May the United States rule foreign territories without granting their inhabitants constitutional rights? Yes, according to landmark Supreme Court decisions in the “Insular Cases” more than a century ago. Without those decisions, our overseas territorial empire could not have existed.
Suddenly that decision is under fierce attack from within the Court itself. The fate of America’s five populated colonies — Puerto Rico, the US Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands — may hang in the balance.
In April the Supreme Court decided what seemed to be an abstruse case about federal benefits owed to Puerto Ricans. But Justice Neil Gorsuch’s opinion began with a startling passage. He asserted that the United States has no business deciding anything for Puerto Rico because our ownership of that island — and by extension other US colonies — is unconstitutional.
“A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other territories largely without regard to the Constitution,” Gorsuch wrote. “It is past time to acknowledge the gravity of this error and admit what we know to be true: the Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law. . . . And I hope the day comes soon when the Court squarely overrules them.”
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Those strong words set off a flurry of activity. Three residents of American Samoa were already suing the US government for denying them full citizenship; like residents of other US territories, they cannot vote in presidential elections, are not represented in Congress, and may only pass laws of which the US government approves. Encouraged by what Gorsuch wrote, they have expanded their case and are now asking that the Insular Cases be reversed. If they win, it means that we have no con
