THE INSULAR CASES

The liminal condition of present-day US territories and second-class status of territorial residents are direct products of the Supreme Court’s rulings in the Insular Cases. The Insular Cases constituted a series of 35 cases decided between 1901 and 1922, in the aftermath of the 1898 Treaty of Paris concluding the Spanish–American War (Sparrow Reference Sparrow2006, 257–8; see also Burnett and Marshall Reference Burnett and Marshall2001; Neuman and Brown-Nagin Reference Neuman and Brown-Nagin2015; Rivera Ramos Reference Rivera Ramos2001; Torruella Reference Torruella1985). In the Insular Cases, a Supreme Court majority ruled that Congress could exercise plenary power over the new island possessions by virtue of the authority granted under the US territory clause, which empowered Congress “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States” (Article 4, Section 3, Clause 2). With the decision in Downes v. Bidwell (182 US 244 [1901])–the single-most important of the Insular Cases—the Supreme Court upheld a tax on trade between New York and Puerto Rico, seemingly in violation of the uniformity clause (Article 1, Section 8, Clause 1). In other words, the Court used one of the Constitution’s own provisions, the territory clause, to deny residents of these new territories the privileges and protections of the Constitution’s other provisions.

It was the 1900 Foraker Act’s apparent violation of the uniformity clause and the consequent threat it posed to commerce that led Chief Justice Fuller in Downes v. Bidwell to vigorously dissent, joined by Justices John Marshall Harlan, Rufus Peckham, and David Brewer. As Fuller quoted from Chief Justice Marshall’s ruling in Loughborough v. Blake (15 US 317, 364 [1820]), the “United States” “is the name given to our great republic, which is composed of the States and territories,” District of Columbia, and “territory west of Missouri,” just as it did “Maryland or Pennsylvania.” Accordingly, “the principles of our Constitution, the uniformity in the imposition of imposts, duties, and excises should be observed” throughout the United States, including the territories. The Constitution is “a law for rulers and people, equally in war and in peace,” Fuller proclaimed, citing Judge Thomas Cooley, “and covers with the shield of its protection all classes of men, at all times and under all circumstances” (Downes v. Bidwell; see also Ex Part Milligan 71 US 2, 120–121 [1866]).

The ruling in Downes v. Bidwell departed from this norm. “The contention seems to be,” Fuller wrote in dissent, “that, if an organized and settled province of another sovereignty is acquired by the United States,” then “Congress has the power to keep it like a disembodied shade, in an intermediate state of ambiguous existence for an indefinite period; and, more than that, that after it has been called from that limbo, commerce with it is absolutely subject to the will of Congress, irrespective of constitutional provisions” (Downes v. Bidwell). The Court’s distinction between the “incorporated” previous territories and the new nonincorporated territories, Fuller continued, “assumes that the Constitution created a government empowered to acquire countries throughout the world, to be governed by different rules than those obtaining in the original states and territories.” It was a government that “substitutes for the present system of republican government a system of domination over distant provinces in the exercise of unrestricted power” (Downes v. Bidwell).

A system of “unrestricted power” exercised “over distant provinces” would not come to pass. The US acquisition of “countries throughout the world” or remote possessions peaked in 1899 with the annexation of Eastern Samoa. In 1902, the United States withdrew its forces from Cuba, which was made possible by the 1901 Platt Amendment. The Platt Amendment gave the United States the authority to militarily intervene in Cuba if necessary and permitted the lease of Guantanamo Bay “as a coaling or naval station.” The United States purchased the Danish West Indies shortly before entering World War I and later annexed the Northern Mariana Islands. However, it granted the much more populous and larger Philippines its independence in 1946 and did not subsequently acquire other provinces or countries—the CNMI excepted—notwithstanding its victories in World War I, World War II, and the Cold War.

Chief Justice Fuller and his fellow dissenters may have been wrong in Downes v. Bidwell in foreseeing the US acquisition of a far-flung territorial empire. However, they were correct in that the Supreme Court’s ruling in Downes v. Bidwell and subsequent cases put the US territories in an “ambiguous” constitutional position, which has persisted and will likely persist “for an indefinite period.” In subsequent rulings in the Insular Cases, the Supreme Court denied territorial residents protections with respect to the prohibition against self-incrimination in criminal cases, the right of the accused to confront witnesses, and the right to a speedy and public trial (Sparrow Reference Sparrow2006, 204–206).

Congress created this constitutionally ambiguous position for the US territories by design. Before the signing and ratification of the Constitution, the Confederation Congress already had passed the Ordinance of 1787 establishing a system of government for the Northwest Territory. The text of the Northwest Ordinance and the delegates’ discussions at the Constitutional Convention (Farrand Reference Farrand1937) made it clear that the status of the people and areas coming under US sovereignty but located beyond the several states was to be only temporary. These were states “in embryo,” under the tutelage of the US government until they were ready to be admitted into the Union on an “equal footing” with the extant states (Resolution of 1780; Ordinance of 1787, Section 13, and Article 5). They “were never regarded as mere possessions” but were called “states” (Bestor Reference Bestor and Porter Bloom1973, 13–44). “A Territory, which may be called an inchoate or rudimentary State,” Bryce wrote at the end of the nineteenth century, “looks forwards to becoming a complete State” (Bryce Reference Bryce1891, 556; Eblen Reference Eblen1968; Pomeroy Reference Pomeroy1969).

