SYMHC Classics: Insular Cases

This 2023 episode covers the Insular Cases, which are SCOTUS cases regarding rights of people in U. S. territories. See omnystudio.com/listener https://omnystudio.com/listener for privacy information.

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

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• 0:05Speaker 01

  In military families, service is more than a job. It's a legacy. At American Military University, that legacy can help open new doors through education. If someone in your family served in the military, you could be eligible for reduced tuition. Take the next step with flexible online programs built for real life. Learn more at amu.apus.edu/military.

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• 1:01Holly Frey?

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• 2:04Tracy V. Wilson?

  Happy Saturday. Coming up on the show, we have an episode about citizenship in the US and who is allowed to become a citizen. That has some connections to our August 14th, 2023, episode on the Insular Cases, which was a set of Supreme Court cases related to island territories claimed by the US. And that is today's Saturday classic. In this episode, we mention the case of Isabel Gonzalez. And I mentioned, wishing I had focused the whole episode on her case before the Supreme Court. We did do that episode not long after this, when it came out on September 20th, 2023. And this episode also briefly mentions the Philippines becoming independent from the US after World War II.

• 2:47Tracy V. Wilson?

  And we talked about that more in our episode on Marie Arrosa on May 8th, 2024. Enjoy.

• 2:55Holly Frey?

  Welcome to Stuff You Missed in History Class, a production of iHeartRadio.

• 3:06Tracy V. Wilson?

  Hello and welcome to the podcast. I'm Tracy V. Wilson.

• 3:09Holly Frey?

  And I'm Holly Frey.

• 3:11Tracy V. Wilson?

  Today, we're going to talk about some US Supreme Court cases, although not comical ones like Nix versus Hedin, which we covered recently and was about tomatoes. We are going to be talking more about tariffs, though. This time, it's a collection of cases that followed the Spanish-American War. And these cases together limited the rights of people living in certain US territories. These cases still stand today. They still affect the lives and civil rights of people in places like American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the US Virgin Islands. So people who were born in all of these territories,

• 3:52Tracy V. Wilson?

  with the exception of American Samoa, are considered US citizens by birth. But while living on any of these islands territories, they don't have the same constitutional rights or representation in Congress as citizens who live in one of the 50 states. Some of those court cases involved the Philippines also. That was a US territory at the time, but has since become independent. So together, these cases are known as the Insular Cases, with insular meaning related to islands. And they were in the news last year because the US Supreme Court declined to hear a case that was challenging them.

• 4:32Tracy V. Wilson?

  Before we start with this, I want to note, there's a whole range of opinion in all of these places about their relationships to the United States. Like, for example, there are American Samoans who think that they should be considered US citizens from birth, but then others who think that would erase their existing culture and traditions. Or as another example, there is a movement for Puerto Rican statehood that's been going on for decades. But there are also people who oppose that movement, with some of the opponents advocating instead for an independent Puerto Rico. So this episode is really focused on the court cases and the context around

• 5:13Tracy V. Wilson?

  them. It is not about the lived experiences and opinions of the people living in all of these territories. I don't think the two of us are the best people to try to embody that.

• 5:23Holly Frey?

  No. And even if we were, I feel like that is a podcast of its own and not an episode of ours.

• 5:30Tracy V. Wilson?

  Not an episode of ours, for sure.

• 5:32Holly Frey?

  Before we talk about these cases, we need to set the stage on how the US had approached its territories before the Spanish-American War. The original borders of the United States were set under the 1783 Treaty of Paris, which formally ended the Revolutionary War between Britain and its North American colonies. This treaty did not acknowledge the indigenous nations and peoples who had been in North America for thousands of years prior to Europeans' arrival, or contain any reference to borders of their own lands and territory.

• 6:05Tracy V. Wilson?

  For a time, the Articles of Confederation formed the basis for the US government. These were ultimately replaced by the US Constitution, which went into effect on March 4, 1789. The Constitution didn't include anything specifically about adding new territory to the United States, but it did include language about adding states. In Article 4, Section 3, quote, "New states may be admitted by the Congress into this union, but no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states or parts of states without the consent of the legislatures of the states

• 6:49Tracy V. Wilson?

  concerned, as well as of the Congress."

• 6:52Holly Frey?

  Section 3 also included language about territory that was not considered part of a state. "The Congress shall have power to dispose of and make all needful rules and regulations, respecting the territory or other property belonging to the United States, and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or any particular state."

