The Insular Cases
I concluded my previous post by mentioning Pedro Albizu Campos, the most dominant personality of the Puerto Rican nationalist movement. But before we can return to him, we must turn our attention to the turn-of-the-century, and a series of little known, little discussed legal cases that had massive implications for the subjects of America’s empire.
The Insular Cases
The Insular Cases are a series of opinions delivered by the US Supreme Court in 1901, concerning the fate of the territories acquired by America during the Spanish-American War of 1898 and its immediate aftermath. The primary question around which the judgments revolved were whether the citizens of the newly acquired territories were citizens of America, with all the rights and duties that entailed, or mere subjects of a colonial empire.
It is significant that these questions concerning citizenship cropped up only in 1898, because, after all, the United States was so no stranger to increasing its dominions by forceful methods. In 1848, in the wake of its victory in the Mexican American War, it added 900,000 square miles of land to its territory. In 1867, it purchased an even bigger chunk of land in the form of Alaska from the Russian empire. Finally, in 1898, in addition to the former Spanish colonies America annexed Hawaii, Wake Island and American Samoa.
The key difference between the annexations prior to 1898 and the annexations after it lie not in the land added, but in terms of the population , specifically the non-white population.
While the lands seized from Mexico increased the country’s area by more two-thirds,the Indians and Mexicans inhabiting these lands increased the country’s population only by 1.5%. This was entirely intentional. In 1848, certain Members of Congress had advocated annexing Mexico entirely. Militarily, this was completely feasible. But this proposal met fierce political resistance, on the grounds that it was impossible to expect that the “free white race”should have to associate itself on equal terms with the colored population of Mexico. Thus, the United States drew the new boundary line between itself and Mexico in such a manner that it got (as one newspaper put it) “all the territory we can get without taking the people.”
But in 1898, things were quite different. Spain’s colonies were not at all sparsely settled; the combined population of the Philippines, Puerto Rico and Guam reached almost 8 million, amounting to more than 10% of the US population. This incompatibility with America’s previous territorial gains was described by one writer in the following terms: “ It is one thing to admit scattered communities of white, or nearly white, men into the rights of citizenship but quite a different matter to act in the same way with a closely packed and numerous brown people.”
Herein lies the importance of the Insular cases. They answered the questions of whether or not the inhabitants of the newly acquired territories were citizens. The actual disputes which reached the Supreme Court were surprisingly trivial; one of the first of the Insular Cases ( Downes v. Bidwell), concerned the question of whether an importer shipping oranges from Puerto Rico to New York had to pay an import tariff. But behind this lay a deeper question. The US Constitution prohibits taxing commerce between parts of the United States, hence if importers had to pay tariffs while shipping goods from Puerto Rico to the mainland, it would imply that Puerto Rico was not a part of the United States.
The government, while defending its right to collect the tariffs, stated its position in no unambiguous terms. The Attorney General openly referred to the overseas territories as “Colonies”, and furthermore stated that it was imperative that the government be able to rule its possessions as colonies. He asked that if, (in the prevailing imperial mood) the United States were to annex, say, Egypt, or “ a section of the Chinese empire”. It would be ludicrous to have to apply the Constitution to these places. After all, “ A great world power…. must not be bound by rules too strict or too confining.”
The Court agreed. In Downes v. Bidwell, the majority judgement affirmed that the newly annexed territories were not properly part of the United States for Constitutional purposes related to revenue, administration etc.
Primarily, the Insular Cases refer to nine cases judged in 1901 concerning the US territories. Six of the nine cases concern Puerto Rico only. Together, they created a doctrine allowing for the United States colonial expansion and governance. It was in Downes v. Bidwell that the distinction between “Incorporated” and “Unincorporated” Territories was first made. The Supreme Court stated that all territorial rights were at Congress’s discretion. If it wished, Congress could “incorporate” territories into the Union, and bring them under the protection of the Constitution. These judgments split the country into what one justice called “practically two national governments”, one bound by the Bill of Rights, the other not.
The Insular Cases were also explicitly about race. The main majority decisions contained warnings about including “savages” and “alien races” within the constitutional framework.
At the time, the cases attracted great public attention. The announcement of the judgement of Downes v. Bidwell attracted the largest public crowd in Supreme Court history. Since then, they have become far less well known. Their judgments have been criticized, but never overturned or even contested. In fact, they have repeatedly been cited as legal precedent. In 1922, the Supreme Court, on the basis of the Insular Cases, decided that Puerto Ricans lacked the right to trial by jury.
The influence of the Insular Cases is felt to the present day. All the territories that the Court deemed “incorporated” ( for example Alaska and Hawaii) have become states. All the territories it deemed “Unincorporated” remain territories. In these territories, the Constitution does not apply. In the words of Chief Justice Fuller, they exist like a “ disembodied shade, in an intermediate state of ambiguous existence for an indefinite period.”
