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OPINION: Time for Congress to reassess the Insular Cases Doctrine

DOWNES vs. Bidwell and several related cases were decided by the U.S. Supreme Court in 1901 and the years following.

These cases and their progeny established the basic case law governing the relationship between the United States proper (i.e. the States of the Union) and the “insular” territories acquired three years earlier. These territories — Puerto Rico, Guam and the Philippines — were acquired by conquest from Spain at the end of the Spanish-American war in 1898.

The Insular Cases addressed the seminal question regarding the political and constitutional status of the insular territories vis a vis the United States proper.  At the time of its acquisition from Spain, the population of the Philippine Islands (situated half-way around the world) was already in the millions. Puerto Rico, somewhat smaller, also had a fairly large number of inhabitants. In this series of cases the Supreme Court was confronted with the novel but quite perplexing question: Whether “the [native] inhabitants” of these insular territories have the same constitutional rights as those persons residing within the States of the Union.

The Supreme Court had to initially decide the threshold question of whether the insular (i.e. offshore) territories, upon their acquisition in 1898, became “a part of the United States” for purposes of the U.S. Constitution. Or were these offshore territories simply “properties” owned by the United States in the Caribbean and the Pacific and subject to the plenary power and control of Congress?

Until the Insular Cases came along, as far as I am aware, this issue — whether the territories are or are not a part of the United States —never really arose. It did not arise, for example, when the Northwest Territory was acquired. It also did not arise with the acquisition of the “onshore territories” in the West and Southwest United States. At the time, it was simply assumed that, under the Territorial Clause of the U.S. Constitution, Congress had full, plenary powers over all the territories owned by the United States. Except for the various Indian tribes and the Indian Nations which were neither States nor territories, all territorial acquisitions by the United States were under the plenary control of Congress, pursuant to the Territorial Clause.

After setting forth a fairly extensive analysis (historical and constitutional) of the issues presented, the Supreme Court ultimately decided that Puerto Rico was not a part of the United States for purposes of the customs laws of the United States. Therefore, goods imported from Puerto Rico into New York were subject to tariff under U.S. customs laws, unless Congress decides otherwise.

The Supreme Court simply concluded that Puerto Rico, Guam and the Philippines were “unincorporated” territories, because they were “not destined for statehood.” How it reached this conclusion was somewhat mystifying. It appears that the justices viewed the inhabitants of these island territories as primitive and uncivilized, and they apparently would never become a state. It noted that the island inhabitants have a primitive culture, different values and strange customs quite different from those of the United States. Because of those differences, it decided that certain provisions of the Constitution (including certain fundamental provisions thereof) were not applicable to Puerto Rico and the other insular territories.

Congress soon enacted the Foraker Act establishing a civil, government for the territory of Puerto Rico, but as an unincorporated territory still. In contrast, the island of Guam was placed under the complete control of the U.S. Navy. The people of Guam became “subjects” of the United States for over fifty years, without any civil government being established for that island. Since they were not a part of the United States and they were not destined for statehood, Guam, Puerto Rico and the Philippines in effect became colonies of the United States, just as the Northern Marianas had been a colony of Spain, before being sold to Germany.

It was not until half-a-century later — in 1950 — that the U.S. Congress enacted the Organic Act of Guam, which established, for the first time, a semblance of civil government for the territory of Guam and conferred United States citizenship on the inhabitants of Guam. Under the Organic Act, Guam became an organized territory of the United States for the first time, but remained an unincorporated territory, subject to the plenary powers of Congress. And because Guam was still treated by Congress “as a territory not destined for statehood,” not all of the provisions of the U.S. Constitution apply to Guam.

So for over 100 years now, the people of the insular territories have lived under the umbrella of the Insular Cases and the plenary powers of Congress over the territories. Certain of the fundamental provisions of the U.S. Constitution still, to this very day, do not apply to the four millions U.S. citizens residing in Puerto Rico and the other U.S. territories.   The insular territories (as opposed to the fifty States) have now increased to include the CNMI, the Virgin Islands and American Samoa. 

But depending on who you ask, the Insular Cases doctrine is either good or bad for the people of the insular territories. For example, it is because of the Insular Cases doctrine that the CNMI’s restrictive land alienation law was allowed to stand, to the great dismay of those CNMI residents who are not of NMI descent. The Insular Cases doctrine also found it permissible for the territorial legislature to decide when a defendant is entitled to a trial by jury. Finally, under the Insular Cases ruling, the “one-person, one-vote” rule required for both houses of a state legislature does not apply to the CNMI Senate. The underlying basis for these exceptions rested on the Court’s reasoning that the insular territories are not destined for statehood and, therefore, not all of the provisions of the Constitution apply ex proprio vigore (i.e. “of their own force”).

Those who are against the Insular Cases doctrine say that the territorial inhabitants are treated as second-class U.S. citizens; that the doctrine is a vestige of, if not a perpetuation of, colonialism. Although they are U.S. citizens, territorial inhabitants cannot vote for the President of the United States. U.S. citizens in the territories are also not officially represented in the U.S. Congress, be it the House of Representatives or the U.S. Senate. What Congress allowed the territories to have is a “non-voting delegate to Congress” who we sometimes refer to politely as “Congressman/woman.”  But as we are all too painfully aware, in any government (but especially so with our National Government), it is political power that carries the day and which makes all the difference.

Sadly (indeed embarrassingly), in the very birthplace of democracy (where equal protection of the laws, due process and human rights are synonymous with the highest ideals of America) millions of U.S. citizens in Puerto Rico and the other U.S. territories still cannot vote for the U.S. President. To this day, they do not have any real voting representation in Congress. The roughly four million U.S. citizens in Puerto Rico have only one single delegate to Congress, while some of the smallest States (with less than a million residents) have at least two, three, or even four members in the U.S. House of Representatives, plus two Senators. This unfairness in representation continues because Congress, for over a hundred years now, has not undertaken any meaningful and constructive action to improve the political status of the four million U.S. citizens living in Puerto Rico and the other territories.

To the extent that it has plenary authority over the territories, Congress has a fundamental obligation to look into, examine thoroughly and undertake all necessary action that will once and for all remove the vestiges of colonialism in America, as evident in its treatment of the territories over the past century. Every citizen under the U.S. flag should be treated equally, in accordance with the principles of democracy upon which the United States was founded.

It is not only timely and appropriate, but mandatory, for Congress to immediately commission a review of the Insular Cases doctrine; and introduce a proposed constitutional amendment that will provide a constitutional remedy recognizing the right of every U.S. citizens (including those in the territories) to be treated fairly and equally. The days when the doctrine of “separate but equal” was the law has long been declared unconstitutional. It is long overdue for Congress to turn its attention to the Insular Cases Doctrine and propose a constitutional amendment to correct the unfairness in its treatment of territorial citizens, as well as provide territorial citizens with the right to vote in national elections.

The Congress should no longer permit the continuation and perpetuation of modern day colonialism in America. Congress might wish to start off by enacting federal legislation that declares that Puerto Rico and the other U.S. territories are now incorporated territories immediately. At the same time, Congress should establish a Congressional commission with respect to the U.S. territories. Such commission should undertake a comprehensive review regarding the present political and constitutional anomalies being practiced under the doctrine of “unincorporation,” a term coined by the Supreme Court in 1901 in lieu of “colonialism,” which in turn is the term used for empire-building by Western powers for several hundred years before World War II.

The author is the CNMI’s first chief justice.