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Should the US Acknowledge the Racist Past of the Insular Cases?

Should the U.S. acknowledge its racist past that’s on display within the Insular Cases?  A bill introduced by the present Congress asks the nation to just do this.

The Insular Cases are a series of Supreme Court cases decided within the early 1990’s.  HR 279, a bill introduced within the spring of 2021, calls on Congress to acknowledge the racist underpinnings of those decisions, which have never been overturned and remain the law today.  The bill summary states:

H.Res.279 – Acknowledging that america Supreme Court’s decisions within the Insular and the “territorial incorporation doctrine” are contrary to the text and history of america Structure, rest on racial views and stereotypes from the era of Plessy v. Ferguson which have long been rejected, are contrary to our Nation’s most simple constitutional and democratic principles, and must be rejected as having no place in United States constitutional law.

The bill asks that the Insular Cases be rejected, with 4 specific demands:

  • That Congress recognizes that America’s constitutional and democratic principles apply throughout america, including each States and territories;
  • That Congress acknowledges that the Insular Cases are contrary to the text and history of the Structure;
  • That Congress acknowledges that the Insular Cases are relics of the racial views of an earlier era that don’t have any place in our Nation today
  • That Congress rejects the Insular Cases and their application to all present and future cases and controversies involving the applying of the Structure in United States territories.

What are the Insular Cases?

“Insular” means “pertaining to islands,” and refers specifically on this context to the island territories of america, including Puerto Rico.

The primary three Insular cases, DeLima v. Bidwell, Dooley v. United States, and Downes v. Bidwell, were argued together in 1901. Scholars aren’t in complete agreement on the list of Insular Cases, but they sometimes are understood to incorporate cases decided through 1922, including Balzac v. Porto Rico. Six of the cases apply specifically to Puerto Rico.

The Insular Cases introduced the thought of unincorporated territories and determined that the U.S. Structure doesn’t apply equally to territories and to states. These decisions have continued to affect Puerto Rico and the opposite territories.

Are the Insular Cases racist?

The strongest evidence that the Insular Cases are racist could also be in the usage of language in the selections.

The choice in Downes v. Bidwell specified that the insular territories were inhabited by “alien races.”

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 presidency and justice in response to Anglo-Saxon principles may for a time be inconceivable, and the query directly arises whether large concessions ought to not be made for a time, that ultimately our own theories could also be carried out and the blessings of a free government under the Structure prolonged to them. We decline to carry that there’s anything within the Structure to forbid such motion.

We’re due to this fact of opinion that the Island of Porto Rico is a territory appurtenant and belonging to america, but not a component of america throughout the revenue clauses of the Structure; that the Foraker Act is constitutional, up to now because it imposes duties upon imports from such island, and that the plaintiff cannot recuperate back the duties exacted on this case.

On this decision, an excellent deal of the argument focused on the difference between a state and a territory.

“In brief, the Structure deals with states, their people, and their representatives,” Justice Henry Billings Brown wrote. “The researches of counsel have collated numerous other instances wherein Congress has in its enactments recognized the undeniable fact that provisions intended for the states didn’t embrace the territories, unless specially mentioned. These are present in the laws prohibiting the slave trade with ‘america or territories thereof.’”

“The selections of this Court upon this subject haven’t been altogether harmonious,” Justice Brown admitted.  “A few of them are based upon the speculation that the Structure doesn’t apply to the territories without laws. Other cases, arising from territories where such laws has been had, contain language which might justify the inference that such laws was unnecessary, and that the Structure took effect immediately upon the cession of the territory to america.”

The concept of a population quite different from that present in the incorporated territories or states comes up greater than once. Justice Brown asks whether there wouldn’t be danger in “the immediate bestowal of citizenship on those absolutely unfit to receive it?” and goes on,  “Wouldn’t the war, even when waged successfully, be fraught with danger if the effect of occupation was to necessarily incorporate an alien and hostile people into america?”

DeLima v. Bidwell, decided in 1901, discusses the issue of “savage tribes”:

Whatever may be the interests, temporary or everlasting, whatever may be the condition or fitness of the ceded territory, the effect on it or on us, the territory would develop into a component of america with all that suggests. It is simply true to say that counsel shrink somewhat from the implications of their contention, or, if “shrink” be too strong an expression, deny that it might be carried to the nationalization of uncivilized tribes. Whether that limitation could be logically justified we aren’t called upon to say. There could also be no ready test of the civilized and uncivilized, between those that are able to self-government and those that aren’t, available to the judiciary or which may very well be applied or enforced by the judiciary. Upon what degree of civilization could civil and political rights under the Structure be awarded by courts? The query suggests the difficulties, and the way essentially the entire matter is legislative, not judicial. Nor can those difficulties be put out of contemplation, under the idea that the principles which we may declare could have no other consequence than to affect duties upon a cargo of sugar. We’d like not, nonetheless, dwell on this a part of the discussion. From our construction of the powers of the federal government and of the treaty with Spain the danger of the nationalization of savage tribes cannot arise.

It just isn’t possible, within the twenty first century, to see the people of Puerto Rico described in these terms without recognizing a level of racism which just isn’t appropriate for contemporary Americans, even when the legal query of the difference between states and territories just isn’t in and of itself an expression of racism.

Are states and territories equal?

HR 279 claims that “America’s constitutional and democratic principles apply throughout america, including each States and territories.” Nevertheless, quite recent decisions by the Supreme Court in addition to Congress make it clear that Puerto Rico doesn’t have equal rights with states. SSI (Supplemental Security Income) is offered to residents of state but to not residents of Puerto Rico. Families in Puerto Rico receive less dietary support and capped, limited Medicaid funding.

In these and lots of more cases, the Supreme Court has affirmed that Congress is allowed, under the Territory Clause, to “make all needful rules” for its territories. there isn’t a requirement that the foundations be fair or equal to those of the states.

In truth, the Insular Cases stated that the U.S. Structure doesn’t apply fully to the territories. The 14th amendment doesn’t apply. “In brief, the Structure deals with states, their people, and their representatives,”

HR 279 could due to this fact amount to an actual change in outlook for Congress, no less than by way of the primary of the 4 demands.

Recognition that the language utilized in the Insular Cases is offensive and outdated mayt be an uncontroversial place to launch a debate on the status of the U.S. territories.

Future application

The fourth demand, that, the Insular Cases now not apply to any decisions going forward, may be probably the most difficult to implement of the 4.

Within the case of Fitisemanu vs. United States, American Samoa clearly stated that the territory doesn’t want U.S. citizenship like that of Puerto Rico. Birthright citizenship could be a threat to traditional laws which might develop into unconstitutional if the U.S. Structure were held to use equally to American Samoa.

The Supreme Court declined to listen to this case.

More recently, the Supreme Court refused to think about an appeal of a choice made by the PROMESA Fiscal Oversight and Management Board regarding teachers’ pensions in Puerto Rico. The Board argued that this case just isn’t affected by the Insular Cases, and that the plaintiffs set it up as a test of those cases only with a purpose to make it appear more vital than it’s.

While the Court appears reluctant to deal with the legacy of the Insular Cases, the ACLU and other groups have called on Congress to pass HR 279, repudiating the Insular Cases, before the tip of the 12 months.

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