• 7:17Tracy V. Wilson?

  Soon, new states were being added to the Union. The first state that wasn't one of the 13 original colonies was Vermont in 1791. Kentucky became a state in 1792 from land that had previously been considered part of Virginia. Tennessee became a state four years later, formed from the Southwest Territory, that was land that North Carolina had ceded to the federal government. Ohio joined the Union in 1803 and was formed from part of the Northwest Territory.

• 7:49Holly Frey?

  With the exception of Vermont, which had considered itself an independent republic before becoming a state, these newly added states had all been formed from organized incorporated territory that was already considered to be within the US borders under the Treaty of Paris. So incorporated, in this case, means that the territory is considered to be fully part of the US under the Constitution. And the only parts of the Constitution that don't apply to incorporated territory are articles that specifically apply to the states. Organized means that Congress had passed an organic act, or a body of laws, establishing a government and usually a bill of rights for the territory.

• 8:32Holly Frey?

  So, for example, the Northwest Territory was unorganized before Congress passed the Northwest Ordinances. The Northwest Ordinances of 1787 also outlined a process for the territory to be admitted into the Union as no less than three and no more than five states.

• 8:51Tracy V. Wilson?

  When the United States started acquiring new territory, that new territory was also incorporated. The first big addition of land to the United States was the Louisiana Purchase in 1803. The Treaty of Session that was part of the Louisiana Purchase Agreement said, quote, "The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all these rights, advantages, and immunities of citizens of the United States." Florida was also incorporated when it became part of the United States under the Adams-Onis Treaty, which took effect in 1821.

• 9:34Tracy V. Wilson?

  States formed from these territories were added to the Union following the same basic template that had been outlined in the Northwest Ordinance of 1787.

• 9:45Holly Frey?

  As the 19th century continued, the United States' approach to expansion was described as manifest destiny. That's a term first used in writing in 1845 as part of an argument that the United States should annex the Republic of Texas. This came to mean that the United States was destined to expand across the whole of North America. And this idea framed the United States' expansion as necessary and inevitable, and as the nation's duty. This also was connected to a series of removals, wars, and genocidal policies against the indigenous nations of North America, in which tens of thousands of people were forced to leave their homelands and move to land known as Indian Territory west of the Mississippi

• 10:30Holly Frey?

  River, primarily in what is now Oklahoma.

• 10:34Tracy V. Wilson?

  Support for the philosophy of manifest destiny was not as universal as it sometimes described. There were people within and outside of the US government who argued against such aggressive expansion. And there were people of a range of backgrounds, races, ethnicities, and religions who didn't want the place they were already living to be annexed or purchased by the United States for all kinds of reasons. Thousands of indigenous people also died as a result of the forced removals that were involved in making way for this expansion.

• 11:08Holly Frey?

  But the underlying assumption was that any territory the US was acquiring would become one or more states. Assumption is not even a strong enough word. It was obvious and unquestioned that newly acquired territory would be admitted into the Union as states. There were debates about whether slavery would be allowed in newly organized territory and newly admitted states, and a number of compromises and appeasements maintained a balance between slave states and free states in Congress. But there was really no debate about whether this new territory was on a path to statehood. There was no sense at all that a territory could be unincorporated.

• 11:49Tracy V. Wilson?

  The only real exception to this pattern involved the islands that were claimed under the Guano Islands Act of 1856. This act allowed US citizens to claim uninhabited islands as sources of guano, or bird poop. So these islands didn't need to be incorporated. They did not have a permanent human population. Alaska's status was also kind of vague for a while after the US purchased it from Russia in 1867. The US made this purchase just two years after the end of the Civil War. It was still in the middle of trying to rebuild itself, and Secretary of State William H. Seward's decision to buy Alaska was widely criticized and lampooned.

• 12:33Tracy V. Wilson?

  Alaska was organized as the District of Alaska in 1884.

• 12:38Holly Frey?

  But at the very end of the 19th century, the United States acquired territory that it didn't necessarily want to incorporate. And we're going to get to that after we have a sponsor break.

• 12:55Speaker 01

  In military families, service is more than a job. It's a legacy. At American Military University, that legacy can help open new doors through education. If someone in your family served in the military, you could be eligible for reduced tuition. Take the next step with flexible online programs built for real life. Learn more at amu.apus.edu/military.

