Termpaperals

Hassan Ahmad
Professor Brad R. Roth

American Legal Systems and Processes
20 April 2015
The Obsoleteness of the Insular Cases
It is the nature of successful nations to adapt to changing times, yet the United States has
been fragmented in its approach to progression and adaptation. In many regards the nation has
moved forward at unimaginable rates, but in many social issues, this is far from the norm. In the
early twentieth century, the Supreme Court of the United States (SCOTUS) took up a series of
cases dealing with the status and rights of the Island Territories acquired by the United States in
the Spanish-American War. Previously known as Spains Pacific possessions, the islands were
established as unincorporated territories, separate and unequal from the incorporated territories,
and later states, of Hawaii and Alaska.1 As a result of these Insular Cases, the United States
Constitution was only partially applied to the islands of Puerto Rico, Guam, the Northern
Marianas, American Samoa, and the Virgin Islands (hereinafter Island Territories). As such,
those born in the Island Territories live on the sovereign land of the US, yet are unable to vote
for president, or maintain full rights of citizenship.23 It is better for the nation, in the long run, to
establish its Island Territories either as incorporated land, or as states, because 4.1 million people
cannot continue to be silenced using case law that is a century old and refers to them as
"What Are The Insular Cases? - Puerto Rico 51st." Puerto Rico 51st. N.P., 14 Jan. 2015. Web. 18 Apr. 2015.
"American Samoans Demand Right To Vote" New America Media. N.P., N.D. Web. 18 Apr. 2015.
3
"Court's Decisions in the Insular Cases; Dissenting Opinion Filed By the Chief Justice." Court's Decisions in the Insular
Cases. N.P., 28 May 1901. Web. 18 Apr. 2015.
2
Ahmad 2
savage alien races that are unable to understand upright, Anglo-Saxon traditions and
beliefs.4
All in all, the seven widely regarded Insular Cases and their further judicial elaborations
establish case law that govern the unincorporated Island Territories unequally in comparison to
the states. In the Cases, SCOTUS divided the territories into incorporated territories and
unincorporated territories, and established that not all constitutional provisions apply to the
territories, and even fewer apply to the unincorporated ones. Political rights of full participation
in the governance of the United States, representation in Congress, and the power to elect federal
officials have only been granted to states. They are also prevented from having a voting member
in either of the houses of Congress, so they send non-voting delegates to the US House of
Representatives after hosting their own straw polls in-territory. Due to this separation, the four
million and counting residents of the territories remain underrepresented and disenfranchised.
The Justices continue by reaffirming the United States inherent sovereign right to acquire and
govern territory, and under the Territorial Clause of the Constitution, Congress has the complete
plenary power to govern all acquisitions. As a part of these powers, Congress is able to extend all
federal laws into the territories, incorporate them, grant them independence, or cede them to
another country, but is not obligated to perform any of the aforementioned actions. The justices
are also clear in noting that Congress granting birthright citizenship to a territory will not have
the same effect as officially incorporating a territory.5
Brown, Hon. Henry Billings. "Downes V. Bidwell, 182 U.S. 244 (1901)." FindLaw | Cases and Codes for Legal
Professionals. U.S. Supreme Court, N.D. Web. 18 Apr. 2015.
5
"Update On American Samoa Birthright Citizenship Case: Tuaua V. U.S." LexisNexis Legal Newsroom Immigration
Law. N.P., N.D. Web. 18 Apr. 2015.
Ahmad 3
The fifth of the Insular Cases, Downes v, Bidwell (1901), is the one most regarded as a
landmark decision by SCOTUS.6 The case involved the Samuel Downes, who had shipped
oranges to the United States mainland from Puerto Rico, a newly acquired territory at the time.7
To his surprise, he was forced to pay import duties and taxes at the Port of New York. As a
result, he sued the United States Customs Inspector, George R. Bidwell, on the grounds that the
duties violated Article I, Section 8 of the US Constitution, which guarantees that all duties will
be uniform across the United States.8 His suit argued that if the duties did not apply among the
states they should not apply between the states and the territory of Puerto Rico after it was
officially under US control. Whilst ruling against the plaintiff, the court held that the states and
the incorporated territories, those destined to achieve statehood, were the only areas that would
receive the full rights and benefits of the Constitution. On the other hand, the newly-acquired
unincorporated territories, which were not considered candidates for statehood largely because
of their racial and ethnic makeup, would be governed in a wholly different way.9
In Downes five-to-four decision, under Chief Justice Fuller, the court labeled the
annexed Island Territories as property belonging to the United States, but not a part of the
United States10, and as such, were not entitled to those benefits provided to the residents of the
states and the incorporated territories. The distinction was made in the decision written by Justice
Henry Billings Brown, as the separation of the states from those possessions inhabited by
alien races, differing from us in religion, customs, laws, methods of taxation, and modes of
6
"Court's Decisions in the Insular Cases; Dissenting Opinion Filed By the Chief Justice." Court's Decisions in the Insular
Cases. N.P., 28 May 1901. Web. 18 Apr. 2015.
