparked the Insular Cases—was a Republican creation. The party of Lincoln had become the party of empire.
Democrats and anti-imperialists opposed the decisions, but often for complicated reasons. Some objected on principled constitutional grounds, arguing that the government was claiming powers the Constitution never granted. Others opposed expansion because they didn't want to incorporate non-white populations into the American body politic at all.
This was one of the peculiar features of the debate. Anti-expansionists included both people who believed deeply in constitutional principles and people who simply didn't want more non-white citizens. The former group argued that the Constitution should follow the flag—that wherever American sovereignty went, American rights should follow. The latter group preferred to avoid the question by not acquiring the territories in the first place.
The Legacy That Persists
Here's what makes the Insular Cases different from other shameful chapters in American legal history: They haven't been overturned. Brown versus Board of Education repudiated Plessy versus Ferguson's "separate but equal" doctrine. Obergefell versus Hodges overturned Bowers versus Hardwick on same-sex relationships. But the Insular Cases remain good law.
Today, about 3.5 million American citizens live in Puerto Rico. Another few hundred thousand live in Guam, the Virgin Islands, and the Northern Mariana Islands. American Samoa has about 55,000 residents who are American nationals—not even citizens, because that territory has never been incorporated and Congress has never extended birthright citizenship there.
These Americans cannot vote for president. They have no voting representation in Congress. They are subject to federal laws they have no meaningful voice in creating. And when they challenge aspects of this arrangement in court, judges still cite the Insular Cases as controlling precedent.
The doctrine has occasionally been modified at the margins. Courts have recognized that certain fundamental rights—freedom of speech, freedom of religion, due process—apply in the territories. But the basic framework remains intact. Congress retains broad power to treat the territories differently from the states, and residents of unincorporated territories still lack rights that mainland Americans take for granted.
Why Haven't They Been Overturned?
The persistence of the Insular Cases is something of a puzzle. The racial reasoning that animated them is universally condemned today. The idea that the Constitution can apply differently based on where you live seems to contradict basic principles of equal protection. Legal scholars across the political spectrum have called for the cases to be overturned.
Part of the answer is procedural. The Supreme Court only reviews cases that come before it, and the right case challenging the Insular Cases framework hasn't reached the Court—or hasn't prompted the Court to act. Justices have occasionally expressed skepticism about the doctrine in concurring or dissenting opinions, but no majority has been willing to overturn it outright.
Part of the answer is political. Overturning the Insular Cases would raise immediate questions about what happens next. If the Constitution applies fully in the territories, does that mean statehood? Independence? Some other arrangement? These are questions that Congress and the executive branch have preferred to avoid.
And part of the answer may be that the status quo, however unjust, benefits various interests. The territories receive some federal benefits while remaining exempt from certain federal requirements. Businesses operating in the territories sometimes benefit from the different legal framework. The complexity of unwinding more than a century of legal and political arrangements creates inertia.
A Constitution That Doesn't Follow the Flag
The Insular Cases established a principle that still governs American territorial policy: the Constitution doesn't automatically extend to all places under American sovereignty. Whether you enjoy the full protection of American constitutional rights depends not on your citizenship, but on where you happen to live—and whether Congress has seen fit to make your home an integral part of the nation.
This is an arrangement that would have shocked the Founders, who fought a revolution in part over the principle that people subject to a government's authority should have a voice in that government. It's an arrangement that contradicts the plain language of the Fourteenth Amendment. And it's an arrangement that rests on reasoning the Court's own later jurisprudence has thoroughly discredited.
Yet it endures. In 2025, the Insular Cases remain the governing framework for how the United States treats millions of its own people. The question of whether and when that will change remains open—a lingering reminder that constitutional law sometimes moves far more slowly than constitutional values.