The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories.

• Author: Ponsa-Kraus, Christina Duffy
• Position: Special Issue on the Law of the Territories

ARTICLE CONTENTS INTRODUCTION 2452 I. THE INSULAR CASES REVISITED 2464 II. THE INSULAR CASES REVIVED 2474 III. THE INSULAR CASES REVVED UP 2482 A. Constitutional Exceptionalism Retooled 2485 B. Constitutional Exceptionalism Reinvented 2493 C. Constitutional Exceptionalism Remixed 2497 D. Constitutional Exceptionalism Refutes Itself 2504 E. Constitutional Exceptionalism at Bay 2507 IV. THE INSULAR CASES RUN AMOK 2512 V. THE INSULAR CASES UNRELENTING 2524 A. Aurelius: The Insular Cases as a "Dark Cloud" 2525 B. Vaello Madera: The Insular Cases Redux 2532 CONCLUSION: THE END OF THE INSULAR CASES 2538 INTRODUCTION

The Insular Cases have been enjoying an improbable - and unfortunate - renaissance. Decided at the height of what has been called the "imperialist" period in U.S. history, this series of Supreme Court decisions handed down in the early twentieth century infamously held that the former Spanish colonies annexed by the United States in 1898 -Puerto Rico, the Philippines, and Guam - "be-long[ed] to... but [were] not a part of the United States." (1) Although previous U.S. territories were "incorporated" into the United States upon annexation, these new ones had been annexed but not incorporated. (2)

What exactly this meant has been the subject of considerable debate even as those decisions have received widespread condemnation. (3) According to the standard account, the Insular Cases held that the entire Constitution applies within the United States - defined as the states, the District of Columbia, and the incorporated territories -while only its fundamental limitations (4) apply in what came to be known as the "unincorporated" territories. According to an alternative account (to which I subscribe), the Insular Cases did not carve out a largely extraconstitutional zone of territory subject to formal, internationally recognized U.S. sovereignty where none of the Constitution applies except for certain fundamental limitations. Instead, when it comes to which constitutional provisions apply where, the Insular Cases stand for a more modest twofold proposition. First, provisions defining their geographic scope with the phrase "United States" may or may not include unincorporated territories. Second, either way, fundamental limitations certainly apply within unincorporated territories, though what counts as "fundamental" may vary from one unincorporated territory to the next. (5)

Although what it means to be "unincorporated" remains contested to this day, every account of the Insular Cases agrees that they also stand for a considerably less modest proposition: that the federal government has the power to keep and govern territories indefinitely, without ever admitting them into statehood (or deannexing them, for that matter). (6) Before 1898, territories annexed by the United States were presumed to be on a path to statehood. (7) However, the annexation in 1898 of three territories populated largely by nonwhite people gave rise to a public debate over whether the United States, for the first time in its history, could continue to hold a territory indefinitely without eventually admitting it as a state. (8) The Court found a way. It simply invented, out of whole cloth, the distinction between incorporated territories, which were on their way to statehood, and unincorporated territories, which might never become states, and placed these newly annexed territories in the latter category. (9) The distinction between incorporated and unincorporated territories thus served as the cornerstone of a racially motivated imperialist legal doctrine (10): the idea of the unincorporated territory gave sanction to indefinite colonial rule over majority-nonwhite populations at the margins of the American empire. (11)

Since the Founding, territories had been subject to U.S. sovereignty but denied federal representation. The political illegitimacy of unrepresentative federal rule over their inhabitants had been justified by the shared understanding, confirmed by consistent practice, that territorial status was a temporary necessity that would end when a territory became a state. (12) But by giving constitutional sanction to the new and subordinate category of unincorporated territories, which might never become states, the Insular Cases raised the possibility that the United States could, if it so desired, govern unincorporated territories indefinitely despite the fact that their residents had neither representation in the federal government nor the assurance that such representation would be forthcoming upon their territory's eventual admission as a state. After the Insular Cases, that possibility became a reality that has persisted for nearly 125 years.