7
Gelp, Hon. Gustavo A. "The Insular Cases: A Comparative Historical Study of Puerto Rico, Hawaii, And the
Philippines." The Federal Lawyer (N.D.): N. Pag. Web. 18 Apr. 2015.
8
9
10
Ahmad 4
thought.11 The Island Territories, then, would be under the control of the US Congress, but not
subject to the Constitution, at least not completely. This method of division was not unusual for
Justice Brown, as he had written the majority opinion of the Plessy v. Ferguson (1896) decision
only five years earlier, which confirmed and reaffirmed the segregation doctrine of separate but
equal with regard to African-Americans in the mainland United States. With Downes, however,
the travesty of justice went a few steps further and SCOTUS affirmed the Island Territories as
separate and unequal. In a similar sense, it is worth noting that many legal scholars have noticed
the racial element to the correlation between the two cases at hand.12 Justice Edward Douglass
White, in his concurring opinion in Downes, asserted that an uncivilized race in a new territory
would "inflict grave detriment on the United States" from "the immediate bestowal of citizenship
on those absolutely unfit to receive it."13 The Plessy decision was directed to separate the
minority, African-Americans, from the majority of white Americans, while in Downes the white
American majority of the states was separated from the 98.4% racial or ethnic minorities
residing in the Island Territories.
Furthermore, in the Downes decision, Justice Brown made it apparent that although the
residents of the Island Territories make the the administration of government and justice,
according to Anglo-Saxon principles, difficult and may [even] be impossible, the decision
was to last for a time14 He followed up by stating that there may come a time that
ultimately our own theories may be carried out, and the blessings of a free government under the
11
12
USCA Case #13-5272 Document #1492656 Filed: 05/12/2014. "Brief of Citizenship Scholars as Amici Curiae In
Support Of Appellants and Urging Reversal." United States Court Of Appeals for the District of Columbia Circuit (N.D.):
N. Pag. Web.
13
14
Ahmad 5
Constitution extended to them.15 Sadly, 114 years later, not much has moved in the efforts to
make the residents of the Island Territories equivalent to the residents of the fifty states.
Populations have increased, communication has become instant, and it is now blatantly obvious
that insinuating a person of a different ethnicity or race is lesser, alien16, and/or illiterate is
outright racist.17 The century-old decisions and holdings of the Insular Cases have outlasted their
logical expiration, yet continue to plague the Island Territories today. In closing his thoughts on
the eventual overruling and the permanence of his opinion in Downes, Justice Brown writes,
We decline to hold that there is anything in the Constitution to forbid such action. This
statement is a key nod to both future legislators, and justices of the SCOTUS. Therefore, there is
nothing stopping the US Congress, nor the SCOTUS, if such a case arises, from overturning the
Insular Cases.18
By statute, on a case-by-case basis, every one of the five Island Territories gained the
benefit of birthright citizenship, except for American Samoa.19 Those born in American Samoa
are regarded as US Noncitizen-Nationals instead of Citizens, thus being classified as lower than
the rest of the states and Island Territories combined.20 The Insular Cases are obviously out of
date, and a case currently in the DC Circuit Court of Appeals, Tuaua v. United States21, brings
them into the harsh spotlight of the 21st century.22 The case was brought forward by American
15
16
Romn, Ediberto. "The Alien-Citizen Paradox and Other Consequences of U.S. Colonialism." Florida State University
Law Review (N.D.): N. Pag. Web.
17
"Obama Administration Using Century-Old Racist Case Law to Block Citizenship." Mother Jones. N.P., N.D. Web. 18
Apr. 2015.
18
Graber, Mark A. "The Coming Constitutional Yo-Yo? Elite Opinion, Polarization, and the Direction of Judicial
Decision Making." Howard Law Journal (N.D.): N. Pag. Web.
