Insular Cases

8 Key excerpts on "Insular Cases"

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  The Louisiana Purchase and American Expansion, 1803–1898

  • Sanford Levinson, Bartholomew Sparrow, Sanford Levinson, Bartholomew Sparrow(Authors)
  • 2005(Publication Date)
  • Rowman & Littlefield Publishers

    (Publisher)

  16 Justice Harlan clarified the meaning of this concept. He explained that the relationship between a territory and the United States was not the same as that between a state and the U.S. government. The government of a state derives its powers from the people of the state, whereas the government of the territory owes its existence wholly to the United States. The Court thus seems to equate plenary to exclusive power. The U.S. government could exert over the territory power that it could not exercise over the states. “The jurisdiction and authority of the United States over that territory [referring to the Philippines] and its inhabitants, for all legitimate purposes of government is paramount,” Justice Harlan asserted. This power, however, is not absolute, for it is restrained by some then-undefined “fundamental rights” possessed by anyone subject to the authority of the U.S. government. Many of the cases decided by the Court after 1904 constituted attempts to clarify, little by little, what those fundamental rights might be.

  The constitutional doctrine of the Insular Cases is still considered good law. It has been reiterated over the decades by the U.S. Supreme Court not only to address controversies related to the territories to which it applies,17 but to buttress decisions taken in other, unrelated legal contexts.18 Lower federal courts, Congress, and the executive have continuously relied on those decisions to justify their exercise of power over the lands and peoples of the territories.

  The doctrine, in essence, constituted the unincorporated territories into subordinated political communities subject to the plenary power of Congress, and their residents into subjects of the federal government with restricted rights. Those decisions, and the political and constitutional understandings upon which they rested, had wider implications for the United States as a political community.

  First, they legitimated the proposition that there are places that can be subjected to the full authority of the United States, without being considered part of the United States as a political community. They also confirmed the principle that peoples subjected to the full authority of the United States can be denied certain rights, or put another way, that people subjected to the full authority of the United States do not necessarily enjoy the full panoply of rights enshrined in the U.S. Constitution. Thirdly, they opened the way for still another framework of fragmented American citizenship that distinguishes among classes of U.S. citizens, recognizing full rights to some and lesser rights to others. In other words, the constitutional framework adopted by the Insular Cases provided for a fractured political community from the point of view of membership and rights.

  Of course, this latter phenomenon was not new in American political and social history. After all, Native Americans, African slaves and their descendants, and women had also been treated as less than full members of a radically fractured political community for many years. In this sense, the Insular Cases represented a high degree of continuity with that history. In another sense, that related to the history of territorial populations in the United States, the Insular Cases clearly marked a pronounced discontinuity. Until 1901, territory acquired by the United States was always thought to be intended to be integrated into the rest of the United States, however drawn out the process might be (as Alaskans would be prone to point out).19

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  Reconsidering the Insular Cases

  The Past and Future of the American Empire

  • Gerald L. Neuman, Tomiko Brown-Nagin, Gerald L. Neuman, Tomiko Brown-Nagin(Authors)
  • 2015(Publication Date)
  • Human Rights Program, Harvard Law School

    (Publisher)

  chapter six The Insular Cases, Differentiated Citizenship, and Territorial Statuses in the Twenty-First Century Rogers M. Smith* Introduction The Insular Cases are central to American political development because, in considering the applicability of the US Constitution to the territories acquired in the Spanish-American War, they addressed some of the most fundamental questions concerning appropriate forms of membership in modern republics. The answers they gave—that Congress had the power to decide whether residents of “unincorporated” territories would be US citizens, US “nationals,” or perhaps something else—were and remain controversial. 1 In those cases, as in others of the Progressive Era (including ones scrutinizing race and gender classifications), the US Supreme Court upheld legislative powers to create what scholars have come to call “differentiated citizenship.” 2 Several of the 1 Bartholomew H. Sparrow, The Insular Cases and the Emergence of American Empire (Lawrence: University Press of Kansas, 2006), 215-16, 221-25. 2 The late political philosopher Iris Young probably did most to establish the term. See, e.g., Iris Marion Young, “Residential Segregation and Differentiated Citizenship,” Citizenship Studies 3 (1999): 237-52. * I would like to thank Jaime Lluch and Gerald L. Neuman for helpful discussions of the themes of this chapter and Reed Smith for invaluable research assistance. 1 Bartholomew H. Sparrow, The Insular Cases and the Emergence of American Empire (Lawrence: University Press of Kansas, 2006), 215-16, 221-25. 2 The late political philosopher Iris Young probably did most to establish the term. See, e.g., Iris Marion Young, “Residential Segregation and Differentiated Citizenship,” Citizenship Studies 3 (1999): 237-52. 104 Rogers M. Smith most important forms of differentiated citizenship then sustained have since been repudiated as systems of unjust inequality.