• 13:18Speaker 05

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• 13:21Tracy V. Wilson?

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• 13:49Tracy V. Wilson?

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• 14:01Tracy V. Wilson?

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• 14:12Tracy V. Wilson?

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• 14:15Holly Frey?

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• 14:19Tracy V. Wilson?

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• 15:02Tracy V. Wilson?

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• 15:27Speaker 07

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• 16:01Tracy V. Wilson?

  The United States approached to its territories really shifted during and after the Spanish-American War. This war evolved from Cuba's struggle for independence from Spain, and it was also influenced by sensationalized news reporting in the United States and the explosion of the USS Maine in Havana Harbor on February 15, 1898. The Treaty of Paris that formally ended the Spanish-American War was signed on December 10, 1898. It recognized Cuba as an independent nation while giving the United States control of Puerto Rico and Guam. Under the treaty, the United States was also allowed to purchase the Philippines from Spain, which it did,

• 16:46Tracy V. Wilson?

  although the Philippines had declared its own independence and the US takeover of the Philippines sparked the two-year Philippine-American War. There are many treaties of Paris. This is obviously a different one than the one that formally ended the Revolutionary War.

• 17:01Holly Frey?

  Paris is where all the cool treaties happen.

• 17:03Tracy V. Wilson?

  Where we always go to negotiate a peace.

• 17:06Holly Frey?

  I mean. Yeah, any excuse to go to Paris. While the Spanish-American War was ongoing, the United States had also annexed Hawaii. For some very brief context on that, in 1875, the US and the Kingdom of Hawaii had signed a reciprocity treaty that allowed Hawaii to freely export goods like sugar to the US. In exchange, the US took control of an area known as Pu'u Loa, now home to the Pearl Harbor Naval Base. This treaty led to a huge explosion in the sugar industry in Hawaii, driven by US business interests, which made the Hawaiian economy increasingly dependent on these exports.

• 17:47Holly Frey?

  Then, in 1893, Sanford Dole, a lawyer who was born in Hawaii to American parents, led a committee of sugar planters and other American businessmen to overthrow the Hawaiian monarchy with the backing of the US military. Dole petitioned the US to annex Hawaii in 1894, and one reason the US did so four years later was to ensure that it did not lose control of Pearl Harbor while fighting a war with Spain.

• 18:15Tracy V. Wilson?

  That is like the most brief abridged synopsis, and we're about to have another one, because then, in 1899, the US took control of part of the Samoan Archipelago. Again, incredibly briefly. In the 19th century, Germany, Britain, and the US all established business interests in Samoa and became heavily involved in Samoan politics. Each of these nations backed different political factions, and when a civil war began in 1889, one side was backed by the US and the other was backed by Germany. The first phase of fighting ended in 1889, mostly because most of the Western powers'

• 18:58Tracy V. Wilson?

  ships were either damaged or destroyed in a cyclone. Violence resumed in 1893, continuing for about a year, again with Germany and the US backing opposing factions. Then, when Maritola Peppa, leader of Samoa, died in 1898, the Chief Justice

• 19:17Tracy V. Wilson?

  Who issued the decision on who his successor would be was an American citizen. So a lot of Samoans and Germans in Samoa opposed this decision. This led to renewed hostilities. Ultimately, Britain, the United States and Germany negotiated the tripartite convention without the involvement of Samoans. And this partitioned the archipelago between the United States and Germany. Just as a note, German Samoa was placed under control of New Zealand after World War I. It became independent in 1962. The US portion, still US territory.

• 19:56Holly Frey?

  So by 1899, the US had taken control of Puerto Rico, Guam, the Philippines, Hawaii, and part of Samoa. And it had a number of reasons to want access to territory in the Caribbean and the Pacific. Many of these islands had strategic military importance and could also serve as refueling points for trading ships. Investors saw a range of agricultural and commercial opportunities. This was also happening as the Panama Canal was being built, a project that the US took over just a few years after taking control of these new territories. So people were seeing new potential for international shipping.

• 20:36Tracy V. Wilson?

  There was also an argument for the US to take over these islands that was explicitly racist, that they were not capable of governing themselves, so the United States needed to take them over. An argument not to keep control of all of these islands was also racist. There were basically people who didn't want islands full of people who were predominantly indigenous or Hispanic to suddenly become US citizens. In some cases, religious prejudice was also a factor, since some of these areas were predominantly Catholic.