19
Law. N.P., N.D. Web. 18 Apr. 2015.
20
21
"Tuaua V. United States." We the People Project. N.P., N.D. Web. 18 Apr. 2015.
22
Apr. 2015.
Ahmad 6
Samoans Leneuoti Tuaua, Emy Afalava, Vaaleama Fosi, Fanuatanu Mamea, Taffy-Lei Maene,
and the Samoan Federation of America.23 The plaintiffs allege that the Federal Government and
its laws and policies violate the Constitution24 by denying American Samoans birthright
citizenship and forcing them to naturalize.25 They support their claim by citing the first sentence
of the Fourteenth Amendment to the US Constitution, also known as the Citizenship Clause, All
persons born in the United States, and subject to the jurisdiction thereof, are citizens of the
United States26. The Fourteenth Amendments claim to fame also lies with the fact that it
overturned the Dred Scott v. Sanford (1857) decision, which had, along with denying AfricanAmericans citizenship, asserted that the Federal government did not have the right to govern
within territories gained after the creation of the nation.
The Tuaua plaintiffs second point of argument is the disuniformity and unfairness with
which the territories are treated. Citing a 2008 ruling of SCOTUS, in Boumediene v. Bush, the
plaintiffs contend that while Congress and the President can govern territory as they please, they
do not have the power to decide when and where its terms apply.27 As such, the Executive and
the Legislature cannot turn the power of the Constitution on and off at will, whenever or
wherever they choose. The plaintiffs case was dismissed at the US District Court for the District
of Columbia, but was granted an appeal, which is currently in progress, at the US Court of
Appeals for the District of Columbia. Interestingly enough, the Obama Administration has been
fighting the case tooth and nail, even though it has not needed the intervention of the Executive.
23
"Oral Argument for Leneuoti Tuaua V. United States - Courtlistener.Com." Court Listener. N.P., N.D. Web. 18 Apr.
2015.
24
USCA Case #13-5272 Document #1467627 Filed: 11/22/2013. "Plaintiffs-Appellants Opposition To DefendantsAppellees Motion For Summary Affirmance." United States Court Of Appeals for the District of Columbia Circuit
(N.D.): N. Pag. Web. 18 Apr. 2015.
25
26
"Tuaua V. United States: Does The Citizenship Clause Mean What It Says?" Washington Post. The Washington Post,
N.D. Web. 18 Apr. 2015.
27
Ahmad 7
If the Administration would have believed the Insular Cases and their established case law
denying birthright citizenship were unconstitutional, it could opt-out of defending it in court.28
Unfortunately, the Administration continues to cite the Insular Cases and their consecutive case
law to justify denying citizenship to American Samoans. Since the beginning of the Tuaua legal
process, the Administrations Department of Justice (DOJ) has involved itself and its lawyers
have argued over the case, even though the DOJ usually gets involved after cases such as this
have reached the appellate court.29
There are quite a few ways the appellate court, or SCOTUS can move forward and
change the entire narrative of history. The first and most viable of these options is to abolish the
separation between unincorporated and incorporated territories.30 In todays world, its absurd to
maintain the belief that the residents of the territories would be a detriment to the American
society, therefore granting all of them incorporated status will strike a blow to the white
supremacy laced into case law. Asserting this change as a part of a court decision would grant
constitutional provisions to all of the territories and allow them to take steps toward statehood if
they choose to do so.31 The reason why SCOTUS created the unincorporated/incorporated
division was rooted in racial supremacy that has outstayed its welcome. Incorporation would
provide residents with citizenship and the right to vote, and the creation of a legitimate territorial
governorship. A decision like this would also favor and solve the issue brought up in Tuaua, as
American Samoans will be included. Though this would be a step forward, it still wont address
the fact that residents of the Island Territories will not be able to vote for the President or any
28
Apr. 2015.
29
Apr. 2015.
30
31
Graber, Mark A. "The Coming Constitutional Yo-Yo? Elite Opinion, Polarization, and the Direction of Judicial
Decision Making." Howard Law Journal (N.D.): N. Pag. Web.
Ahmad 8
federal offices, nor will they be provided a voting delegation to the US Congress, as both these
items will still require statehood.
