Insular Cases
The preliminary answer came from a series of Supreme Court rulings, now known as the Insular Cases, which responded to the question of how American constitutional rights apply to those in United States territories.
The Supreme Court held that full constitutional protection of rights does not automatically (or ex proprio vigore—i.e., of its own force) extend to all places under American control.
Today, many legal scholars such as José Julián Álvarez González, Christina Burnett, and others[3][4] refer to the Insular Cases as a constitutional justification for colonialism and annexation of places not within United States boundaries.
[5] The Insular Cases "authorized the colonial regime created by Congress, which allowed the United States to continue its administration—and exploitation—of the territories acquired from Spain after the Spanish–American War.
The Supreme Court created the distinction that unincorporated territories were not on the path to statehood, which effectively allowed for the Constitution to apply differently.
"[5] After Title IX of the Treaty of Paris came the Foraker Act of 1900, which established American rule in Puerto Rico for all of the twentieth century.
[5] The act allowed the United States to appoint the governor, a portion of the legislature, and the entirety of the Puerto Rico Supreme Court.
In addition to the Treaty of Paris and the Foraker Act, the Citizenship Clause found within the 14th Amendment of the United States Constitution informed the Insular Case decisions.
[24] Similarly, in Dorr v. United States (1904), the Supreme Court ruled against right to trial by jury for Philippines residents, another unincorporated territory at the time.
Bartholomew Sparrow writes that in Downes v. Bidwell, "the Court found that Congress could tax trade between Puerto Rico and the states.
In DeLima v. Bidwell (1901), the Supreme Court found "Puerto Rico was part of the United States for the purpose of the Uniformity Clause.
Expansionists wished to separate U.S. action from the behavior of Spain, whose colonialism they viewed as motivated only by commercial interests and a continued desire to subjugate.
The United States presented its own imperial ambitions as a path to liberation for former colonial subjects and an opportunity to gain republican government and modernity.
[27] Bartholomew Sparrow notes that almost all of the Insular Case opinions were 5–4 within the Supreme Court, demonstrating the contentious nature of the topic even from the highest voice of law in the United States.
"[24] Reactions to the Insular Cases also exemplify the divide that existed at the time in the United States government surrounding empire building.
"[24] Additionally, John K. Richards, who as Solicitor General argued several of the cases for the government, said that "they sustain to the fullest extent the so-called insular policy of the administration.
Outside of the government, the announcement of the Downes v. Bidwell decision in 1901 drew the largest crowd in Supreme Court history, displaying the interest the American public had in the outcome of the case.
"[24] Furthermore, The Denver Post exclaimed the "Downes decision 'at one fell swoop' brought the United States 'into the ownership of colonies and putting us into the rank of land grabbing nations of Europe.
[28] Scholar Rick Baldoz notes that American political "anxieties about immigration, race, and economic competition"[27] strongly influenced the debate surrounding the Insular Cases.
Puerto Rico was seen as "an important geo-strategic asset"[27] for emerging U.S. imperialism and a gateway to Latin America, while insular control over the Philippines was a "temporary attachment born of political expediency".
[30] Writing in 2001, former Puerto Rico Supreme Court Chief Justice José Trías Monge contends that the Insular Cases were based on premises that would be legally and politically unacceptable in the 21st century, premises such as:[31] Scholar Krishanti Vignarajah has also argued that the Court's decisions in the Insular Cases could have been considered judicial overreach.
20-303, 596 U.S. ___ (2022), Justice Neil Gorsuch concurred with the majority opinion excluding Puerto Rico from the Supplemental Security Income program, but he criticized the Insular Cases and stated that they are "shameful," "have no foundation in the Constitution and rest instead on racial stereotypes," and "deserve no place in our law.
The incorporation doctrine's "uncertainty" has allowed U.S. courts the ability to discriminate against Puerto Rican plaintiffs on issues of individual welfare and entitlement into the current day.
