The Insular Cases: History and Significance

U.S. Supreme Court Justices, 1904
1904: Members of the US Supreme Court Justice Oliver Wendell Holmes (1841 - 1935), Justice Peckham, Joseph McKenna (1843 - 1926), William Rufus Day (1849 - 1923), Henry Billings Brown (1836 - 1913), John Marshall Harlan (1833 - 1911), Melville Weston Fuller (1833 - 1910), David Josiah Brewer (1837 - 1910) and Edward Douglass White (1845 - 1921).

MPI / Getty Images

The Insular Cases refers to a series of Supreme Court decisions made beginning in 1901 concerning the constitutional rights afforded to residents of the overseas territories the U.S. had acquired in the Treaty of Paris: Puerto Rico, Guam, and the Philippines, as well as (eventually), the U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands.

The territorial incorporation doctrine was one of the major policies that stemmed from the Insular Cases and is still in effect. It means that territories that weren't incorporated into the U.S. (unincorporated territories) don't enjoy the full rights of the Constitution. This has been particularly problematic for Puerto Ricans, who, although they have been U.S. citizens since 1917, can't vote for president unless they reside on the mainland.

Fast Facts: The Insular Cases

  • Short Description: A series of Supreme Court decisions made in the early 20th century relating to U.S. overseas territories and the constitutional rights their residents enjoy.
  • Key Players/Participants: U.S. Supreme Court, President William McKinley, residents of Puerto Rico, Guam, the Philippines
  • Event Start Date: January 8, 1901 (arguments began in Downes v. Bidwell)
  • Event End Date: April 10, 1922 (decision in Balzac v. Porto Rico), although the decisions of the Insular Cases are still largely in effect.

Background: The Treaty of Paris and American Expansionism

The Insular Cases were the result of the Treaty of Paris, signed by the U.S. and Spain on December 10, 1898, which officially ended the Spanish-American War. Under this treaty, Cuba gained independence from Spain (though was subject to a four-year occupation by the U.S.), and Spain ceded possession of Puerto Rico, Guam, and the Philippines to the U.S. The Senate did not immediately ratify the treaty, as many senators were concerned about American imperialism in the Philippines, which they viewed as unconstitutional, but it eventually ratified the treaty on February 6, 1899. Within the Treaty of Paris was a statement noting that Congress would determine the political status and civil rights of the natives of the island territories.

William McKinley won reelection in 1900, largely on a platform of overseas expansion, and only months later, the Supreme Court was forced to take up a series of decisions, known as the Insular Cases, that would determine whether the people in Puerto Rico, the Philippines, Hawaii (which had been annexed in 1898), and Guam would be U.S. citizens, and to what extent the Constitution would apply to the territories. There were nine cases in total, eight of which related to tariff laws and seven of which involved Puerto Rico. Later Constitutional scholars and historians of the island territories affected included other decisions within the Insular Cases.

Cartoon about American expansionism, 1900
Illustrated cartoon of President William McKinley depicted as a tailor, measuring 'Uncle Sam' for a suite, circa 1900. Fotosearch / Getty Images

According to Slate writer Doug Mack, "President William McKinley and other leaders of the day aimed to bolster U.S. global stature by following the template of European powers: controlling the oceans by controlling islands, holding them not as equals but as colonies, as possessions. Hawaii...largely fit this new plan. In legal terms, though, it followed the existing territory model, as Congress followed the precedent of quickly granting it full Constitutional rights." However, the same approach did not apply to the new territories, as the government did not extend full constitutional rights to the residents of Puerto Rico, Guam, the Philippines, or American Samoa (which the U.S. acquired in 1900).

All throughout 1899, it was widely believed that Puerto Rico would be extended all the rights of U.S. citizenship, and that it would eventually become a state. However, by 1900 the issue of the Philippines was more pressing. Puerto Rican judge and legal scholar Juan Torruella writes, "President McKinley and Republicans became anxious, lest the granting of citizenship and free trade to Puerto Rico, a move which they generally favored, set a precedent regarding the Philippines, which by this time were engaged in a full scale insurrection which would eventually last three years and cost more than the entire Spanish-American War."

Torruella details the explicit racism of the debates in Congress, where legislators generally saw Puerto Ricans as a "whiter," more civilized people who could be educated, and Filipinos as unassimilable. Torruella quotes Representative Thomas Spight of Mississippi on Filipinos: “Asiatics, Malays, negroes and of mixed blood have nothing in common with us and centuries cannot assimilate them...They can never be clothed with the rights of American citizenship nor their territory be admitted as a State of the American Union.” 

The issue of what to do with the people of the island territories was key in the presidential election of 1900, between McKinley (whose running mate was Theodore Roosevelt) and William Jennings Bryan.

Downes v. Bidwell 

Considered to be the most important case among the Insular Cases, Downes v. Bidwell related to whether shipments from Puerto Rico to New York were considered to be interstate or international, and thus subject to import duties. The plaintiff, Samuel Downes, was a merchant who sued George Bidwell, the customs inspector for the port of New York, after being forced to pay a tariff.

The Supreme Court decided in a five-to-four decision that the island territories were not a part of the U.S. constitutionally with respect to tariffs. As Puerto Rican judge Gustavo A. Gelpi writes, "the Court devised the doctrine of 'territorial incorporation,' according to which two types of territories exist: incorporated territory, in which the Constitution fully applies and which is destined for statehood, and unincorporated territory, in which only 'fundamental' constitutional guarantees apply and which is not bound for statehood." The reason behind the decision was related to the fact that the new territories were "inhabited by alien races" that couldn't be governed by Anglo-Saxon principles.