A second option for the court would be to rule in favor of the plaintiffs without any
additional changes to the current status of overarching laws. This would be the easiest and most
likely route to a positive decision for the court, as they would just have to extend the guarantee
of birthright citizenship onto a small territory. A ruling of this kind would not be helpful in
changing the legal norms relative to the Insular Cases, as they will still stand. The last of the
three likely options would be for the court to accept a Motion to Dismiss, or rule in favor of the
defendants, thereby affirming the lower courts decision and the holdings of the Insular Cases.
There are, obviously, ways to get around the courts and have the issue be solved in the
Legislature and the Executive, though it is unlikely due to the political climate in Washington.
An Act of Congress can easily incorporate territories, expand federal laws into the territories,
grant birthright citizenship, and, through Joint Resolution, grant statehood.32
Its difficult, if not impossible, to find logical reasons to uphold case law that many
scholars have regarded as both bad law, and inherently racist decisions.33 The Insular Cases are
rooted in a false premise that separates the average American and deems him/her superior over
the average American Samoan.34 This defies the belief that is championed by the United States
as a whole, that all men are created equal and as such will be treated equally under our laws.
The Fourteenth Amendment, which took effect in 1868, specifically in the Equal Protections
Clause, states that no state can deny to any person the equal protection of the laws. The Clause
was broadened further than the states in Wo v. Hopkins (1886) where SCOTUS stated that
32
Law. N.P., N.D. Web. 18 Apr. 2015.
33
"The D.C. Circuit, Samoan Citizenship, and the Insular Cases." Just Security Rss. N.P., 04 Feb. 2015. Web. 18 Apr.
2015.
34
Apr. 2015.
Ahmad 9
These provisions [of the Fourteenth Amendment] are universal in their application to all
persons within the territorial jurisdiction, without regard to any differences of race, of color, or
nationality, and the equal protection of the laws is a pledge of the protection of equal laws.35
Citing the Hopkins ruling, ten years later, the court elaborated further in the case of Wing v.
United States (1896), stating, in part, it must be concluded that all persons within the territory of
the United States are entitled to the protection guaranteed by those amendments.36 Following
the progressive logic of the Supreme Court, we can conclude that under the Constitution which is
applied to the territory of the United States as a whole, American Samoans and the other
territories cannot be barred from receiving constitutional rights.37
The only two partially-viable arguments on the side of the Insular Cases relate to the way
of life enjoyed by American Samoans and other in the Island Territories. Specifically referring to
American Samoa, the society is handled differently than that of other territories and the states. In
essence, they reserve land for those who maintain Samoan ancestry, and the chiefs of villages
hold a majority of the decision making power. Incorporating them would create the addition of a
territorial governorship, disrupting their long-held way of life.38 The second issue at hand would
be the possibility of independence. As incorporated territories, the Island Territories will no
longer have the option of asking for/receiving independence from the United States, and would
instead put them on track toward statehood. The distinction between unincorporated and
incorporated territories, as laid out in the Insular Cases, also includes the differentiation between
belonging to and being a part of the United States. If the cases are struck down, this will be
35
"Tuaua V. United States: Does The Citizenship Clause Mean What It Says?" Washington Post. The Washington Post,
N.D. Web. 18 Apr. 2015.
36
"The Insular Cases: Constitutional Experts Assess The Status Of Territories Acquired In The SpanishAmerican War
(Video) - Harvard Law Today." Harvard Law Today. N.P., N.D. Web. 18 Apr. 2015.
37
Romn, Ediberto. "The Alien-Citizen Paradox and Other Consequences of U.S. Colonialism." Florida State University
Law Review (N.D.): N. Pag. Web.
38
Azaransky, Sarah. Religion and Politics in America's Borderlands. Lanham: Lexington, 2013. Print.
Ahmad 10
of no issue, but if the resulting ruling is just that the long-standing Island Territories suddenly
become incorporated, the Constitution will bar them from ever leaving the Union. It is worth
noting, at this point, that it is very unlikely that any of the Island Territories will ever petition for
and request independence. The Island Territories regard themselves as a part of the United States
and holistically American, and that fact is not even close to changing. One in eight Guamanians
have served in the US Armed Forces, and more than a quarter of Guams land has been allocated
as US Air Force and US Navy bases. In American Samoa, rests the largest and most productive
US Army recruiting station. On an even larger scale, the Puerto Rican territory is home to over
3.8 million American Citizens, a figure larger than 24 states, including the incorporatedterritories-turned-states of Alaska and Hawaii.39
There is barely an argument left to be had when these facts are considered, because it is
blatantly obvious that it is nonsensical to keep the Island Territories at arms length. The status
of Tuaua and the residents of the Island Territories continue to show us that our nation, which
prides itself on being a melting pot still prefers divisiveness over inclusion. The Insular Cases
are a stain on the history of SCOTUS, and are a remnant of an obsolete past. The idea that one
man is better and more deserving of benefits than another due to their race, ethnicity, location, is
wholly antiquated. In closing, incorporation is the key to progress on this long-standing issue.