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  American Colonial Spaces in the Philippines

  Insular Empire

  • Scott Kirsch(Author)
  • 2023(Publication Date)
  • Taylor & Francis

    (Publisher)

  50 And yet it remained a patchwork model of territorial sovereignty, promising to teach and transform but not fully to internalize new subjects as it expanded. How Filipinos would respond to these object lessons in war and democracy, and attempt to leverage or re-work them for their own purposes, would in turn shape efforts to reconstruct the Philippines as both a subordinate territory and liberal democracy-in-training in the next decades. Meanwhile the question of whether, or to what extent, the U.S. Constitution “followed the flag” into the Insular Territories began percolating in a series of Supreme Court decisions that would become known as the Insular Cases (1901–1922).

  Beginning with Downes v. Bidwell, a 1901 customs dispute in which a fruit merchant, Samuel Downes, challenged the right of customs inspectors to impose import duties on oranges brought to New York from Puerto Rico, the Insular Cases served to establish the doctrine that the Constitution did not apply tout court in “unincorporated” territories.51 Rather, as Supreme Court Justice Edward Douglass White wrote in a key concurrence in the narrow decision, while the Constitution “governed the actions of the United States at any location … it was still necessary to determine the appropriate geographical scope of each constitutional provision.”52 Decisions in the Insular Cases, worked out primarily in a number of key rulings from 1901 to 1904, went a long way in delimiting the geographical scope of democracy in overseas U.S. territories, establishing, as legal scholar Efrén Rivera Ramos has argued, a set of propositions that provided the legal framework for the governance of an American colonial empire. The United States, as a sovereign nation, possessed an inherent right to acquire foreign territory, and as a corollary, that Congress possessed the right to govern the territory that it acquired. Majorities rested their claims on the Territory Clause of the Constitution: that “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”53 Yet there was “a distinction to be made between something called incorporated territory and something else called unincorporated territory.”54 While incorporated territories, including the newly annexed Hawaiian Islands, were to be considered integral parts of the country, with the Constitution fully applicable, unincorporated territories, including Puerto Rico and the Philippines, were to be considered “appurtenant to, but not a part of, the United States.”55 Some but not all constitutional provisions would apply in the unincorporated territories; the Territory Clause, the Insular Cases ultimately decided, allowed Congress to determine the appropriate geographical scope of the provisions. Some Constitutional guarantees, including habeas corpus, were considered fundamental rights to be in extended to the unincorporated territories, while others, including rights to jury trial, and freedom from foreign customs duties, were not, bestowing on Congress the power to create around America’s Insular empire a variety of interstitial governmental boundaries.56 Rather than creating an extra-constitutional zone under the category of the Insular Territories, then, the Insular decisions “were intended to provide a constitutional basis for U.S. rule over those lands.”57

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  International Law in the U.S. Supreme Court

  • David L. Sloss, Michael D. Ramsey, William S. Dodge(Authors)
  • 2011(Publication Date)
  • Cambridge University Press

    (Publisher)

