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Cardozo Law Review

Abstract

This Article examines the language of colonization established in the seminal Supreme Court case of Downes v. Bidwell, which has resulted in America’s five existing overseas territories becoming long-term colonies of the United States. Downes was decided in 1901, and it set up the U.S. Supreme Court’s Insular Cases jurisprudence in which the territories are considered unincorporated into the United States and therefore are subject to Congress’s plenary authority through the Territorial Clause of the U.S. Constitution. The U.S. Supreme Court has had a few opportunities to overrule the Insular Cases but has declined to do so. This Article argues that in failing to overrule the Insular Cases, the Court is virtue signaling its assent to continued colonization of the territories. If the Supreme Court is going to assent to the continued colonization of the territories, then the Court has a duty to ensure that Congress acts responsibly to facilitate the integration of these foreign-domestic spaces as part of the nation, with full constitutional rights being applied to the citizens who live in these territories. This Article examines the concept of the sovereign trustee in international law as one mechanism to achieve this goal.

Disciplines

Constitutional Law | Law and Society

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