In her bi-weekly column, “State of the Territory,” former Sen. Janelle K. Sarauw delves deeper into issues of concern for V.I. residents.
The Insular Cases encompassed a series of pivotal decisions rendered by the United States Supreme Court in the early 20th century addressing the constitutional status of U.S. Territories acquired by the U.S. following the Spanish-American War and the Philippine-American War. These landmark rulings played a crucial role in shaping the legal framework governing these newly acquired lands, thereby influencing the relationship between the U.S. Constitution and its applicability in these U.S. Territories.
One seminal decision within the Insular Cases is Downes v. Bidwell (1901), wherein the Supreme Court articulated that the Constitution did not automatically extend to U.S. Territories newly annexed by the U.S. The court introduced the concept of “unincorporated U.S. Territories,” where only fundamental constitutional rights applied, distinguishing them from “incorporated U.S. Territories ” where the Constitution had complete applicability.
In the subsequent case, DeLima v. Bidwell (1901), reinforced the notion that constitutional rights did not inherently extend to the recently acquired U.S. Territories thus, emphasizing Congress’s authority to determine the applicability of constitutional provisions. Further solidifying the legal landscape, Balzac v. Porto Rico (1922) affirmed the distinction between incorporated and unincorporated U.S. Territories. The court ruled that residents of unincorporated U.S. Territories did not possess the full constitutional rights guaranteed to U.S. citizens.
As per the American Civil Liberties Union, the Insular cases are unequivocally characterized as being “unabashedly racist, firmly rooted in white supremacy.” In 2021, Representative Plaskett eloquently expressed this sentiment in her testimony before the Committee on Natural Resources.
“What irony that the Supreme Court in the 1900s stated that Virgin Islanders such as D. Hamilton Jackson, journalist; Edward Wilmot Blyden, the founder of Pan Africanism; Hubert Harrison, one of the founders of the negro renaissance in Harlem; Camille Pissarro, the founder of impressionism; and Alexander Hamilton cannot understand Anglo-Saxon principles or indeed the Constitution. The irony is profound. It comes as no surprise that one of the most influential of these cases, Downes v. Bidwell, was decided by the same Justices who invented the separate but equal doctrine of racial segregation in Plessy v. Ferguson just three years earlier. But the legal basis established by Plessy was reversed in Brown v. Board of Education in 1954 as the Court recognized that the nation could not operate in a supposed separate but equal category, which in reality was separate and unequal. While the discriminatory precedent set by the Insular Cases continues to affect 3.5 million Americans, the Supreme Court has yet to revisit this precedent. Furthermore, the past three administrations–Trump, before that the Obama administration, before that the Bush administration–have reaffirmed this position. I call upon the Biden administration to chart a new course, reject the Supreme Court decisions in the Insular Cases and recognize the importance of supporting equal rights of Americans living in the U.S. Territories (H. Res. 279, 2021).”
In these series of cases adjudicated between 1901 and 1922, the court referred to the residents of the U.S. Territories as “alien races” and “savage tribes,” grounding these characterizations in the presumed racial inferiority attributed to the non-white inhabitants. Through this stance, the Supreme Court overtly displayed disdain for the predominantly Asian, Black, Indigenous, Latino, and Pacific Islander communities residing in these U.S. Territories.
Undoubtedly, these landmark decisions collectively established a legal paradigm enabling Congress to govern U.S. Territories differently from incorporated states, allowing for the selective extension or withholding of specific constitutional rights. In essence, the persistent discrimination faced by Americans in the U.S. Territories within federal benefit programs is intricately linked to the detrimental legacy left by the Insular Cases. These cases established a precedent and a quasi-permanent colonial status. Criticized for creating a tiered system of citizenship, the Insular Cases continue to raise questions about the constitutional protections afforded to residents in U.S. Territories such as Puerto Rico, Guam, and the U.S. Virgin Islands.
Despite fervent criticism from voices like the American Civil Liberties Union, Equally American, now the Right to Democracy and Representative Plaskett, the Supreme Court’s decisions in these cases have stood the test of time. Notably, the discriminatory precedent established by the Insular Cases has persisted through successive administrations, including those of Presidents Bush, Obama, Trump and now Biden. The perpetuation of this legal paradigm underscores the need for a reevaluation of these decisions and a reconsideration of the unequal treatment of Americans residing in U.S. Territories. Until a new course is charted, the legacy of the Insular Cases will continue to cast a shadow on the constitutional protections afforded to the diverse communities residing in U.S. Territories, echoing the need for a transformative approach to ensure justice and equality for all.