• 21:09Holly Frey?

  This can seem like an odd argument, considering that the US had already incorporated a lot of territory in North America that had previously been colonized by Spain and had some demographic similarities to these islands. Like, under the Treaty of Guadalupe Hidalgo that ended the Mexican-American War in 1848, Mexico ceded more than half its territory to the US. People living there had been given a year to decide if they wanted to become US citizens, and by the time the Spanish-American War ended, multiple states had been formed from that territory.

• 21:44Tracy V. Wilson?

  But, as an example, when California became a state in 1850, formed from territory that had been part of Mexico, it had a population of about 92,000 people. Meanwhile, at the end of the Spanish-American War, the population of Puerto Rico was more than 10 times that, and there were roughly 7 million people living in the Philippines. The entire United States population at this point was about 76 million people, so there were a lot of people who just completely freaked out about the idea that if the Philippines became a state, Filipinos would make up almost 10% of the population of the United States.

• 22:25Tracy V. Wilson?

  Also, with the exception of Puerto Rico, these newly acquired islands were geographically very far from continental North America, and that added to the perception that they were more foreign than something like the southwestern part of the continent was.

• 22:41Holly Frey?

  Also, to be clear, we're not suggesting that racism and prejudice were directed only at the people in these newly acquired island territories, or that everyone living in the continental US had the same constitutional rights at this point. As examples, after the US Civil War, the 14th Amendment had granted citizenship to anyone born or naturalized in the United States and subject to US jurisdiction, and the 15th Amendment had given black men the right to vote. But in practice, many black men could not freely exercise their right to vote, and women did not have a constitutional right to vote at all. Native Americans were not. Not considered US citizens and immigrants from many Asian countries were banned from becoming citizens.

• 23:25Holly Frey?

  So the idea that the US might apply constitutional rights and protections only to some people also was not at all new. What was new was the idea that the US could acquire territory without that territory ultimately becoming a state.

• 23:41Tracy V. Wilson?

  That is where we get to these Supreme Court cases. On May 27th, 1901, the US Supreme Court issued its decision in six cases that had all been argued over the course of 1901. Most of these were related to Puerto Rico. There was also one case relating to Hawaii and one related to the Philippines. Some constitutional law scholars frame these six decisions as the core insular cases. There are others who include two other cases that were decided in December of that same year. There are others who include a lot more cases that were decided over the next two decades for up to a total of 35 cases.

• 24:23Tracy V. Wilson?

  So like the argument over which cases are the insular cases can really vary depending on whose opinions you're reading.

• 24:30Holly Frey?

  The idea that at least some of these cases would be grouped together as the insular cases was there right from the beginning. Some of the court's opinions collectively refer to the insular tariff cases. In February of 1901, after the cases had been argued but before they were decided, the House of Representatives passed a resolution calling for the briefs and arguments from five of the cases to be printed together as a book called The Insular Cases. That book is 1,075 pages long, a little light reading.

• 25:03Tracy V. Wilson?

  Yeah, clearly, we're not going to be talking about all of these cases in detail. To quickly tick through these 1901 cases, that's not just the first six, it's the other two as well. One outlier was Husk versus New York and Puerto Rico Steamship Company. This looked at the question of whether Puerto Rican ports were domestic or foreign ports in the context of US shipping law and New York laws around the pilotage of nautical vessels. Most of the other cases addressed the core question of whether Puerto Rico, Hawaii, or the Philippines should be considered a foreign country in terms of tariff law. These cases were De Lima versus Bidwell,

• 25:46Tracy V. Wilson?

  Gutzza versus United States, Armstrong versus United States, two different cases called Dooley versus United States, and 14 diamond rings versus United States.

• 25:58Holly Frey?

  These cases all involved similar scenarios. A person or business had been required to pay a duty or had something seized by customs, but they argued that no duties or fees should have been required or customs should not have seized the goods since the goods had not come from a foreign country. The court issued decisions in these cases establishing that none of these places were foreign countries in the context of tariff law, unless the duty had been imposed before the United States annexed them.

• 26:29Tracy V. Wilson?

