[There are five territories of the US that are unincorporated,
meaning not expected to become states. Not all constitutional
protections apply to the people who live in those territories, but its
never been clear which ones do and which dont.]
CENTURY-OLD RACIST U.S. SUPREME COURT CASES STILL RULE OVER MILLIONS
October 5, 2021
_ There are five territories of the US that are unincorporated,
meaning not expected to become states. Not all constitutional
protections apply to the people who live in those territories, but
it's never been clear which ones do and which don't. _
In Old San Juan, Puerto Rico, the flags of the U.S. and its territory
fly side by side. , Spencer Platt/Getty Images
The 4 million inhabitants of five U.S. territories – Puerto Rico,
American Samoa, Northern Marianas Islands, Guam and the U.S. Virgin
Islands – do not have the full protection of the Constitution
because of a series of Supreme Court cases dating back to 1901 that
are based on archaic, often racist language and reasoning.
No U.S. citizen living in any of those places can vote for president.
They don’t have a voting representative in Congress, either.
But this inferiority is inconsistent. Puerto Ricans are American
citizens and can vote in federal elections if they reside in a U.S.
state – but not if they live in Puerto Rico
or one of the other territories.
However, American Samoans are not U.S. citizens
so they can’t vote for president even if they live in the 50 states.
That is being challenged in federal courts
It’s all a result of a political and legal mindset that is more than
100 years old, but is still in force.
Up until the end of the 19th century, everyone assumed that all U.S.
territories would, eventually, become full-fledged states, whose
residents would become U.S. citizens with rights fully protected by
the Constitution. The Northwest Ordinance of 1787 outlined the process
As new lands opened to Americans, Congress would initially appoint a
governor and judges for the territory and establish a rule of law.
When the territorial population exceeded 5,000 adult men, voters would
elect a legislature and send a nonvoting delegate to Congress. When
the territory reached a population of 60,000, the territory would
petition for statehood and be admitted to the union.
That process assumed the territories would be in North America, and
that most of the territorial population would be people of European
descent. Those assumptions changed when the United States claimed
Puerto Rico, the Philippines and Guam in 1898, as spoils of war at the
end of the Spanish-American War. Puerto Rico and Guam are still U.S.
That expansion gave Americans a clear sense of the nation’s purpose
and power in the world, summarized effectively by U.S. Sen. Albert
Beveridge of Indiana in a congressional speech on Jan. 9, 1900
“[God] has made us the master organizers of the world to establish
system where chaos reigns. He has made us adept in government that we
may administer government among the savage and servile peoples
A new type of territory
Starting in 1901, a set of court cases, collectively called the
“Insular Cases,” created new constitutional law regarding the
United States’ relation with its territories. They began when import
companies challenged tariffs imposed on goods transported from the
newly acquired territories into the U.S. The companies claimed there
should not be tariffs, because the goods were moving from one part of
the U.S. to another.
The Supreme Court ultimately ruled that the companies were correct
that transport within the U.S. was not subject to tariffs, but created
an exception, in which the new lands were neither foreign countries
nor part of the U.S.
Those territories, the Supreme Court would rule in the first of the
Insular Cases, Downes v. Bidwell
[[link removed]] in 1901, were
“foreign in a domestic sense
[[link removed]],” “inhabited by alien
races [[link removed]],” and therefore
governing them “according to Anglo-Saxon principles may for a time
be impossible [[link removed]].”
The ruling included other prejudice-revealing statements, too, such
as, “It is obvious that in the annexation of outlying and distant
[[link removed]] grave
questions will arise from differences of race, habits, laws, and
customs of the people, and from differences of soil, climate, and
production, which may require action on the part of Congress that
would be quite unnecessary in the annexation of contiguous territory
inhabited only by people of the same race, or by scattered bodies of
As a result, the court created a new distinction: “Incorporated”
territories of the U.S. were expected to one day become states.