As the United States acquired more territories and as more territories became states, Congress added more territorial delegates, created more standing committees, and adjusted its political agenda. The bases of partisanship shifted commensurately. Yet, congressional scholars who study the institutional development of Congress (Aldrich Reference Aldrich1995; James Reference James2000; Schickler Reference Schickler2001) have thus far not examined the changes that accompanied the addition—or anticipated addition—of members of Congress from newly admitted states; neither have they studied the roles of the territorial delegates in Congress (but see Stewart and Weingast Reference Stewart and Weingast1992).

Likewise, students of the presidency and federal bureaucracy would secure a better grasp of executive power and public administration by incorporating the study of the US territories, given that the United States’ acquired possessions and established territories came under the authority of US agencies (e.g., the Department of War and the Department of the Interior). Indeed, the Constitution provides conflicting and only partial guidance about how its provisions apply to people and property coming under the sovereignty of the United States but residing outside the boundaries of the American states. The history of the Insular Cases and subsequent federal court and Supreme Court decisions involving the territories show that the US government has considerable latitude under the “incorporation doctrine” regarding which constitutional provisions apply to any issue that involves the territories. The Supreme Court’s recent decisions in Puerto Rico v. Sanchez Valle, Puerto Rico v. Franklin California Tax-Free Trust, and Tuaua v. United States (a case involving the extension of Fourteenth Amendment citizenship to American Samoans, which the US Supreme Court declined to review) simply underscore the continued relevance of the Insular Cases and point to Congress’s and the US government’s continued plenary control over the territories.

The fact that the Constitution and federal laws apply only partially to the US territories suggests the distinctiveness of these quasi-sovereign polities. They share features with the District of Columbia, American Indian reservations, and the territories of other states, such as the Caribbean and Pacific territories of France and Great Britain. Nevertheless, the preferences of territorial citizens themselves are in no way obvious. For example, Puerto Ricans appear to be divided over statehood, and many American Samoans have no desire to fully become a part of the United States. Issues of decolonization, democratic representation, and potential statehood coincide with questions of how best to protect valued indigenous cultures and traditional lifestyles.

In summary, an explicit and systematic inclusion of US territories in political science holds the promise of providing a more complete and consistent discipline for reasons that the following articles make apparent. The contributors address why the study of the US territories evokes issues central to their field of study, why the territories accordingly merit more rigorous investigation, and how the territories might be routinely included in course syllabi and political science curricula.

CONTRIBUTORS

In his article on teaching introductory courses in American politics and government, Bartholomew Sparrow considers how the geopolitical implications of territorial expansion challenge the commonplace understanding of the United States as a federal republic. Sparrow suggests that students of American politics and government would be well served by exploring implications of the fact that the United States is not simply a voluntary federation of states.

The unusual role of the territories in the US federal system is evident in the system of partial representation that the territories have in the federal government, as Jonathan Lewallen explains. He discusses the territories’ unique forms of congressional representation and suggests that the study of the roles and behaviors of the territorial delegates could lead to new ways for students to think about legislatures and political representation.

Colin Moore examines how the study of the expansion and governance of the US territories illuminates three topics central to scholarship in American political development: the development of the American state, the role of race and ethnicity in political development, and the uneven and incomplete democratization of the American polity.

Peter Harris illuminates how the inclusion of the territories in a US foreign-policy course enables students to grapple with race and empire, issues at the core of foreign policy, since the study of the territories at once raises questions about the liberal, democratic, and republican foundations of the United States and undermines notions of American exceptionalism.

Rachel Wellhausen addresses the semi-sovereign status of the territories—a status not unlike that of American Indian and Alaskan Native tribes. The territories sometimes interact with the global economy as units of the United States, whereas on other occasions they exist outside of the strictures of American tax laws, minimum-wage requirements, and other regulations.

Charles Venator-Santiago conducts a close analysis of the relevant legal history to explore how territories are only partially sovereign—in contrast to the separate states—even though their residents are US citizens. He shows the four different logics by which territorial residents can be considered US citizens and explains why they are still not yet full members of the American polity.

Because the US Constitution has no provision for colonies or territories, Gordon Silverstein observes how the Supreme Court effectively amended the Constitution in the Insular Cases so that the United States could include territories on a more-or-less permanent basis. Silverstein further reveals how the Insular Cases fit within a larger history of the Supreme Court’s crucial role of reconciling a weak and decentralized political system for domestic policy with a potent and capable government with respect to foreign policy and international relations.

José Javier Colón-Morera concludes the symposium by discussing how the current situations in Puerto Rico and other US territories reflect the array of complex political factors behind the asymmetries of political power between the federal government and the territories. Colón-Morera integrates the arguments and insights of the symposium contributors to indicate how the serious political issues evoked by the study of present-day US territories at once illuminate and problematize several fundamental issues of American national politics and the federal system of government.