Insular Cases and the Supreme Court

DATE: 1901–1904

ISSUE: Territories and new states

SIGNIFICANCE: The Supreme Court, in its decisions on various islands seized during the Spanish-American War, determined the applicability of the Constitution and the Bill of Rights to overseas territories.

The fourteen cases regarded as the Insular Cases arose out of the seizure of various island territories—including Puerto Rico, Guam, and the Philippines—in the 1898 Spanish-American War. Partisan political issues played a role in that Democratic presidential candidate William Jennings Bryan opposed the taking of these territories, and the Republicans defended their acquisition by the administration of President William McKinley. McKinley’s decisive victory in the 1900 presidential campaign seemed to indicate broad support for the acquisition of these islands, and many believe it influenced the Court’s willingness to accommodate the administration with favorable rulings.

In addition to partisanship, differing legal and historical concepts influenced the Court’s decisions. Historically, new territories eventually became states; however, many Americans believed that the newly acquired islands were inhabited by people of other races, who would not become suitable US citizens. Also, deep in the background was the issue of the proper relationship of the Bill of Rights to states and territories under early incorporation debates under the Fourteenth Amendment, as set out in Chicago, Burlington, and Quincy Railroad Co. v. Chicago (1897) and Chicago, Milwaukee, and St. Paul Railway Co. v. Minnesota (1890).

The Supreme Court first addressed whether Puerto Rico remained foreign for tariff purposes in De Lima v. Bidwell (1901). The court sidestepped certain other questions, such as taxing imports, by holding that congressional enactments on imports from foreign countries did not apply because the territories in question were no longer foreign nations. However, the question of duties on goods brought from Puerto Rico into the United States was more complex. Once military occupation ended, the question was whether Congress could continue to impose duties on goods moving between Puerto Rico and the mainland. If Puerto Rico were not foreign, then any duties would have to be “uniform throughout the United States,” as Article I, Section 8, requires. Justice Henry B. Brown, writing in Downes v. Bidwell (1901), attempted to resolve this by reasoning that Puerto Rico was not “foreign” but also not a part of the “United States” for purposes of the Constitution’s revenue clauses. Justice Edward D. White, concurring with three other judges, found this view too narrow and held that the Constitution applied to a territory only after Congress had incorporated it.

Despite its ambiguity, Justice White’s formulation gradually became the accepted view. The island cases as a whole represent a confused and, at times, incoherent statement. The court tried to give the federal government broad power over foreign affairs, but this had domestic consequences, some of which continued to occupy the Court throughout the twentieth and twenty-first centuries, and the doctrine of territorial incorporation still guides how the Constitution applies in US territories. While congressional legislation granted the unincorporated US territories of Guam, the Virgin Islands, and Puerto Rico, as well as the Commonwealth of the Northern Mariana Islands, birthright US citizenship at different times by congressional action, by the early 2020s, the residents of the unincorporated territory of American Samoa, ceded to the United States in the early 1900s, still were not recognized as birthright US citizens and instead were classified as US nationals.

In 2022, the Supreme Court declined to reconsider Fitisemanu v. United States in which people born in American Samoa argued they should have birthright citizenship. Contending that they were treated as “second-class citizens”—unable to hold public office or vote—three plaintiffs residing in the United States but born in American Samoa brought their case for birthright citizenship and the overturning of the Insular Cases to the Supreme Court, after a federal appeals court ruled against them, citing the Insular Cases as precedent. While the American Samoan government expressed concerns about granting birthright citizenship to American Samoans, Justice Neil Gorsuch previously stated that the Insular Cases should be reconsidered, as they were rooted in racist ideology rather than grounded in the Constitution. However, in 2022, the court announced it would not take the case. In April 2023, the House of Representatives introduced H.Res. 314. This resolution rejected the Insular Cases and affirmed that constitutional and democratic principles apply throughout all US states and territories. However, this resolution was a symbolic and political statement rather than a change in law, and no federal law has overturned the Insular Cases. Legal scholars and advocacy groups continued to call for the reconsideration of these cases, highlighting their colonial and racially discriminatory origins.

Bibliography

Balser, Jimmy, et al. “Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (June 26, 2023–July 2, 2023), Part 2.” Congress.gov, 3 July 2023, www.congress.gov/crs-product/LSB10996. Accessed 10 Apr. 2026.

De Vogue, Ariane. “Supreme Court Declines to Take Up Effort to Secure Birthright Citizenship for American Samoans.” CNN, 17 Oct. 2022, www.cnn.com/2022/10/17/politics/american-samoans-birthright-case-supreme-court/index.html. Accessed 10 Apr. 2026.

“The Insular Cases and the Doctrine of the Unincorporated Territory and Its Effects on the Civil Rights of the Residents of Puerto Rico: Overview Memorandum – Part I.” Puerto Rico Advisory Committee to the U.S. Commission on Civil Rights, 12 Feb. 2024, www.usccr.gov/files/2024-02/english_pr-ac_memo-1.pdf. Accessed 10 Apr. 2026.

Kerr, James E. The Insular Cases: The Role of the Judiciary in American Expansionism. Kennikat Press, 1982.

LaFeber, Walter. The New Empire: An Interpretation of American Expansion, 1860–1898. 35th anniversary ed., Cornell UP, 1998.

Quinn, Melissa. “Supreme Court Turns Away Case Involving Birthright Citizenship for American Samoans.” CBS News, 17 Oct. 2022, www.cbsnews.com/news/supreme-court-birthright-citizenship-american-samoa-insular-cases. Accessed 10 Apr. 2026.

Walsh, Colleen. “Reexamining the Insular Cases. Again.” Harvard Law Bulletin, 3 May 2024, hls.harvard.edu/today/reexamining-the-insular-cases-again. Accessed 10 Apr. 2026.