AuthorCiolli, Anthony M.

Not surprisingly, most analyses of the constitutional status of United States territories focus on the powers of Congress under the Territorial Clause as well as the distinctions between so-called incorporated and unincorporated territories under the framework established by the Supreme Court of the United States in the Insular Cases. (1) But many of the most egregious examples of the people of the territories being treated as second-class citizens--such as their complete disenfranchisement in presidential and congressional elections--are not due to the Insular Cases or judicial expansion of the Territorial Clause. Rather, they stem from a seemingly more convincing authority: provisions in Article I and Article II of the Constitution that explicitly grant such rights to the "states" without mentioning the territories. (2)

It is commonsensical that the words state and states as used in the United States Constitution must refer solely to the states of the Union. But defining a state as a state "is completely circular and explains nothing." (3) Yet it does not appear that any court has attempted to ascertain the constitutional meaning of state without engaging in this sort of circular reasoning. In effect, what is a state for purposes of the United States Constitution has a "[you] know it when [you] see it" (4) quality - a precise definition is not needed because there is no doubt in our minds that New York, Alabama, and Wyoming are states, but Puerto Rico, Guam, and the U.S. Virgin Islands are not.

One would naturally assume, then, that the word state, as used in the United States Constitution, is consistently applied. Thus, if the U.S. Virgin Islands is not constitutionally entitled to a minimum of one voting Representative and two Senators because Article I only grants such representatives to a "[s]tate" and the U.S. Virgin Islands is not a "state," then one would also expect the U.S. Virgin Islands to also not be a "state" for other parts of the Constitution. (5)

Yet that is not the case. The federal courts have consistently relied on the plain text of the United States Constitution--namely, that a territory is not a state--to withhold suffrage and other basic human rights. (6) But they have not taken a similar approach with respect to the provisions of the Constitution that limit the powers of the states but say nothing of the territories. Rather, the federal courts have taken a cavalier attitude to the constitutional meaning of state, and through a series of ad hoc decisions have established a regime in which the territories are not states with respect to political representation and the constitutional benefits of statehood but somehow are states with respect to the burdens.

This Essay seeks to draw attention to this surprising practice. Part I briefly summarizes the various theories of constitutional interpretation that fall under the umbrella of originalism, and in particular the idea that words in the United States Constitution should be applied both consistently and under neutral principles. Part II provides a short overview of the constitutional status of United States territories and how that status developed through the results-oriented reasoning of the Insular Cases that is antithetical to the principles of originalism. With this context in mind, Part III examines more recent situations where federal courts have had to determine whether a territory or other entity is a state for purposes of the United States Constitution. Rather than coalesce around a consistent meaning of the word state, the federal courts have taken a results-oriented approach that bears striking resemblance to the Insular Cases in which a territory is not a state when treating it as such would grant the territory greater rights vis-a-vis the federal government but is a state when such treatment enhances federal control over territorial affairs.


    Antonin Scalia once famously described himself as a "faint-hearted originalist," stating, for example, that he "cannot imagine... upholding a statute that imposes the punishment of flogging" even if that outcome was dictated by the original meaning of the United States Constitution. (7) Later in life Justice Scalia would "repudiate" his own characterization of his views and divulge that "if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional." (8) Nevertheless, despite his advancement of originalism being perhaps his most lasting legacy--to the point where "academic theorists are all originalists" and theories of "'Living Originalism[]'" may have displaced the "'[l]iving [c]onstitution[]'" (9)--even Justice Scalia joined opinions which at times established legal rules in irreconcilable conflict with the plain text of the Constitution. (10)

    Justice Scalia's occasional infidelity to originalism is certainly not surprising. After all, "constitutional law frequently develops in a common law-like way" such "that in many cases the language of the Constitution ceases to drive judicial decisions, even though the courts insist on linking their results to the constitutional text." (11) As a result, "American constitutional law 'contradicts' the text of the Constitution more often than one might think" to the point where there are obvious instances where the plain text is "more or less systematically ignored" by judges and lawyers of all philosophical persuasions, "like the fact that the First Amendment begins with 'Congress.'" (12)

    Not surprisingly, other varieties of originalism--such as original intent or original understanding--have developed to allow for consideration of ratifying debates and other extraconstitutional materials to attempt to justify or explain away such obvious departures from plain text. Thus, while the First Amendment states that "Congress shall make no law[,]" its application to the other two branches of the federal government has been justified in various ways, such as by asserting that the drafters intended for "Congress" to be synonymous with "federal government" or that the rights safeguarded by the First Amendment are wholly subsumed in the Due Process Clause of the Fifth Amendment, which is not confined solely to Congress. (13) These rationales have certainly been criticized as post hoc justifications for not upsetting more than a century of case law that extended the First Amendment to cover the actions of the President and the federal courts without any meaningful textual analysis. (14)

    It appears--judging from the absence of law review articles and judicial opinions calling for a return to the "real" First Amendment--that most originalists are comfortable with this approach. But what is certainly clear is that this approach is largely geared towards rehabilitating prior case law, and that contemporary courts considering new questions should not simply overlook or dismiss the text of the Constitution. Simply put, the text of the Constitution serves as the neutral principle through which courts arrive at principled constitutional interpretations. (15) And as a neutral principle, we must strive to ensure that the text is interpreted consistently. To hold otherwise would render constitutional interpretation a results-oriented enterprise with judges being largely indistinguishable from lawmakers.


    United States territories have long posed a problem for originalism. For more than a century, the relationship between the United States and its overseas territories has been governed by a series of decisions collectively known as the Insular Cases. In the Insular Cases, the Supreme Court of the United States relied on now-discredited theories of racial inequality and the white man's burden to interpret the Territorial Clause of the United States Constitution as permitting Congress to treat the "savage," "half-civilized," "ignorant and lawless" "alien races" inhabiting America's territories in the Caribbean Sea and the Pacific Ocean differently than white Americans in the states and mainland territories. (16) To do so, the United States Supreme Court invented the doctrine of territorial incorporation to draw distinctions between "incorporated" and "unincorporated" territories, (17) despite there being absolutely no textual, historical, or jurisprudential basis for doing so. (18)

    But the results-oriented treatment of the territories by the federal courts predates the Insular Cases. While the case of Dred Scott v. Sandford (19) is infamous for its ultimate holding and as one of the events that led to the Civil War, an often-overlooked aspect of the decision is its analysis of the relationship between Congress and United States territories, (20) effectively laying the doctrinal foundation for the Insular Cases. In fact, the first of the Insular Cases expressly cited Dred Scott to support the proposition that Congress possesses a general legislative power over the territories. (21) As one contemporary scholar put it, "[t]he Dred Scott case was sound in principle. When the tumult of anger and outrage, engendered by the slavery question had passed away, and judges were confronted with the principles announced by that decision, they did not disregard it." (22)

    It is no secret that today Dred Scott is almost universally viewed as one of the worst decisions of the United States Supreme Court, due in large part to it ignoring the plain text of the Constitution, the intent of the Founders, and decades of precedent in order to, in effect, extend slavery throughout the United States. (23) As one federal judge put it, the Insular Cases are "a strict constructionist's worst nightmare." (24) Consistent with the legal profession's evolving views on race, the reasoning of the Insular Cases has been repudiated by all corners of the legal community, to the point where they have been described as having "nary a friend in the world." (25) And while it...

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