Prerequisites: None

Exam Type: Any Day Take-Home

This course will explore the constitutional history of American imperialism and, more specifically, the U.S. Supreme Court’s doctrine of territorial incorporation in light of the so-called Insular Cases.

In 1901, one hundred twenty years ago, the U.S. Supreme Court, in a series of decisions collectively known as the Insular Cases, held that the Constitution does not require extending to the “half-civilized,” “savage,” “ignorant and lawless” and “alien races” inhabiting the Spanish territories acquired in the aftermath of the 1898 Spanish-American War (i.e. Puerto Rico, the Philippines, and Guam) the full panoply of rights and protections available under the federal constitutional text. Thus, the U.S. Constitution did not follow the U.S. flag to these Caribbean and Pacific archipelagos. In reaching this rationale, the Fuller Court (which only two years earlier had concocted Plessy’s infamous “separate but equal” doctrine) relied on a series of articles published in the Harvard Law Review by the leading law professors of the day premised on Kipling’s white man’s burden, O’Sullivan’s manifest destiny, and other now-discredited theories of imperialism and white supremacy.

The legacy of the Insular Cases, in the words of the late Judge Juan Torruella, hovers like a “dark cloud” over nearly every aspect of the lives of 4 million U.S. citizens residing in the U.S. territories today. Although the reasoning of the Insular Cases has long since been discredited, on a par with Dred Scott, the Civil Rights Cases, Plessy, and Korematsu, more than a century later the doctrine of territorial incorporation emanating from this infamous line of cases continues to be “good law.” It is well settled that the federal government—including the federal courts—continues to rely and expand upon these decisions to justify its disparate treatment of American citizens residing in the territories.

Over the last century, the territories have remained at the periphery of the U.S. federal superstructure. Contrary to the 50 states and the Indian tribes, the territories are not sovereigns in the constitutional sense but rather creatures of Congress. It is Congress, pursuant to the U.S. Constitution’s Territorial Clause, that exercises “plenary power” over their internal governance. The territories amount to a hotchpotch of overseas jurisdictions with uneven governmental arrangements — arrangements crafted by Congress during the crisis of global decolonization at the heyday of the Cold War period — but which are patently unsatisfactory (and obviously colonial) today. Moreover, seminal aspects of their relationship with the federal political branches—and particularly the federal courts—remain shrouded in uncertainty.