Insular cases are a relic of our colonial past

During labor strikes in Puerto Rico at the end of World War I, journalist and organizer Jesús M. Balzac published two editorials criticizing the island’s white Kentucky-born governor, Arthur Yager. Balzac wrote:

“… in order that privileges and classes may be suppressed … in order that this century and its people may soon rise from abjection … we pledge our lives at the altar of liberty and democracy.”

For these fiery articles in which he also called the governor a “tyrant,” a “dictator” and “the diabolical incarnation of despotism,” Balzac was sentenced to five months in prison for libel—following a trial with no jury. His lawyer argued that as a U.S. citizen, Balzac’s First and Sixth Amendment rights had been violated.

In April 1922, the U.S. Supreme Court denied Balzac the right to a jury trial. It held that because Puerto Rico was an “unincorporated” territory of the United States, not all constitutional rights applied there. And today, an entire century later, residents of the territories are still having their rights selectively limited in this way: the court recently denied them Supplemental Security income by a vote of 8-1, and it will soon consider whether they are guaranteed birthright citizenship by the 14th Amendment.

Balzac v. Porto Ricowas the last in a series of controversial Supreme Court decisions known as the Insular Cases that set the stage for where we are today. Although these cases rest on archaic, offensive and explicitly racist reasoning, the government still relies on them to enforce the status quo: that residents of the territories do not enjoy the same freedoms as anyone else in the United States. We, as the leaders of the ACLU, the NAACP Legal Defense & Educational Fund (LDF) and LatinoJustice PRLDEF, call on the Biden administration to — at last — publicly condemn them.

The Insular Cases are a relic of a colonial past and a stain on President Biden’s racial equity agenda. Billed by legal scholar Sanford Levinson as “central documents in the history of American racism,” their doctrine is a key reason the United States stopped adding stars to the flag after Hawaii and Alaska in 1959. It cemented in law that the inhabited islands annexed by the United States for economic control of the oceans — American Samoa, Guam, the Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands — would not have the Constitution’s full protection because their residents were, as Justice Henry Billings Brown wrote in the leading Insular Case, Downes v. Bidwell, “alien races, differing from us.”

To explain its view, the court declared that the “unincorporated” territories — whose residents are almost entirely Latino, Afro-Caribbean, Pacific Islander, or otherwise non-white — were “foreign in a domestic sense,” distinct from those territories such as Oklahoma and New Mexico that Congress considered destined for statehood. It is no coincidence that Downeswas decided by virtually the same court that ruled in Plessy v. Ferguson that Black people could be “separate but equal” under the law.

Although it has been almost 70 years since Plessywas overturned in Brown v. Board of Education, a case brought by LDF, the Insular Cases remain law today. Justice Neil Gorsuch, even while concurring  in U.S. v. Vaello-Madero to deny Supplemental Security Income to residents of Puerto Rico, called on the court to finally “recognize that Insular Cases rest on a rotten foundation.” He wrote that their flaws, among them their basis in “ugly racial stereotypes,” were “as fundamental as they are shameful.” Separately in dissent, Justice Sotomayor agreed: she wrote that the decisions were “premised on beliefs both odious and wrong.”

Although the Biden administration tried to distance itself from the Insular Casesat argument for Vaello-Madero, it relied on them in the lower courts for Fitisemanu. In their 10th Circuit brief, the government cited the Downes opinions that call residents of the territories “an uncivilized race” whose members are “absolutely unfit to receive [citizenship]”.

That the Insular Cases result in an à la carte Constitution through which fundamental rights are afforded to some under U.S. jurisdiction but denied to others is dangerous in its own right, and residents of the territories have borne the brunt of this inequity. Same-sex couples in American Samoa remain unable to get married, despite the historic decision in Obergefell v. Hodgesin 2015. Certain Fourth Amendment protections against warrantless search and seizures do not apply in the U.S. Virgin Islands. And in a particularly tragic case, twins who suffered from a debilitating and incurable muscular disorder had very different end-of-life experiences: one sister was eligible for federal benefits because she lived in the continental United States, while her twin received nothing because she lived in Guam.

By undermining the bedrock of our legal system, arguments that rely on the Insular Cases also set attractive precedent for groups that want to exclude people of color from our democracy. It is foreboding that an anti-immigrant coalition filed a friend-of-the-court brief in a case similar to Fitisemanu, with the apparent objective of undermining the Constitution’s guarantee of birthright citizenship altogether.

Constitutional rights must be guaranteed to all persons in the United States regardless of race and geography. Each territory should have the ability to self-govern if they so choose, but as long as they remain subject to our governance, a resident of Guam, the U.S. Virgin Islands or the Northern Mariana Islands should have the same rights as someone living in Wyoming, Texas or New Jersey. The notion that territories could be “foreign in a domestic sense” was cribbed from European colonialists to serve American interests without regard for the islands’ residents. Doing away with these relics of our colonial past is an essential first step to redressing past damage.

We urge the Biden administration, in the name of liberty, democracy and racial equity, to finally condemn the Insular Cases.

Anthony Romero is executive director of the ACLU, Lourdes Rosado is president of Latino Justice and Janai Nelson is president of Legal Defense Fund (LDF).