The unincorporated territory was a judicial innovation designed for the purpose of squaring the Constitution's commitment to representative democracy with the Court's implicit conviction that nonwhite people from unfamiliar cultures were ill-suited to participate in a majority-white, Anglo-Saxon polity. (13) With the creation of the unincorporated territory, the Court implicitly embraced the view that the theory of political legitimacy underlying the Constitution allowed for an exception, born of practical necessity and motivated by racism, permitting a representative democracy to govern people deemed inferior indefinitely without representation. The raison d'etre of the Insular Cases was, therefore, to provide the constitutional foundation for perpetual American colonies.

But recent efforts to "repurpose" the Insular Cases have breathed new life into those reviled decisions. (14) Adopting the standard account of the Insular Cases, according to which they created a nearly extraconstitutional zone for the unincorporated territories, proponents of repurposing argue that precisely because the Insular Cases swept aside most constitutional restraints upon government action in those territories, they now -counter-intuitively-hold the key to the survival of the unique and diverse cultures of these places: today, Puerto Rico, Guam, the U.S. Virgin Islands, the Northern Mariana Islands (NMI), and American Samoa. (15)

These territories, all unincorporated, remain subject to US sovereignty, and overwhelming majorities of their populations apparently want to keep it that way. (16) At the same time, several of them have certain traditional cultural practices that could be in tension or outright conflict with the U.S. Constitution. (17) The practices at issue include, for example, racial restrictions on the alienation of land in the Pacific U.S. territories, which are meant to protect native land ownership where land is scarce and central to cultural identity. (18) Ordinarily -in what most people think of as the United States - racial restrictions on the alienation of land would clearly violate the Equal Protection Clause. (19) But here the repurposed Insular Cases come into play. If, as the standard account has it, these decisions relegated the unincorporated territories to a nearly extraconstitutional zone, then the Constitution does not stand in the way of territorial cultural practices deserving of protection. Or so the argument goes.

A recent Harvard Law Review Special Issue features several contributions explaining the repurposing view and arguing that it might offer the best way to protect the distinctive cultures of the unincorporated territories. (20) As one of them explains, "[w]here the doctrine [of the Insular Cases] once served colonial interests in an era of mainland domination of the territories, a revisionist argument would see it repurposed today to protect indigenous cultures from a procrustean application of the federal Constitution." (21) Another advocate of the re-purposing project argues that judicial adoption of the repurposing view is "defensible and perhaps even necessary" in order to protect culture and promote self-government in the U.S. territories. (22) An early defender of repurposing, Stanley Laughlin, sums up the argument like this:

The genius of the [doctrine of the Insular Cases] is that it allows the insular areas to be full-fledged parts of the United States but, at the same time, recognizes that their cultures are substantially different from those of the mainland United States and allows some latitude in constitutional interpretation for the purpose of accommodating those cultures. (23) As these quotations make clear, the repurposing project aims to achieve not one but two interrelated goals: cultural accommodation and continued U.S. sovereignty. That is, if the sole goal were the protection of culture, then separation from the United States through independence would render irrelevant any tension with the U.S. Constitution and no repurposing would be necessary. But since support for independence in the territories is minimal at best, it becomes necessary to reconcile the cultural practices at issue with the U.S. Constitution. Enter the standard account of the Insular Cases, providing support for the idea that constitutional obstacles can be swept aside in the unincorporated territories.

This Article makes the case against the repurposing project. (24) My argument is that the Insular Cases gave rise to nothing less than a crisis of political legitimacy in the unincorporated territories and that no amount of repurposing, no matter how well-intentioned-or even successful - can change that fact. On the contrary: repurposing the Insular Cases will prolong the crisis.

The felt imperative to derail the recently annexed territories from the statehood track, while still permitting the United States to retain them, drove the Court to abandon a settled understanding that otherwise would have constrained it: that annexed territories would eventually become states. The famously unclear and erroneous reasoning of the Insular Cases is famously unclear and erroneous precisely because it simply could not be reconciled with that settled understanding. To...