  The last of these 1901 cases, not in terms of time decided, just in terms of us talking about them, was Downs versus Bidwell, and that looked at whether parts of the Foraker Act were constitutional. The Foraker Act, also called the Puerto Rico Organic Act, had been passed in April of 1900. Among its many provisions, the Foraker Act established a 15% tariff on goods that were imported into Puerto Rico from the United States and vice versa. But Article 1, Section 8, Clause 1 of the U.S. Constitution, known as the Uniformity Clause, requires that, quote, "All duties, imports,

• 27:12Tracy V. Wilson?

  and excises shall be uniform throughout the United States." So if "throughout the United States" included Puerto Rico, it was unconstitutional for it to have this separate tariff. The Supreme Court's plurality decision was that, no, the Foraker Act was not unconstitutional because while Puerto Rico belonged to the United States, it was not part of the United States.

• 27:41Holly Frey?

  Of all these cases, De Lima versus Bidwell and Downs versus Bidwell have gotten the most attention in terms of study and analysis. And Downs versus Bidwell in particular has become notorious for its racist language. We're going to get into more on that after a sponsor break.

• 28:02Speaker 01

  In military families, service is more than a job. It's a legacy. At American Military University, that legacy can help open new doors through education. If someone in your family served in the military, you could be eligible for reduced tuition. Take the next step with flexible online programs built for real life. Learn more at amu.apus.edu/military.

• 28:27Speaker 07

  Live Right, publishers of John U. Bacon's New York Times bestseller, The Gales of November, a chronicle of the S.S. Edmund Fitzgerald's 1975 shipwreck. "Never has it been told better than by Mr. Bacon in this colorful book," writes John J. Miller of The Wall Street Journal, while author Hampton Seitz proclaims that it's destined to be a classic. The Gales of November, now in paperback.

• 28:56Holly Frey?

  We've all done it, tumble down an internet rabbit hole trying to self-diagnose. And sometimes doing our own research can leave us more anxious than informed. Your feed is packed with wellness trends telling you to cold plunge, protein max, detox, track your sleep. But what's actually real? What's exaggerated? What's just wrong? That's exactly what Health vs. Hype from the American Medical Association and iHeartMedia's Ruby Studio is here to find out. Each episode, Emmy-nominated science communicator Trace Dominguez, who's racked up billions of views across PBS, Discovery Channel, and YouTube, talks to doctors, influencers, and real people trying these trends.

• 29:38Holly Frey?

  Not to cancel them, not to hype them more, but to actually understand them. Because when it comes to your health, who you listen to matters. Start asking better questions and listen to Health vs. Hype on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.

• 29:59Tracy V. Wilson?

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• 30:44Tracy V. Wilson?

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• 31:04Tracy V. Wilson?

  As we noted before the break, in 1901, the US Supreme Court issued a decision in Downs versus Spidwell that described Puerto Rico as belonging to the United States, but not part of it. Downs versus Spidwell also established a distinction between incorporated and unincorporated territory. As we talked about in the first part of this shit, like, this was a new idea. This was not how the United States had been doing it before. In the words of a concurring opinion by Justice Horace Gray, quote, "So long as Congress has not incorporated the territory into the United States, neither military occupation nor cession by treaty makes the conquered territory

• 31:47Tracy V. Wilson?

  domestic territory in the sense of the revenue laws. But those laws concerning foreign countries remain applicable to the conquered territory until changed by Congress. If Congress is not ready to construct a complete government for the conquered territory, it may establish a temporary government which is not subject to all the restrictions of the Constitution."

• 32:10Holly Frey?

  That doesn't sound like a fat loophole at all. In other words, Puerto Rico and by extension, the other island territories were not foreign countries in terms of tariff law, but also were not part of the United States in any way that would bring them under the Constitution's uniformity clause.

• 32:30Tracy V. Wilson?

  This decision sort of read into various parts of the Constitution and previous court decisions, arguing that you really couldn't infer from the Constitution that territories were part of the United States, like the 13th Amendment to the Constitution abolished slavery, quote, "within the United States or in any place subject to their jurisdiction." So according to this argument, that had to mean there were places that were subject to US jurisdiction but were not part of the United States. Or in the 14th Amendment, quote, "All persons born or naturalized in the United States

• 33:11Tracy V. Wilson?

  and subject to the jurisdiction thereof are citizens of the United States and the state wherein they reside." So in the court's view, that suggested that in the United States and subject to US jurisdiction could be two totally different things.

• 33:27Holly Frey?