114 years after the Insular decisions, the courts, as well as the political branches of the Federal
Government are obligated by duty to resolve the status of the Island Territories, provide them
with the Constitutional rights that have been illegally kept from them, and aid them into the
process of statehood if they so choose.
39
"Rejecting Colonial Justification: Puerto Rico and the Insular Cases." Brown Political Review Rss. N.P., N.D. Web. 18
Apr. 2015.
Ahmad 11
Works Cited
"American Samoans Demand Right To Vote" New America Media. N.P., N.D. Web. 18
Apr. 2015.
Azaransky, Sarah. Religion and Politics in America's Borderlands. Lanham: Lexington,
2013. Print.
Brown, Hon. Henry Billings. "Downes V. Bidwell, 182 U.S. 244 (1901)." FindLaw |
Cases and Codes for Legal Professionals. U.S. Supreme Court, N.D. Web. 18 Apr. 2015.
"Court's Decisions in the Insular Cases; Dissenting Opinion Filed By the Chief Justice."
Court's Decisions in the Insular Cases. N.P., 28 May 1901. Web. 18 Apr. 2015.
"The D.C. Circuit, Samoan Citizenship, and the Insular Cases." Just Security Rss. N.P.,
04 Feb. 2015. Web. 18 Apr. 2015.
Gelp, Hon. Gustavo A. "The Insular Cases: A Comparative Historical Study of Puerto
Rico, Hawaii, And the Philippines." The Federal Lawyer (N.D.): N. Pag. Web. 18 Apr. 2015.
Graber, Mark A. "The Coming Constitutional Yo-Yo? Elite Opinion, Polarization, and
the Direction of Judicial Decision Making." Howard Law Journal (N.D.): N. Pag. Web.
"The Insular Cases: Constitutional Experts Assess The Status Of Territories Acquired In
The SpanishAmerican War (Video) - Harvard Law Today." Harvard Law Today. N.P., N.D.
Web. 18 Apr. 2015.
"Obama Administration Using Century-Old Racist Case Law to Block Citizenship."
Mother Jones. N.P., N.D. Web. 18 Apr. 2015.
"Oral Argument for Leneuoti Tuaua V. United States - Courtlistener.Com." Court
Listener. N.P., N.D. Web. 18 Apr. 2015.
Ahmad 12
"Rejecting Colonial Justification: Puerto Rico and the Insular Cases." Brown Political
Review Rss. N.P., N.D. Web. 18 Apr. 2015.
Romn, Ediberto. "The Alien-Citizen Paradox and Other Consequences of U.S.
Colonialism." Florida State University Law Review (N.D.): N. Pag. Web.
"Tuaua V. United States: Does The Citizenship Clause Mean What It Says?" Washington
Post. The Washington Post, N.D. Web. 18 Apr. 2015.
"Update On American Samoa Birthright Citizenship Case: Tuaua V. U.S." LexisNexis
Legal Newsroom Immigration Law. N.P., N.D. Web. 18 Apr. 2015.
USCA Case #13-5272 Document #1467627 Filed: 11/22/2013. "Plaintiffs-Appellants
Opposition To Defendants-Appellees Motion For Summary Affirmance." United States Court
Of Appeals for the District of Columbia Circuit (N.D.): N. Pag. Web. 18 Apr. 2015.
USCA Case #13-5272, Document #1492589, Filed: 05/12/2014. "Brief of Amici Curiae
Scholars of Constitutional Law and Legal History In Support Of Neither Party." United States
Court Of Appeals (N.D.): N. Pag. Web.
USCA Case #13-5272 Document #1492656 Filed: 05/12/2014. "Brief of Citizenship
Scholars as Amici Curiae In Support Of Appellants and Urging Reversal." United States Court
Of Appeals for the District of Columbia Circuit (N.D.): N. Pag. Web.
"What Are The Insular Cases? - Puerto Rico 51st." Puerto Rico 51st. N.P., 14 Jan. 2015.
Web. 18 Apr. 2015.

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Hassan Ahmad

Professor Brad R. Roth

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