The Supreme Court may take territories off the map of the US

More than 3 million Americans occupy a weird space in the world’s political geography. That could soon change.

May the United States rule foreign territories without granting their inhabitants constitutional rights? Yes, according to landmark Supreme Court decisions in the “Insular Cases” more than a century ago. Without those decisions, our overseas territorial empire could not have existed.

Suddenly that decision is under fierce attack from within the Court itself. The fate of America’s five populated colonies — Puerto Rico, the US Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands — may hang in the balance.

In April the Supreme Court decided what seemed to be an abstruse case about federal benefits owed to Puerto Ricans. But Justice Neil Gorsuch’s opinion began with a startling passage. He asserted that the United States has no business deciding anything for Puerto Rico because our ownership of that island — and by extension other US colonies — is unconstitutional.

“A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other territories largely without regard to the Constitution,” Gorsuch wrote. “It is past time to acknowledge the gravity of this error and admit what we know to be true: the Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law. . . . And I hope the day comes soon when the Court squarely overrules them.”

Those strong words set off a flurry of activity. Three residents of American Samoa were already suing the US government for denying them full citizenship; like residents of other US territories, they cannot vote in presidential elections, are not represented in Congress, and may only pass laws of which the US government approves. Encouraged by what Gorsuch wrote, they have expanded their case and are now asking that the Insular Cases be reversed. If they win, it means that we have no constitutional right to hold overseas territories. What would happen then? No one knows. Even Gorsuch conceded that “settling this question right would raise difficult new ones.”  

The Insular Cases were decided by a profoundly racist Supreme Court. Justice Henry Billings Brown, who wrote the majority opinion in the key Insular Case, had also written the Plessy v. Ferguson decision that legalized racial segregation. His logic was consistent: If the US government can legally deprive some Americans of their rights, it can do the same to people it governs overseas. The Plessy case has long since been condemned and overruled. The same could soon happen to the Insular Cases.

In 1901, when the Insular Cases were decided, the United States was in a frenzy of overseas expansion. We had just seized Puerto Rico, Guam, and the Philippines. Some in Washington were horrified.

“You have no right at the cannon’s mouth to impose on an unwilling people your Declaration of Independence and your Constitution and your notions of freedom and notions of what is good!” Senator George Frisbee Hoar of Massachusetts thundered during a congressional debate in 1899. Senator Augustus Octavio Bacon of Georgia succinctly framed the key question in his response to a pro-imperialist colleague: “Seeing that the executive has only such powers as are given in the Constitution, I want to know under what clause of the Constitution the Senator finds the power to seize the territory of a neutral country with which we are not at war.”

Days after those speeches were delivered, Congress ratified the treaty that brought America its first colonies. Opponents appealed to the Supreme Court. There they lost again. It was a 5-4 decision.

“The Constitution does not apply to foreign countries,” Justice Brown wrote. “If these 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. . . . A false step at this time might be fatal to the development of what Chief Justice Marshall called the ‘American Empire.’”

In a dissent that reads like a howl of protest, Justice John Harlan wrote: “The idea that this country may acquire territories anywhere upon the earth, by conquest or treaty — the people inhabiting them to enjoy only such rights as Congress chooses to accord them — is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution.”

That argument may soon be made to the Supreme Court for a second time. Much has changed since 1901. We allowed our biggest colony, the Philippines, to become independent in 1946. Residents of the five that remain have been granted most constitutional rights. Yet they remain under Washington’s ultimate control.

Overruling the shameful Insular Cases would not lead to instant independence for our colonies, but it would fundamentally alter their legal status. If their citizens are ruled to be legally equal to Americans, they might move toward independence. They could also go in the opposite direction, seeking compacts of “free association” with the United States. A favorable decision might also mean that the US naval base and prison camp at Guantanamo, Cuba, which the US awarded itself after taking control of Cuba in 1898, would become illegal.

The five US possessions that would be affected by a reversal of the Insular Cases are home to 3.5 million people. They inhabit a weird space in the world’s political geography. That may soon change. The court is expected to rule on the Samoans’ case later this year. Many islanders will be watching.

Stephen Kinzer is a senior fellow at the Watson Institute for International and Public Affairs at Brown University.