Introduction to the Special Issue on the Law of the Territories.

Date01 June 2022
AuthorSommers, Rachel Valentina

The Yale Law Journal is thrilled to present a Special Issue on the Law of the Territories, which explores unresolved controversies and debates concerning the U.S. territories. In the pages that follow, our authors examine the complex and often-fraught relationship between the U.S. government and its territories. Their pieces discuss the implications of recently decided cases involving the territories, survey the vulnerabilities of longstanding territorial precedents, and propose alternative frameworks for understanding and litigating issues pertaining to the rights of territorial residents and the sovereignty of their governments.

Debates about these and various other topics relevant to the territories have often taken place in the courts. Indeed, the resurgence of litigation concerning the territories in the Supreme Court and the lower federal courts demonstrates the enduring relevance and importance of the law of the territories. This Term, the Supreme Court held in United States v. Vaello-Madero that the Constitution does not require Congress to grant Supplemental Security Income benefits to residents of Puerto Rico. In a concurring opinion, Justice Gorsuch called on the Court to overrule the Insular Cases, a series of early twentieth-century cases infamously holding that the Constitution does not fully apply to "unincorporated" territories. The petitioners in Fitisemanu v. United States have heeded his call to action. In their pending petition for a writ of certiorari, they ask the Court to decide whether persons born in the territories are entitled to birthright citizenship under the Fourteenth Amendment's Citizenship Clause - and whether the Court should overrule the Insular Cases once and for all.

Outside of courthouses and legislatures, debates concerning the territories have also taken place in the scholarly literature, including in the pages of the Journal. A century ago, those pages contributed to the development, dissemination, and popularization of racist notions of territorial subordination. The Supreme Court would later adopt those same notions to justify its holdings in the Insular Cases, demonstrating the important -and sometimes pernicious - role that legal scholarship can play in shaping legal and political realities. In publishing this Special Issue, the Journal hopes to begin the critical work of both recognizing its role in perpetuating damaging conceptions of the territories and uplifting scholarship that has the...

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