  In incorporated terri- tories the Constitution applied fully, while in unincorporated territories it did not. Thus, the Insular Cases gave Congress plenary authority over the latter – subject only to vague and unspecified “fundamental” limitations “inherent” in principles of free government. 88 Although Alford refers to the Court’s territorial “incorporation” doctrine as “natural law constitutionalism,” 89 it might more appropriately be termed “managerial constitu- tionalism.” That is, while the Insular Cases employed a vague language of unspecified “fundamental” rights, the distinction between “incorporated” and “unincorporated” ter- ritories served an immediate and intensely practical administrative function. It drew a bright line dividing the nation’s territorial possessions based on their de facto politi- cal “desirability” as potential new States, an instrumentalist divide that was strategically shrewd in both military and economic terms and highly popular in culturally and racially exclusionary terms. 90 The new doctrine of “unincorporated” territories authorized the political branches to administer the disfavored new possessions in whatever manner they wished, unencumbered by significant constitutional restrictions. 91 It maintained the Court’s position as the ultimate constitutional authority while, in practice, allowing pop- ular opinion to have its sway and the political branches to exercise nearly unhampered administrative control. While developments in those three areas support Professor Alford’s argument that international law served to strengthen government power and weaken the rights of indi- viduals, the fourth area he discusses does not fit that pattern quite so snugly. In a par- ticularly insightful section, he emphasizes the often ignored international aspects of two familiar developments: acceptance of the “Brandeis Brief” and debate over the “incorpo- ration” of the Bill of Rights into the Due Process Clause.

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  The Foundations of the Modern Philippine State

  Imperial Rule and the American Constitutional Tradition in the Philippine Islands, 1898–1935

  • Leia Castañeda Anastacio(Author)
  • 2016(Publication Date)
  • Cambridge University Press

    (Publisher)

  Moreover, the Insular Cases confirmed that, until Congress decided to incorporate territories, its actions in these possessions were constitutionally unrestrained, save for fundamental prohibitions and natural rights embodied in the Consti- tution but rooted outside it. 72 In theory, therefore, Congress was a virtual despot in unincorporated territories like the Philippine Islands, because it was the complete and unrivaled sovereign, enjoying more comprehensive powers than either Congress with respect to the states or the states with respect to the Union. Although Congress was the Islands’ actual sovereign, it was the Insu- lar Government, as Congress’s agent, that directly exercised its prin- cipal’s pure and inherent sovereignty in unincorporated territories. As such, it enjoyed a free hand to design both the structure and substance of the colonial tutelary program, allowing the Philippine Commission to adapt American principles and procedures to Philippine conditions. Con- sequently, the Commission refrained from effecting a wholesale change of insular municipal laws, but substituted them selectively: 73 it retained the Islands’ Spanish civil and criminal laws, but replaced their commercial, 74 procedural, and public laws. 75 But while prescribing that adopted measures “conform to their cus- toms, their habits, and even their prejudices,” McKinley’s Instructions nonetheless aligned the Insular Government with the mainland’s liberal constitutional model by subjecting it to a Bill of Rights and separation of powers theory. Designated with implementing this transplanted scheme was the fledgling Philippine Supreme Court. In this design 88 Foreign in a Domestic Sense and the discourse that animated it, it was believed, lay safety from absolutism.

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  Islands and International Law

  • Donald R Rothwell(Author)
  • 2022(Publication Date)
  • Hart Publishing

    (Publisher)

  29

  III.Islands and Territoriality

  International affairs and modern international relations are replete with disputes over islands. These islands may be adjacent to or distant from metropolitan States, or they may be contiguous to island States. As noted above, territoriality and islands have a particular connection in some parts of the world to colonial voyages of discovery, with the result that many island territorial disputes have been between colonial powers. The analysis that follows will therefore begin with a brief review of the leading historical cases, before turning to assess some of the contemporary decisions of the ICJ and Arbitral Tribunals in this area.

  A.Historical Cases, Precedents and Tests

  The leading historical cases are decisions of the Permanent Court of International Justice (PCIJ), the ICJ, and arbitral tribunals during the twentieth century up to the 1950s. The chronological survey below highlights developments in the relevant international law regarding territoriality and islands.

