Rewriting Downes v. Bidwell

Authors

• Rose Cuison-Villazor, Rutgers Law SchoolFollow

Abstract

This Essay engages in a thought experiment. Employing the “rewriting” approach to Supreme Court cases recently used by legal scholars, this Essay provides an alternative version of the case considered most important among the Insular Cases—Downes v. Bidwell—where the Supreme Court adopted the territorial incorporation doctrine to hold that Puerto Rico is “foreign to the United States in a domestic sense.” To this day, Downes and the other Insular Cases serve as precedent for the proposition that the constitutional rights of U.S. territorial residents may be treated differently. But how would the Supreme Court have ruled if it employed Critical Race Theory? This Essay provides one possible answer.

Disciplines

Constitutional Law | Law and Race | Law and Society

Recommended Citation

Rose Cuison-Villazor, Rewriting Downes v. Bidwell, 47 Cardozo L. Rev. 1885 (2026).
Available at: https://larc.cardozo.yu.edu/clr/vol47/iss6/10