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Cardozo Law Review

Abstract

The past decade witnessed an unprecedented renaissance in interest in the constitutional treatment of U.S. territories. Once derided as “a marginal debate about marginal places” or “‘a footnote within a footnote’ of an already niche field,” law journals published a staggering seventy articles between 2022 and 2023 focused on the law of the territories. The American Bar Association, whose founder Simeon Baldwin played an instrumental role in laying the foundations for the racist Insular Cases, and which itself actively discriminated against the territories for more than a century, passed numerous resolutions repudiating many of its past positions. Even Congress, after seemingly neglecting the territories for decades, held its first-ever hearing on the Insular Cases with legislators from both political parties expressing support for overturning them. The Supreme Court of the United States likewise took a renewed interest in the territories during this period, granting certiorari in five cases concerning the constitutional relationship between the federal government and Puerto Rico. But few view this as a positive development: In each case, the Supreme Court ruled against Puerto Rico’s interests. Many consider the resulting opinions as “expand[ing] upon and solidify[ing] the evil that the Insular Cases introduced into our jurisprudence: permanent American colonialism.” Some even go so far as to label these decisions “the new Insular Cases.” At a time when the rest of the legal profession appears ready to reject the Insular Cases, territorial rights activists and scholars largely perceive the current Supreme Court as an enemy rather than an ally, creating new precedents that eschew the naked racism of the Insular Cases but seemingly reach the same result. This Essay challenges that understanding. These five Supreme Court decisions—more aptly dubbed the “Puerto Rico cases” 11—may not reach the results preferred by Puerto Rico or many territorial-rights scholars, but they certainly do not “solidify” the Insular Cases or enable “permanent American colonialism.” And the reasoning that underlies these decisions is both highly narrow and cannot fairly be described as simply the Insular Cases repackaged without the baggage of racism. Importantly, in four of the five cases, Puerto Rico’s territorial status was ultimately immaterial to the outcome; the Court could have reached the same result, through substantially the same reasoning, had the cases arisen in Iowa or California. In fact, “the cracks in the doctrinal edifice” built on the foundation of the Insular Cases “have become sufficiently apparent to prompt a number of individual Justices to call for change” in separate opinions in these very cases.

Disciplines

Constitutional Law | Law and Society

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