The Insular Cases

After acquiring Puerto Rico, Guam, and the Philippines from Spain in 1898 and annexing Hawaii, the United States faced a question the Constitution did not clearly answer: did the Constitution follow the flag to these new possessions? In a group of decisions beginning in 1901, known as the Insular Cases, the Supreme Court said it did only partly. In Downes v. Bidwell, decided May 27, 1901, a divided Court upheld tariffs on goods from Puerto Rico, and Justice Edward Douglass White's concurrence introduced the distinction between incorporated territories, destined for statehood, and unincorporated territories, which belong to but are not a part of the United States.

In later cases the Court adopted White's approach. Under it, only fundamental constitutional rights apply in unincorporated territories, while Congress may decide whether other provisions, such as the right to a jury trial, extend there. In Balzac v. Porto Rico in 1922 the Court held that the Sixth Amendment jury right did not apply in Puerto Rico even though its residents had become citizens. Several opinions in the cases described the inhabitants of the new territories in openly racial terms as alien races unfit for American institutions, language that critics across the political spectrum now condemn.

The doctrine still governs Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands. Justice Neil Gorsuch wrote in United States v. Vaello Madero in 2022 that the Insular Cases rest on a rotten foundation and should be overruled, and Justice Sonia Sotomayor has criticized them as well, but the Court has not overruled them. Some territorial leaders, especially in American Samoa, argue that the flexibility the cases allow protects local cultural practices such as communal land ownership, while others say the doctrine leaves millions of Americans with second-class status.