Insular Cases

AuthorDennis J. Mahoney
Pages1375-1376

Page 1375

Originally applied to three cases decided in 1901, the term "insular cases" has come to denominate a series of cases decided in the early twentieth century defining the place of overseas TERRITORIES in the American constitutional system. Following the acquisition of PUERTO RICO, the Philippines, Hawaii, and various other island possessions, the Supreme Court was called upon to decide whether, or to what extent, in William Jennings Bryan's phrase, "the Constitution

Page 1376

follows the flag." From the insular cases emerged the DOCTRINE of INCORPORATION OF TERRITORIES.

The first three insular cases (DeLima v. Bidwell, Dooley v. United States, Downes v. Bidwell) were argued together and decided in 1901. They raised the question whether Puerto Rico was part of the United States within the meaning of the "uniformity clause" for purposes of levying customs duties. In DeLima and Dooley, the Court held that from the Treaty of Paris (1899), by which Spain ceded Puerto Rico to the United States, until the Foraker Act (1900), by which Congress organized the territorial government, the collection of duties on goods moving between the United States and Puerto Rico was unconstitutional. In the far more important Downes case, the court upheld collection of duties after passage of the Foraker Act. The apparent meaning of the three cases was that the constitutional status of overseas possessions is for Congress to determine, but constitutional protection is to be assumed in the absence of congressional action. The Justices divided into three schools of thought: four Justices, led by Chief Justice MELVILLE W. FULLER and Justice JOHN MARSHALL HARLAN, contended that the Constitution applied automatically and completely to any territory under United States SOVEREIGNTY; Justice HENRY B. BROWN, who wrote the lead opinion in all three cases, believed that Congress, under Article IV, section 3, enjoyed plenary power over the territories and could extend to them all, any part, or none of the Constitution, at its discretion; and four Justices, led by Justice EDWARD D. WHITE, argued that the Constitution applied fully to the territories only after positive action by the Congress to incorporate them into the United States.

In 1903 and 1904 the Court decided four cases dealing with CRIMINAL PROCEDURE in Hawaii, Puerto Rico, and the Philippines (Hawaii v. Mankichi, Crowley v. United States, Kepner v. United States, Dorr v. United States)...

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