Decolonizing the United States: The Case for Overturning the Insular Cases
Providence, RHODE ISLAND — Over 3.5 million Americans currently live in the United States territories, a number that is roughly equivalent to the populations of the five smallest states combined. These residents of Puerto Rico, Guam, American Samoa, the US Virgin Islands, and the Northern Mariana Islands exist in a type of legal limbo—undoubtedly part of the United States, yet denied the full rights afforded to US citizens born in one of the 50 states.
The legal basis for this system was established by the Supreme Court in the early 1900s when they ruled in the Insular Cases that the Constitution does not fully apply to “unincorporated” territories. While the Territory Clause of the Constitution allows for territorial incorporation, thereby enabling US settler colonialism, territory status was generally thought of as a temporary designation on the path to statehood.
By inventing the term “unincorporated territory,” the court created an alternate pathway of indefinite colonial administration. Struggling to decide how to handle the large swaths of territory acquired after the Spanish-American War, the Court was heavily influenced by fears of non-white populations joining the country with Justice Brown warning in Downes v. Bidwell that “savages” and “alien races, differing from us” might become “entitled to all the rights, privileges and immunities of citizens.” While widely recognized as misguided and racist, the Insular Cases continue to subject the residents of the US territories, 98 percent of whom are “racial or ethnic minorities,” to second-class status.