“Unincorporated” territories, by contrast, were not – and,
therefore, their inhabitants were, and still are, denied some of their
A 2020 referendum
[[link removed](2020)] vote
in Puerto Rico favored statehood; Guam officials
have called for statehood; and Stacey Plaskett, who represents the
people of the U.S. Virgin Islands in Congress, says her constituents
deserve the full rights of citizenship
including the right to vote.
The cases and context
Both at the time and since, the Downes decision has been described as
meaning “the Constitution does not follow the flag
The territories might be ruled by Congress, but not necessarily by the
What that meant for the people of those territories was unclear. And
despite five other cases in 1901
and others in the subsequent 20 years, the Supreme Court has never
truly clarified which constitutional protections were available to
whom and which weren’t. It left open questions about whether key
elements of the Constitution, like trial by jury, or even the Bill of
Rights, were available in the unincorporated territories.
Hawaii was also acquired in 1898, but was treated differently and
ultimately became a state. The differences were probably for reasons
to do with partisan politics
and a Republican-Democratic balance in Congress.
[Two people stand next to a flag]
Two people from American Samoa who work for the territory’s
government made different choices about U.S. citizenship. Filipo
Ilaoa, at left, became a citizen; Bonnelley Pa'uulu remains a U.S.
national, without full citizenship rights and privileges. AP
Photo/Jennifer Sinco Kelleher
Supreme Court interpretation over the years
Since the mid-20th century, the court has made small incremental
to the Insular Cases’ effects, tweaking technical definitions
concerning taxes, trade and governmental benefits such as Social
Security, Medicaid and the Supplemental Nutrition Assistance Program.
But the court has not addressed the overall inferior constitutional
status of the territories and the people who live there.
It wasn’t until 1957, for instance, in Reid v. Covert
[[link removed]], that the
Supreme Court ruled that defendants in the territories had a right to
trial by jury – a right citizens have because of Article III of the
Several justices made clear that “neither the cases nor their
reasoning should be given any further expansion
[[link removed]].” That
statement was widely viewed as a signal that the influence of the
Insular Cases was declining
In Torres v. Puerto Rico
[[link removed]] (1979),
the court further weakened the Insular Cases. Although narrowly
applied to the territory at hand, the Supreme Court made clear that
the Bill of Rights actually did apply in a U.S. territory.
In its 2008 ruling in Boumediene v. Bush
[[link removed]], the
court held that detainees at the U.S. naval base in Guantánamo Bay,
Cuba, had the constitutional right of habeas corpus to challenge the
validity of their detention. Justice Anthony Kennedy’s opinion said,
“It may well be that over time the ties between the United States
and any of its territories strengthen in ways that are of
[[link removed]],” and said
the federal government did not “have the power to switch the
Constitution on or off at will.”
But in its 2020 ruling in Financial Oversight and Management Board for
Puerto Rico v. Aurelius Investment
the court pulled back from its trend of extending constitutional
protections to the unincorporated territories. It ruled that President
Barack Obama’s appointments to the board, a government body focused
on helping Puerto Rico return to financial stability, were local
officials, not “officers of the United States
and therefore did not require Senate confirmation.
[Four people march carrying a flag.]
Athletes from the U.S. Virgin Islands arrive at the Paralympics in
Tokyo in August 2021. AP Photo/Eugene Hoshiko
Into the future
Many legal scholars view
the court’s mention of U.S. territorial connections strengthening
“over time” as a possible key to overturning the Insular Cases.
The original distinctions assumed that the U.S. would “govern
temporarily territories with wholly dissimilar traditions and
[[link removed]].” Most
acknowledge those perceived distinctions clearly no longer exist.
These territories have established institutions and principles
grounded in American traditions. The internal governments of these
territories have established laws, governmental institutions and legal
traditions that are indistinguishable from any state in the union.
They hold elections, have residents serving in the U.S. military
and play a role in building the nation.
But without equal voting rights and congressional representation, the
Americans living in these territories cannot remedy their status at
the ballot box
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[[link removed]], Associate
Professor of Political Science and Legal Studies, _Suffolk University
This article is republished from The Conversation
[[link removed]] under a Creative Commons license. Read
the original article