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Though most Hispanic Americans (let alone the population at large) are unaware of it, we still have on the books our own Dred Scott, Plessy, and Korematsu. I am referring to the Insular Cases. A series of decisions handed down by the Supreme Court in the early 1900s, the Insular Cases collectively stand for two propositions: (1) The United States can hold the territories acquired after the 1898 Spanish-American War — including Puerto Rico — as “unincorporated” territories, i.e., territories not destined for statehood. (2) The inhabitants of unincorporated territories — which also include American Samoa, Guam, the Northern Mariana Islands, and the Virgin Islands — do not enjoy all the constitutional rights that protect U.S. citizens in the 50 states. Today, Dred Scott v. Sandford (1857), Plessy v. Ferguson (1896), and Korematsu v. United States (1944) are artifacts of an abhorrent past. But every day the Insular Cases still affect the lives of U.S. citizens. The critical decision of the Insular Cases came in Downes v. Bidwell (1901). Up to that point in our history, the condition of “territory” had been considered a temporary status on the way to statehood. But also up to that point, territories had usually been already well inhabited by, or highly desirable to, white settlers. The “splendid little war” that turned the United States into an imperial power brought a slew of distant islands stretching all the way to the Philippines. What was the country to do with those people in those places? By creating out of whole cloth the concept of unincorporated territories, the Court in the Insular Cases gave its answer: “We” can rule these lands, but “we” don’t have to treat “their” people the same as we treat “our” people, because “they” are not “us.” Not surprisingly, the Insular Cases have been called “central documents in the history of American racism” (by University of Texas law professor Sanford Levinson). The most significant, Downes, has as the author of its main opinion the same Justice Henry Brown who wrote the majority opinion in Plessy, and, just as in Plessy, Justice John Marshall Harlan dissented. Downes was a case brought to recover import duties collected on orange shipments from Puerto Rico to New York. The Court upheld the imposition of such duties, which — if Puerto Rico was a U.S. territory, as the Court held it was — seemed inconsistent with the constitutional requirement that duties be uniform throughout the country. To carve out an exception for Puerto Rico, the Court went hunting for a theory, which culminated in the doctrine of incorporated versus unincorporated territories. The former enjoy all constitutional rights; the latter, only those deemed “fundamental.” In justifying the Court’s refusal to extend all constitutional protections to unincorporated territories, Brown wrote that where newly acquired 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.” For Puerto Rico and its more than 4 million U.S. citizens, that time has now lasted 107 years. One wonders how long the Court then — or, more to the point, the Court today — thinks it should take to extend the full blessings and protections of the Constitution to our fellow citizens. WHAT’S FUNDAMENTAL The four dissenting justices in Downes rejected the idea of an unincorporated territory: “That theory assumes that the Constitution created a government empowered to acquire countries throughout the world, to be governed by different rules than those obtaining in the original states and territories, and substitutes for the present system of republican government a system of domination over distant provinces in the exercise of unrestricted power.” In a separate dissent, Harlan wrote eloquently: “The idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces — the people inhabiting them to enjoy only such rights as Congress chooses to accord to them — is wholly inconsistent with the spirit and genius as well as with the words of the Constitution.” Harlan took no consolation in the majority’s holding that at least those rights deemed “fundamental” apply to unincorporated territories. “The wise men who framed the Constitution,” Harlan wrote, “were unwilling to depend for their safety upon . . . ‘certain principles of natural justice inherent in Anglo-Saxon character.’ . . . They well remembered that Anglo-Saxons across the ocean had attempted . . . to trample upon the rights of Anglo-Saxons on this continent.” SECOND-CLASS CITIZENS Some might say that the Insular Cases did not do to Puerto Ricans what other precedents did to African- and Japanese-Americans. That’s true. “Fundamental” rights still apply, and any territorial citizen can purchase full equality with a one-way ticket to the mainland. (In fact, more than 3 million Puerto Ricans have chosen just that — to live on the mainland.) And yet, because of the Insular Cases, people in Puerto Rico and the other territories have remained, as the dissenters in Downes predicted, in an “intermediate state of ambiguous existence for an indefinite period.” They are still second-class citizens, lacking the rights to vote for president, to elect a voting representative to Congress, and to receive equal treatment under federal programs. Consider this: None of the 16 soldiers from Puerto Rico who have died in Iraq so far could vote for the commander in chief. While federal law applies on the island and Puerto Rico has more inhabitants than 23 states, it has no senators and only one nonvoting House member. As a state, it would be entitled to about six voting