  (i)Island of Palmas Case (1928)

  The 1928 Island of Palmas case (USA v Netherlands),30 decided by Arbitrator Max Huber, remains one of the leading decisions of an international court or tribunal addressing the international law of territoriality generally, and most specifically with respect to islands. The Island of Palmas (also referred to as Miangas) is a single, isolated island located nearly equidistant from the current-day Indonesian and Philippines archipelagos in the Celebes Sea. The essence of the dispute related to the validity of any title to the island the United States (US) had acquired from Spain by way of the 1898 Treaty of Paris31 as opposed to any title to the island possessed by the Netherlands. The principal US argument was that its title had been acquired by way of cession under the Treaty of Paris, that it had acquired all the rights of sovereignty which Spain had possessed, and the right to recognition of that claim by treaty.32 This claim in turn was based on the US being a successor to Spain whose claim in the first instance had been based on discovery.33 The Netherlands contended that the East India Company had acquired sovereignty over the island as early as the seventeenth century,34 and that sovereignty had effectively been exercised over the islands ‘based on the continuous and peaceful display of State authority.’35

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  Americans Without Law

  The Racial Boundaries of Citizenship

  • Mark S. Weiner(Author)
  • 2006(Publication Date)
  • NYU Press

    (Publisher)

  That new era is the subject of this chapter, which examines the place of juridical racialism during and immediately after the Spanish-American War. I am interested specifically in the role juridical racialism played in the Insular Cases (1901–4), which determined the constitutional status of Puerto Rico, Hawaii, and the Philippines in the wake of the Treaty of Paris (1898) and limited the extent to which residents of the insular possessions were members of the American nation. 4 At the jurisprudential foundation of the Insular Cases, I argue, lay a particular manifestation of juridical racialism associated with the Teutonic origins thesis of American government, a blend of legal history and legal anthropology central to academic life in the late nineteenth century. 5 Exponents of the Teutonic origins thesis claimed that the greatest American legal achievements found their spiritual origin in the legal thought of the free and strong warrior peoples Tacitus describes in his celebrated account of ancient Germany. They accordingly characterized Anglo-Saxons as a people with a special genius for law and state-building, viewed the state and legal order itself as Anglo-Saxon in character, and understood dark-skinned peoples as incapable of legality and congenitally criminal. I begin my analysis by examining the life and work of Senator Henry Cabot Lodge, blue-blooded Bostonian, influential advocate of U.S. imperialism, and early student of the Teutonic origins thesis, a man whose personal and professional self-development rested on a juridical-racial vision of self and society. I then discuss how Lodge and his allies employed this vision in Congress in their promotion of American imperial policy overseas. Turning to the Insular Cases, I suggest how the juridical-racial view Lodge espoused also formed the jurisprudential basis of Downes v

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  Semblances of Sovereignty

  The Constitution, the State, and American Citizenship

  • T. Alexander Aleinikoff, Thomas Alexander ALEINIKOFF(Authors)
  • 2009(Publication Date)
  • Harvard University Press

    (Publisher)

  lization.” According to the Court, destiny had forced a “civilized” American polity to confront “savage” Indians and “inassimilable” Chi-nese at home and “alien races” in the territories abroad, all of whom required suppression or domestication for their own good and for the progress of the United States. 112 Thus, in sustaining the Chinese exclusion laws of the 1880s, the Court held that Congress had the power to prohibit immigration if it “considers the presence of foreigners of a different race in this coun-try, who will not assimilate with us, to be dangerous to its peace and se-curity.” 113 Even the dissents in Fong Yue Ting (the case upholding the power of Congress to expel resident Chinese laborers) are laced with phrases such as “the obnoxious Chinese” and “this distasteful class.” 114 Similar characterizations of the peoples of the new territories be-strew the pages of the Insular Cases. The doctrinal innovation of the cases was the distinction between incorporated and unincorporated territories. But that question was deemed to turn on congressional in-tent, as manifested in treaties and legislation, and there was no doubt that the congressional judgment was based largely on the race and perceived level of civilization of the inhabitants of the newly acquired territories. Areas populated by “barbarians” not thought fit for full U.S. membership were found not to have been incorporated into the United States, and those persons living in such territories were there-fore not entitled to full constitutional protection.

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