In the Insular Cases of the early twentieth century, the Supreme Court ruled that much of the Constitution does not apply to America’s “unincorporated” overseas territories, such as Puerto Rico and other territories acquired as a result of the Spanish-American War of 1898. Thus, the federal government could rule the people there without being constrained by a variety of constitutional rights. Only “fundamental” rights were held to constrain the federal government’s powers over the inhabitants of these territories, while other constitutional constraints on federal power did not apply. In a 2022 concurring opinion, Supreme Court Justice Neil Gorsuch urged the Court to overrule these decisions. Prominent originalist legal scholar Michael Ramsey’s important new article explains why Gorsuch was right.
Ramsey compellingly demonstrates that the Insular Cases were wrongly decided, at least from an originalist standpoint. And his argument has potential implications that go beyond the status of people living in “unincorporated” territories. There have been various previous critiques of the Insular Cases. But Ramsey’s is the first systematic scholarly dismantling undertaken from an originalist perspective.
The unincorporated territories currently include American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands, plus some minor islands with little or no human population.
In a detailed examination of the text and original meaning of the Constitution’s Territories Clause and other relevant provisions, Ramsey shows that “under the Territory Clause, Congress’s power over U.S. territory [outside the states] is very broad, essentially amounting to a general police power.” But he argues persuasively that “the grant to Congress of general police power in territories does not suggest that Congress is thereby freed of other specific limitations on Congress’s power arising from the Constitution’s structural and individual rights provisions.” The only exceptions are provisions that explicitly apply only to the states, such as the Guarantee Clause of Article IV, which guarantees to the states a “republican” government.
Ramsey also demonstrates that this conclusion is consistent with federal policy and Supreme Court precedent of the pre-Civil War era. The tradition was continued in the initial aftermath of the Reconstruction Amendments. For example, it was generally understood that children born in federal territories were entitled to birthright citizenship.
That longstanding body of precedent was undercut by the Insular Cases as a result of the racism and imperialism of the late nineteenth and early twentieth centuries–the same period, following the same intellectual trends, that also produced Plessy v. Ferguson.
As Ramsey explains, overruling the Insular Cases would have only modest immediate practical implications today. It would require little or no change to the structure of territorial government. It also would not preclude the United States from granting these territories independence, if, for example Puerto Rico were to vote for it in a referendum.
Some additional constitutional individual rights would be extended to the inhabitants of the territories. For example, they would gain the constitutional right of birthright citizenship under the Fourteenth Amendment. But many constitutional rights, including that one, have already been extended to them by statute (American Samoa is an exception on the birthright citizenship front). Ramsey notes that territorial inhabitants now do not always enjoy the right to civil juries under the Seventh Amendment. Overruling the Insular Cases would remedy that.
On the structural front, Congress could no longer impose additional tariffs on goods imported into the territories and then reexported to the “incorporated” United States. This would have only a minor economic impact, but a beneficial one.
Perhaps most important, a future Congress could no longer strip residents of these territories of some of their constitutional rights. Even if such a possibility seems remote now, it could become a more realistic prospect in the future.
Ramsey’s argument does, however, have potentially important broader implications. The Insular Cases are not the only important nonoriginalist, atextual abrogations of constitutional rights blessed by the Supreme Court as a result of late-19th century racial bigotry. The same is true of the “plenary power” doctrine, which exempts immigration restrictions from many of the constitutional constraints that apply to all other exercises of federal power. While later decisions have called elements of this doctrine into question, enough remains that it is not completely clear whether, for example, the government can deport immigrants for speech protected by the First Amendment. (I argue the answer should be an emphatic “no”, and recent lower court decisions have reached similar conclusions in cases addressing the Trump Administration’s speech-based deportations of non-citizen students). In Trump v. Hawaii, the Supreme Court ruled that a facially neutral restriction on immigration could be upheld despite overwhelming evidence of unconstitutional discriminatory motive that would have led to the invalidation of a similar policy in almost any other context. That doctrine should be reconsidered. One can go further and note that federal power over immigration was the product of the similarly atextual and nonoriginalist Chinese Exclusion Case of 1889, which was also at in large part a product of racial bigotry.
Even if completely invalidating federal immigration restrictions entirely would be too great a break with precedent, federal courts would at least do well to rule that such restrictions are subject to the same individual rights and structural constraints as all other legislative powers. For example, they should be subject to the nondelegation doctrine; if so, Congress cannot grant the president the power to enact sweeping travel bans at his sole discretion, with little or no limitation.
In sum, Ramsey’s originalist critique of the Insular Cases, is compelling. The Supreme Court would do well to follow it. It also has significant potential implications for other areas of constitutional law.
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