  To quote from the plurality opinion authored by Justice Henry Billings Brown, quote, "We are also of the opinion that the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants and what their status shall be in what Chief Justice Marshall termed the American Empire. There seems to be no middle ground between this position and the doctrine that if their inhabitants do not become immediately upon annexation citizens of the United States, their children thereafter born, whether savages or civilized, are such and entitled to all the rights, privileges, and immunities of citizens.

• 34:11Holly Frey?

  If such be their status, the consequences will be extremely serious. Indeed, it is doubtful if Congress would ever assent to the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits, traditions, and modes of life, shall become at once citizens of the United States."

• 34:31Tracy V. Wilson?

  Ah, legal racism. Yeah, it's, it's very, it's like... It's straightforwardly racist. The plurality opinion concluded, quote, "If those possessions are inhabited by alien races differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible, and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out and the

• 35:12Tracy V. Wilson?

  blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action." It went on to say, quote, "We are therefore of opinion that the island of Puerto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution, that the Foraker Act is constitutional, so far as it imposes duties upon imports from such island, and that the plaintiff cannot recover back the duties exacted in this case." So this was one of many five-four decisions among the insular cases. Just in case folks

• 35:56Tracy V. Wilson?

  are not from the US, they don't necessarily know how the Supreme Court is set up. There are nine justices. And so in a lot of these cases, the decision was five to four. A dissent by Chief Justice Fuller included the statement, quote, "Great stress is thrown upon the word incorporation, as if possessed of some occult meaning." Justice John M. Harlan also penned a dissent of his own, which said in part, quote, "These are words of weighty import. They involve consequences of the most momentous character. I take leave to say that if the principles thus announced should ever receive the sanction of a majority of this court, a radical and mischievous change in our system of government

• 36:41Tracy V. Wilson?

  will be the result. We will, in that event, pass from the era of constitutional liberty guarded and protected by a written Constitution into an era of legislative absolutism."

• 36:54Holly Frey?

  Together, these 1901 cases established the idea that Puerto Rico, Hawaii, the Philippines, Samoa, and Guam were part of the United States in some ways, but not others, and could stay that way indefinitely. Cases that followed later in the early 20th century also outlined limits on the constitutional rights of people living in these territories. As we said earlier, some scholars consider these later cases to be part of the insular cases and some do not. As a few examples, Dorr versus United States, decided in 1904, looked at the question of whether residents of the Philippines had the right to a trial by jury. The right to a jury trial is outlined in the Sixth Amendment to the Constitution, but

• 37:38Holly Frey?

  the court ruled that it would only apply in the Philippines if Congress enacted legislation to establish that right.

• 37:46Tracy V. Wilson?

  Hawaii versus Mankichi was similar, finding that the right to a jury trial had not existed in Hawaii in the window between when the US annexed it and when Congress passed an act to provide a government for the territory of Hawaii in 1900. This act bestowed US citizenship on the people who had been citizens of the Republic of Hawaii as of August 12, 1898. So, once people in Hawaii were considered to be US citizens, they were entitled to a trial by jury, but when Hawaii was a US territory whose residents were not citizens, they were not entitled to a jury trial.

• 38:27Holly Frey?

  Gonzalez versus Williams was decided in 1904. Although Puerto Ricans were not considered US citizens at that time, they were supposed to be able to travel freely to the United States. Isabella Gonzalez had tried to join her fiance in New York, but was turned away at port. She was pregnant, and authorities described her as an alien who was likely to become a public charge. The court found that she was not an alien and should not have been denied entry into New York, but also did not find that she was a citizen. This case is sometimes cited as a factor in Puerto Ricans ultimately being given citizenship as part of the Jones-Shafteroth Act in 1917.

• 39:10Tracy V. Wilson?

  When I got to this part, I was like, I kind of wish I had done a whole episode on this one case, which might happen at some point in the future.

• 39:17Holly Frey?

  We still could.

• 39:18Tracy V. Wilson?

  One of the last cases that is sometimes grouped together with the Insular cases was Balzac versus Puerto Rico decided in 1922. This was a case in which Jesus M. Balzac, editor of a Puerto Rican daily newspaper, had been charged with libel. So this case was connected to the rights of free speech, freedom of the press, and trial by jury, which are all considered basic constitutional rights in the United States. The court found that Puerto Rico had not been incorporated into the United States and that the Sixth Amendment right to a jury trial did not apply, and that Balzac's published work was not protected by the rights to free speech or a free press.