representatives. Had Puerto Rico been treated as a plain old incorporated territory in 1901, Puerto Ricans would have been on the path to statehood. But the Insular Cases blocked the way. Similarly, because of the Insular Cases, the federal government has no constitutional obligation to fund entitlement programs in Puerto Rico to the same level as in the states. The result: In almost every single federal program, Puerto Rico’s U.S. citizens are discriminated against. For example, Puerto Ricans and their struggling health care providers do not receive equal treatment under Medicare despite the fact that Puerto Ricans pay the same Medicare payroll taxes and deductibles as mainlanders. Likewise, federal Medicaid support comes to about $330 per month per participant in the states, as compared with about $20 per month per participant in Puerto Rico. Such is the absurdity of this situation that even U.S. citizens residing abroad have more rights in many respects. If a state resident moves to France, he can still cast an absentee ballot for president in his former state of residence. Not, however, if he moves to Puerto Rico. Similarly, citizens charged with capital offenses committed abroad must be tried by a jury; that is not constitutionally required in the territories. The plight of territorial citizens is worse than that experienced by citizens in the District of Columbia, who, while denied voting representation in Congress, at least have all the other constitutional rights of state residents, enjoy equal treatment in federal programs, and can vote for president and vice president. SEE INSULAR CASES Sometimes the courts have queried the continuing legitimacy of the Insular Cases. In Torres v. Commonwealth of Puerto Rico (1979), four dissenting justices questioned “the validity of the[se] old cases.” But usually, when the Insular Cases rear their ugly head, nobody blinks. In 1990, for instance, in a case rejecting a Mexican national’s attempt to exclude evidence found in a warrantless search of his Mexican house, Chief Justice William Rehnquist wrote for a majority that the “application of the Constitution is . . . contrary to this Court’s decisions in the Insular Cases, which held that not every constitutional provision applies to governmental activity even where the United States has sovereign power.” Ten years later, the Court summarily affirmed a holding by a three-judge district court that, because of the Insular Cases, the one-person-one-vote doctrine does not apply to the Northern Mariana Islands. The Insular Cases have also recently appeared in the circuit courts. In 2001 the U.S. Court of Appeals for the 2nd Circuit affirmed a decision denying a former resident of New York an absentee ballot in Puerto Rico. In 2002 the 3rd Circuit denied a Virgin Islands resident the right to a grand jury indictment. And just last month, the 1st Circuit, in an en banc decision denying a citizen’s claim to a presidential vote in Puerto Rico under multilateral treaties to which the United States is a signatory, referenced the Insular Cases. ASK JOHN ROBERTS JR. The 1st Circuit decision, however, is not my reason for bringing up this century-old problem now. The real reason is the Supreme Court confirmation hearings of John Roberts Jr. When senators attempt to determine Roberts’ views on the most contentious issues of our time, they would do well to inquire about his view on the continued validity of the Insular Cases. Hearing his thoughts would not only shed light on the impact of a Justice Roberts on millions of citizens who — by accident of birth, choice, or circumstance — live in the territories, but would also reveal his view on the extraterritorial application of the Constitution. And that’s an issue with particular relevance now that we hold a considerable number of detainees at the Guantánamo Bay Naval Station in Cuba. Roberts’ opinion on the Insular Cases might even expose his position on the doctrine of incorporation — not to be confused with territorial incorporation — through which the Bill of Rights has been extended to cover the acts of state and local governments. Some conservatives have criticized incorporation as inconsistent with the Framers’ intent. If Roberts is a true judicial conservative, the holding in the Insular Cases should concern him. Nothing in the Constitution distinguishes between incorporated and unincorporated territories. Our Founders would have been appalled by the concept that the nation they were creating could itself become a colonial power. And the doctrine requires the ongoing involvement of judges to determine which rights are “fundamental” enough to apply in the territories. Indeed, the Insular Cases are undeniable examples of judicial activism. To borrow Harlan’s words in Downes, they are ” ‘pure judicial legislation,’ for which there was no warrant in the Constitution or in the powers conferred upon this court.” Perhaps we’ll have to wait until the changing demographics of the United States produce the nomination of the first Hispanic American justice in order to spark reconsideration of the Insular Cases. But it shouldn’t require a particular ethnic heritage to recognize a judicial wrong. If a Justice Roberts leads the Court to overturn these unfortunate precedents, he will affirm Justice Harlan’s promise, in his Plessy dissent, that the “Constitution . . . neither knows nor tolerates classes among citizens.” Those words still hold special resonance in the territories.
Orlando E. Vidal is a counsel in the D.C. office of Sullivan & Worcester.

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