The Insular Cases

1. The Insular Cases Does the Constitution follow the Flag?

2. The Insular Cases Major cases decided May 27, 1901 (seven): • De Lima v. Bidwell, 182 U.S. 1 (1901) • Goetze v. United States, 182 U.S. 221 (1901) • Crossman v. United States, 182 U.S. 221 (1901) • Dooley v. United States, 182 U.S. 222 (1901) (“Dooley I”) • Armstrong v. United States, 182 U.S. 243 (1901) • Downes v. Bidwell, 182 U.S. 244 (1901) • Huus v. New York and Porto Rico Steamship Co., 182 U.S. 392 (1901)

3. The term “the Insular Cases” denotes anywhere from seven to nine to twenty-three Supreme Court cases. The Insular Cases

4. The Insular Cases “The result of what has been said is that while in an international sense Porto Rico was not a foreign country, since it was subject to the sovereignty of and was owned by the United States, it was foreign to the United States in a domestic sense, because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession.” Downes, 182 U.S. 244, 341-342 (1901) (emphasis added)

5. The Insular Cases “The act is entitled ‘An act to provide a civil government for Porto Rico and for other purposes.’ It does not indicate by its title that it has a purpose to incorporate the island into the Union.” Balzac v. Porto Rico, 258 U.S. 298, 306 (1922)

6. The Insular Cases “This was one of the chief grounds upon which this court placed its conclusion that Alaska had been incorporated in the Union in Rasmussen v. United States, 197 U.S. 516. But Alaska was a very different case from that of Porto Rico. It was an enormous territory, very sparsely settled, and offering opportunity for immigration and settlement by American citizens. It was on the American continent and within easy reach of the then United States. It involved none of the difficulties which incorporation of the Philippines and Porto Rico presents, and one of them is in the very matter of trial by jury.” Balzac v. Porto Rico, 258 U.S. 298, 309 (1922) (Citations omitted)

7. The Insular Cases “It was further settled in Downes v. Bidwell,182 U. S. 244, and confirmed by Dorr v. United States,195 U. S. 138, that neither the Philippines nor Porto Rico was territory which had been incorporated in the Union or become a part of the United States, as distinguished from merely belonging to it; and that the acts giving temporary governments to the Philippines, 32 Stat. 691, and to Porto Rico, 31 Stat. 77, had no such effect.” Balzac v. Porto Rico, 258 U.S. 298, 305(1922)(emphasis in bold added.) (Citations omitted)

8. NINTH CIRCUIT

9. The Insular Cases CNMI v. Atalig, 723 F.2d 682 (9th Cir. 1984) (Due Process/Sixth Amendment)

10. The Insular Cases “The history of incorporation of the Bill of Rights under the Due Process Clause also makes us reluctant to apply Duncan to the Insular Cases. That history reveals that the Court proceeded cautiously with this incorporation. Through this gradual Process in the century following ratification of the Fourteenth Amendment, nearly all the rights guaranteed in the Bill of Rights have been found applicable to the states. We believe that a cautious approach is also appropriate in restricting the power of Congress to administer overseas territories. Were we to apply sweepingly Duncan's definition of "fundamental rights" to unincorporated territories, the effect would be immediately to extend almost the entire Bill of Rights to such territories. This would repudiate the Insular Cases.We are not prepared to do so nor do we think we are required to do so.” Com. of Northern Mariana Islands v. Atalig, 723 F.2d 682, 690 (9th Cir. 1984)(emphasis added)

11. The Insular Cases Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir. 1990) (Equal Protection/Article XII)

12. The Insular Cases “We think it clear that interposing this constitutional provision would be both impractical and anomalous in this setting. Absent the alienation restriction, the political union would not be possible. Thus, application of the constitutional right could ultimately frustrate the mutual interests that led to the Covenant. It would also hamper the United States' ability to form political alliances and acquire necessary military outposts. “For the NMI people, the equalization of access would be a hollow victory if it led to the loss of their land, their cultural and social identity, and the benefits of United States sovereignty. It would truly be anomalous to construe the equal protection clause to force the United States to break its pledge to preserve and protect NMI culture and property. The Bill of Rights was not intended to interfere with the performance of our international obligations. Nor was it intended to operate as a genocide pact for diverse native cultures. “Its bold purpose was to protect minority rights, not to enforce homogeneity. Where land is so scarce, so precious, and so vulnerable to economic predation, it is understandable that the islanders' vision does not precisely coincide with mainland attitudes toward property and our commitment to the ideal of equal opportunity in its acquisition. We cannot say that this particular aspect of equality is fundamental in the international sense. It therefore does not apply ex proprio vigore to the Commonwealth. Accordingly, Congress acted within its power in enacting sections 501(b) and 805 of the Covenant, and Article XII is not subject to equal protection attack.”Wabol v. Villacrusis, 958 F.2d 1450, 1462 (9th Cir. 1990) (emphasis added/internal citation omitted)

13. DOES TIME CHANGE ALL THINGS? Boumediene v. Bush, 553 U.S. 723 (2008)

14. The Insular Cases “It may well be that over time the ties between the United States and any of its unincorporated Territories strengthen in ways that are of constitutional significance. Cf. Torres v. Puerto Rico, 442 U.S. 465, 475-476, 99 S.Ct. 2425, 61 L.Ed.2d 1 (1979) (Brennan, J., concurring in judgment) (“Whatever the validity of the [Insular Cases] in the particular historical context in which they were decided, those cases are clearly not authority for questioning the application of the Fourth Amendment-or any other provision of the Bill of Rights-to the Commonwealth of Puerto Rico in the 1970's”).”  (553 U.S. at 758) Boumediene v. Bush, 553 U.S. 723, 758 (2008) (emphasis added.)

15. The Insular Cases “Third, if the Government's reading of Eisentrager were correct, the opinion would have marked not only a change in, but a complete repudiation of, the Insular Cases' (and later Reid's) functional approach to questions of extraterritoriality. We cannot accept the Government's view. Nothing in Eisentrager says that de jure sovereignty is or has ever been the only relevant consideration in determining the geographic reach of the Constitution or of habeas corpus. Were that the case, there would be considerable tension between Eisentrager, on the one hand, and the Insular Cases and Reid, on the other. Our cases need not be read to conflict in this manner. A constricted reading of Eisentrager overlooks what we see as a common thread uniting the Insular Cases, Eisentrager, and Reid: the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism.” Boumediene v. Bush, 553 U.S. 723, 764 (2008)

16. Panelists • Territory of Guam v. Olsen, 431 U.S. 195 (1977) [H. Trapp] • Chase Manhattan Bank (Nat. Ass’n) v. South Acres Dev. Co., 434 U.S. 236 (1978) [H. Trapp] • Ngiraingas v. Sanchez, 495 U.S. 182 (1990) [P. Mason] • People of the Territory of Guam v. Okada, 694 F.2d 565 (9th Cir. 1982) [H. Trapp] • Com. of Northern Mariana Islands v. Atalig, 723 F.2d 682 (9th Cir. 1984) [W. Fitzgerald] • Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285 (9th Cir. 1985) [W. Fitzgerald]

17. The Insular Cases The Downes Question: Is Guam “foreign to the United States in a domestic sense”?

18. The Insular Cases • The Boumediene Question: Over time, have the “ties” between the United States and Guam strengthened “in ways that are of constitutional significance.”?