Cartoon depicting Uncle Sam, Puerto Rico's "uncle"
Cigar box label reads 'El Tio de Puerto Rico' and features an illustration of Uncle Sam who points to Puerto Rico on a globe, while standing on beach at sunset, late 19th or early 20th century. Buyenlarge / Getty Images 

The Territorial Incorporation Doctrine 

The territorial incorporation doctrine that arose from the Downes v. Bidwell decision was crucial in terms of deciding that unincorporated territories wouldn't enjoy the full rights of the Constitution. Over the next few decades and in different cases, the Court determined which rights were considered "fundamental."

In Dorr v. United States (1904), the Court ruled that the right to a jury trial was not a fundamental right that applied to the unincorporated territories. However, in Hawaii v. Mankichi (1903), the Court decided that because U.S. citizenship had been granted to native Hawaiians in the Hawaii Organic Act of 1900, the territory would become incorporated, though it didn't become a state until 1959. However, the same decision was not made with respect to Puerto Rico. Even after Puerto Ricans were extended American citizenship under the 1917 Jones Act, Balzac v. Porto Rico (1922, the last Insular Case) affirmed that they still didn't enjoy all constitutional rights, such as the right to a jury trial, because Puerto Rico hadn't become incorporated.

One result of the Balzac v. Porto Rico decision was that in 1924, the Puerto Rico Supreme Court decided that the 19th Amendment, which granted women the right to vote, wasn't a fundamental right; there wasn't full female enfranchisement in Puerto Rico until 1935.

Some other decisions relating to the territorial incorporation doctrine were Ocampo v. United States (1914), involving a Filipino man, where the Court denied the right to indictment by a grand jury because the Philippines wasn't an incorporated territory. In Dowdell v. United States (1911), the Court denied defendants in the Philippines the right to confront witnesses.

As for the ultimate path of the Philippines, Congress never conferred U.S. citizenship. Although Filipinos began an armed struggle against American imperialism almost directly after the U.S. took over control from Spain in 1899, the fighting died down by 1902. In 1916 the Jones Act was passed, which contained a formal promise by the U.S. to grant independence to the Philippines, which finally came to pass with the 1946 Treaty of Manila.

Criticism of the Insular Cases

Law scholar Ediberto Román, among others, views the Insular Cases as evidence of racist American imperialism: "This principle allowed the United States to expand its empire without being constitutionally compelled to accept as citizens populations that might be part of an 'uncivilized race.'" However, even among the Supreme Court justices at the turn of the 20th century, there was division over many of these decisions. Román reproduces Justice John Marshall Harlan's dissent in the Downes case, noting that he objected to the morality and unfairness of the incorporation doctrine. In fact, Harlan was also the lone dissenter on the Court in the crucial Plessy v. Ferguson decision, which legally enshrined racial segregation and the doctrine of "separate but equal."

Again, in Dorr v. United States, Justice Harlan dissented from the majority decision that a right to trial by jury wasn't a fundamental right. As quoted in Román, Harlan wrote, "Guaranties for the protection of life, liberty, and property, as embodied in the Constitution, are for the benefit of all, of whatever race or nativity, in the States composing the Union, or in any territory, however acquired, over the inhabitants of which the Government of the United States may exercise the powers conferred upon it by the Constitution."

Justice John Harlan
John Marshall Harlan wears judge's robes. Marshall was an associate justice of the United States Supreme Court. Historical / Getty Images

Later justices also critiqued the Insular Cases' doctrine of territorial incorporation in cases that came before the Supreme Court, including Justice William Brennan in 1974 and Justice Thurgood Marshall in 1978. Torruella, who still serves as a judge in the U.S. Court of Appeals for the First Circuit, has been the leading contemporary critic of the Insular Cases, calling them "the doctrine of separate and unequal." It's important to note that many critics view the Insular Cases as sharing the mindset of racist laws passed by the same Court, specifically Plessy v. Ferguson. As Mack states, "That case was overturned, but the Insular Cases, which are built on the same racist worldview, still stand today."

Long-Term Legacy

Puerto Rico, Guam, American Samoa (since 1900), the U.S. Virgin Islands (since 1917), and the Northern Mariana Islands (since 1976) remain unincorporated territories of the U.S. today. As stated by political scientist Bartholomew Sparrow, "The U.S. government continues to have sovereignty over U.S. citizens and areas that do not have...equal representation, since territorial inhabitants...are unable to vote for federal officeholders."

The Insular Cases have been particularly damaging for Puerto Ricans. Residents of the island must adhere to all federal laws and pay federal taxes into Social Security and Medicare, as well as paying federal import and export taxes. In addition, many Puerto Ricans have served in the U.S. armed forces. As Gelpi writes, "It is unfathomable to understand how, in 2011, U.S. citizens in Puerto Rico (as well as in the territories) still cannot vote for their President and Vice President or elect their voting representatives in either house of Congress."

Most recently, the devastation caused by Hurricane Maria in 2017, where Puerto Rico suffered a total blackout across the island that resulted in thousands of deaths, was clearly related to the appallingly slow response by the U.S. government in sending aid. This is another way in which the "separate and unequal" Insular Cases have affected residents of Puerto Rico, in addition to the neglect experienced by those living in the U.S. Virgin Islands, Guam, Samoa or the Northern Mariana Islands.

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