• 40:01Holly Frey?

  There are a lot of contradictions among these cases, and sometimes within the cases themselves. As we said earlier, many were decided five to four, and often those five justices agreed on the outcome, but not on the reasoning behind it. But together, they established what's known as the incorporation doctrine. They outlined differences between incorporated and unincorporated territories and set the stage for the United States to be able to claim unincorporated territories in perpetuity without allowing them to enter the Union as states or deannexing them. While the US Constitution established the nation as a representative democracy, the

• 40:42Holly Frey?

  Insular cases set aside several territories, territories that were inhabited primarily by Hispanic and indigenous people as not entitled to full participation or representation in that democracy.

• 40:55Tracy V. Wilson?

  While, as we said earlier, these cases still stand, there have, of course, been some shifts in details over the last century. The Philippines became independent from the United States in 1946 after being occupied by Japan during World War II. Japan had actually declared the Philippines independent in 1943, sort of trying to get the support of Filipinos during this occupation.

• 41:19Tracy V. Wilson?

  As we said earlier, the people of Puerto Rico were granted statutory citizenship in 1917. And in 1950, Public Law 600 authorized the people of Puerto Rico to draft their own constitution. So Puerto Rico today is considered to be self-governing.

• 41:36Holly Frey?

  Hawaii became a state in 1959, a process that took more than 50 years, due in part to racist attitudes against the archipelago's native Hawaiian and Asian residents. While voters in Hawaii overwhelmingly ratified its statehood, many native Hawaiians have pushed instead for Hawaiian independence and sovereignty. Residents of Guam gained U.S. citizenship under the Guam Organic Act of 1950, after having been essentially abandoned by the United States and left to a horrific occupation by Japan during World War II. Today, American Samoans are considered U.S. nationals, but not U.S. citizens.

• 42:17Tracy V. Wilson?

  You could say this of all of these places, but the United States has definitely been most focused on them when it has been like the most within U.S. interests to do so. So like, there's the most focus on the well-being of Guam when there's a like strategic military reason to do so for some reason. And like this abandonment of Guam during World War II is kind of the U.S. to basically just like cut its losses. We mentioned the Northern Mariana Islands and the U.S. Virgin Islands, the top of the show. They have not come up again because they were not U.S. territories when the first insular cases were decided. The U.S. purchased the U.S. Virgin Islands from Denmark in 1917.

• 43:01Tracy V. Wilson?

  The Northern Mariana Islands became a U.S. territory in 1975, even though neither was a U.S. territory when the original insular cases were being argued and decided. They're both considered unincorporated territories, following the same model that the insular cases established. The U.S. Virgin Islands, American Samoa, and Guam are all on the United Nations list of non-self-governing territories.

• 43:28Holly Frey?

  Broadly speaking, people living in these territories are considered to be entitled to fundamental constitutional rights, but not necessarily to others. And opinions can also differ on which rights should be considered fundamental. The unincorporated territories are not represented by the Electoral College in presidential elections. They are represented by one delegate each in the House of Representatives, who can serve on committees and can introduce legislation, but cannot vote.

• 43:57Tracy V. Wilson?

  There are actually six total non-voting members of the House. The sixth one represents Washington DC, so as is the case with the unincorporated territories, residents of Washington DC don't have the same representation in Congress as people who live in one of the states do. A key difference here, though, is that the Constitution itself outlines the creation of a district to serve as the seat of the government. Washington DC did not come about because the Supreme Court kind of made up the justification to do so.

• 44:30Holly Frey?

  At this point, there's near unanimous agreement among historians and constitutional law scholars that the Insular cases are rooted in racism and colonialism. But there's less agreement about what the outcome would be if these cases were overturned, and whether that outcome would ultimately be positive for people who would be affected. And in more recent years, there have been some attempts to use these decisions to try to protect the rights of people who are living in these territories. For example, in the US, it would be considered unconstitutional to pass laws tying property ownership to race. Theoretically, since the unincorporated territories don't have full constitutional protection, it would be possible to pass laws giving these islands indigenous peoples

• 45:15Holly Frey?

  preference in terms of land ownership based on their race, which could help protect their connections to their ancestral homelands and their traditional ways of life.

• 45:26Holly Frey?

