Inconvenient Suits: Foreign in a Domestic Sense

In the second installment of his series unpacking Supreme Court Cases that reveal unsavory truths about our country and how the legal interpretation of its founding principles have evolved throughout the centuries, Bryan explores how America continues to abide by baldly racist, imperialist court decisions delivered in the wake of the Spanish-American War.

Would it surprise you to learn that the United States is an empire? Yes, America’s foundation as colonies and subsequent westward expansion was conducted very much in the vein of settler imperialism, and of course America has leveraged its influence and wealth in forms of indirect empire for much of the last century, but that’s not what I’m talking about here. The United States is, at this very moment, a territorial empire through its possession of the unincorporated territories of American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the US Virgin Islands. More than a century after the acquisition of four of the five in the Spanish-American War in 1898 (the Northern Marianas were taken from Japan after the Second World War), these islands remain without a clear path to statehood and their inhabitants lack many of the civil rights we consider inherent to living within the supposedly-democratic United States. How can this still be the case?

The status of many of America’s island possessions were decided only three years after the Spanish-American War in a group of Supreme Court decisions that have since become known as the “Insular Cases.” As the country struggled to come to terms with its new role on the global stage and whether the founding principles of the republic condemned or condoned becoming an empire, more practical considerations took over the discussion: if Puerto Rico now belonged to the United States, why should merchants still be paying import duties on its products? A good question, with a seemingly obvious answer. It’s not like the country had no experience dealing with non-state territory; most of the continental US began as such, and the Constitution outlines a clear process through which such territories can gain statehood and enter the union on equal footing. Yet these new possessions were not connected to the mainland and, more importantly, were filled with non-white, non-Protestant peoples. In the 5-4 decision De Lima v. Bidwell, the Court declared that the new territories were indeed no longer subject to foreign tariffs, but in the associated Downes v. Bidwell (also 5-4, and decided along with De Lima and four other cases on the same day) made clear that this did not mean that duties had to conform with the levels of formal states and territories. Instead, the Court defined the new territories as “unincorporated,” as opposed to previous “incorporated” ones, explaining that an unincorporated territory is “foreign in a domestic sense,” not properly part of the country for purposes of revenue and administration, and even though basic rights to liberty and property (though not suffrage, tellingly, and others are decided on a case by case basis) “cannot be under any circumstances transcended,” unfortunately the islands being “inhabited by alien races, governing them according to Anglo-Saxon principles may be for a time impossible.”

This was a revolutionary re-interpretation of territorial law, but admittedly not without some logic behind it. According to the Constitution, Congress has the right to make all necessary rules and regulations for the territories it governs, and once a territory exceeds 60,000 inhabitants, it may petition Congress for statehood. Previously, the accompanying Act of Congress allowing for the formation of a government, constitution, and subsequent formal statehood was considered a formality, but nothing in the Constitution says Congress must accept that petition. The Insular Cases thus gave an out for denying such petitions and holding territories in a perpetual state of semi-Constitutional limbo as well as neatly sidestepping the issue of territories that might never reach the requisite population levels–without providing any time limit for independence or de-annexation, either. It is hard to think of a more succinct summation of imperialism than the legal reality established in these cases. Now, in 2024, while the inhabitants of these five island possessions are considered US citizens, they do not have more than honorary representation in government and no representation at all in the Electoral College. An American national with permanent residence in a foreign country can vote in a presidential election, yet citizens living under the control and governance of the United States itself cannot.

Ironically, this state of affairs (which some lawyers have rightly called a “crisis of political legitimacy”) has remained largely unchallenged in any formal way over the past century. While Hawai’i joined the union as its 50th state in 1959, only Puerto Rico out of the current unincorporated territories has ever voted in favor of statehood, and that with a razor-thin margin. Inhabitants of the Pacific Islands serve in the military at rates far higher than mainland citizens, yet there has never been any serious drive for statehood due to a combination of economic and cultural factors. Indeed, some have even attempted to re-purpose the Insular Cases in recent years in favor of keeping American Samoa as separate from the US government as possible and thus protect indigenous land from alienation–a damning commentary on our treatment of native tribes in its own right. The modern Supreme Court does not seem inclined to help, either. Despite comments from justices of all political stripes that the Insular Cases are racist, shameful, and have no place in modern jurisprudence, the Court has declined to hear cases related to them or revise them as recently as 2023. Most lawyers never even learned about them in law school.

This is admittedly an incredibly complicated situation without any clear or easy answer. It seems obvious that in order to fulfill the promise of its founding principles and live up to its democratic pretensions, America needs to get rid of this practice of administering territories as semi-Constitutional zones on the basis of a racist, exclusionary judicial opinion from over one hundred years ago. Yet forcing full citizenship and statehood, with all the obligations they entail, on peoples that do not want them feels uncomfortably close to the imperialism that got us into this mess in the first place. I personally think the best solution would be to pursue concurrent policies that are more respectful of traditional societies and respect indigenous rights wherever possible alongside formal statehood, but that may very well be a pipe dream in the current political climate. At least some efforts are being made to bring more awareness to these seminal decisions, whether in prestigious law schools, late night programs, or just on small private blogs like this one. It’s better than nothing.

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