  Having worked on this show for a decade, Tracy notes that she's not really optimistic about this working out. I would agree with that. And she also read a lot of arguments that basically kind of summed this up to, no matter what good end you try to put them to, these decisions are still racist and should still be overturned.

• 45:44Tracy V. Wilson?

  Yeah, and to be very clear, the only reason I said there is near unanimous agreement instead of just unanimous agreement is because I know if we say unanimous, we're going to get an article somebody sends to us that's like, here's the one outlier who claims this was not about racism. There have also been a number of Supreme Court cases in more recent years that have continued to uphold elements of the insular cases and to outline ways in which people living in these territories can be treated differently from people in the 50 states or Washington DC in the context of congressional representation. We're talking about Washington DC. So for example, the US versus Vallejo Madero was decided in 2022.

• 46:28Tracy V. Wilson?

  Vallejo Madero was a Puerto Rican living in New York who had been receiving supplemental security income payments. That's what we colloquially called social security or disability payments. He moved to Puerto Rico, making him no longer eligible to receive these payments. And the government did not realize he had moved and kept sending the payments. When they realized what had happened, the government sued to try to recoup that money. The argument in this case was that excluding Puerto Ricans from the program violated the Constitution's due process clause in the Fifth Amendment.

• 47:04Holly Frey?

  In an eight to one decision, the Supreme Court disagreed, ruling that the Constitution did not require supplemental security income payments for people in Puerto Rico. Justice Neil Gorsuch wrote a scathing concurrence, agreeing with the majority opinion, but also arguing stridently against the insular cases. He wrote, quote, flaws in the insular cases are as fundamental as they are shameful. Nothing in the Constitution speaks of incorporated and unincorporated territories. Nothing in it. Extends to the latter only certain supposedly fundamental constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating territories

• 47:46Holly Frey?

  and the people who live in them on the basis of race, ethnicity, or religion. The insular cases can claim support in academic work of the period, ugly racial stereotypes, and the theories of social Darwinists, but they have no home in our Constitution or its original understanding.

• 48:04Tracy V. Wilson?

  The case that the Supreme Court declined to hear last year was Fideszmanu versus United States. That was brought by three American Samoans living in Utah. They argued that the 14th Amendment's birthright citizenship clause should apply to the people of American Samoa. While American Samoans who move to the United States can apply for citizenship, they're not guaranteed citizenship. They are also denied various rights like voting and running for office until they become citizens if those applications are successful.

• 48:40Holly Frey?

  As we said at the top of the show, people in American Samoa have varying opinions on these issues. In this case, the government of American Samoa and Congresswoman Almua Amata, who represents American Samoa, submitted a brief opposing this idea. It read in part, quote, "The citizenship clause does not require imposing birthright citizenship on the people of American Samoa over the objection of their elected representatives and government and in violation of their basic right to self-determination." This brief stressed the importance of fa'asamaa, or the Samoan culture and way of life, arguing that fa'asamaa is fundamentally important to the Samoan people and that imposing birthright citizenship on American Samoa would undermine it.

• 49:24Holly Frey?

  The Samoan Federation of America, which supports and advocates for Samoan Americans living in the United States, was one of the organizations that submitted a brief supporting the petitioners.

• 49:34Tracy V. Wilson?

  Yes, so, as we said earlier, people are not a monolith. There are varying opinions on this. There were more briefs submitted in support of applying birthright citizenship to American Samoa, but also a lot of people currently living in American Samoa who were like, "That's not what we want, though." A lot of these things are.

• 49:58Tracy V. Wilson?

  Complicated. And we have not gotten into it here, but like these distinctions and which rights apply and which don't. Like, a lot of them just trickle down to all kinds of things about people's everyday lives. A lot of these places have disproportionately higher participation in military service. So there are a lot of military veterans, but, you know, military veterans then returning to these places aren't able to do things like vote for president afterward. And in some cases, the veteran services in their local areas are not good. Abysmal. Yeah, I was reading, I was reading one thing about people from Guam needing particular

• 50:42Tracy V. Wilson?

  veteran services and having to go to Hawaii to get them, which is like 4,000 miles away. Thanks so much for joining us on this Saturday. If you'd like to send us a note, our email address is [email protected]. And you can subscribe to the show on the iHeart Radio app, Apple Podcasts, or wherever you listen to your favorite shows.

• 51:15Speaker 01

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• 52:12Holly Frey?

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