The Insular Cases and the Emergence of American Empire

And Also: Some thoughts on character by the Founders per Trump.

Today's Columbus Day (aka Indigenous People's Day) as well as Thanksgiving in Canada.  We can say the usual about the problems with Columbus, but you know, those "indigenous people" were a mixed bunch (see Aztecs etc.).  We cannot assume that people who were here first for all time have some right over the land or something.  Need to focus on the needs of everyone today.  Finally, there is nothing specifically superior about the people here originally -- if they by some quirk of fate established a nation in Europe, they very well might be the ones bashed today.

There is some connection to all of this and the title book because there too we are concerned with imperialism and the fates of the indigenous peoples. The book deals with a range of cases (the first set decided around the turn of the 20th Century) arising mainly from island possessions connected to the Spanish-American War (Alaska and Hawaii arise as well as does Samoa, which was obtained separately if at around the same time). Let me say upfront that though the subject is interesting, the book itself soon became tedious. There are lots of cases here and after a promising beginning, it became a trudge and a bit confusing to keep track of them.

The United States had numerous times to deal with new territories, including those involving the civil law / French and Spanish people of somewhat different cultures than ours.  Though the book shows even here (e.g., Latinos in the Southwest) were not trusted, all the same, they were basically European and seen as able to be brought in effect on equal footing. After the Mexican War, e.g., we didn't have concerns that Mexicans could not handle jury trials.  See also, though various ways of course were available to "deal with it," newly freed slaves after the Civil War.  The Supreme Court in fact dealt with the rights of black jurors at this time.  There was no constitutional argument set forth by the Court (if one by some in society) for some lag time to adapt.

In 1820, the Supreme Court dealing with D.C. broadly dealt with the situation of: "permitting the representatives of the American people, under the restrictions of our Constitution, to tax a part of the society which is either in a state of infancy advancing to manhood, looking forward to complete equality so soon as that state of manhood shall be attained." Speaking of an "American empire," the term "United States" even then was defined as "composed of states and territories." This was Chief Justice Marshall, a nationalist, but his successor -- in an otherwise of course dubious opinion -- similarly treated territories as equal to states in respect to general rights in Dred Scott v. Sandford. Thus, a person born in New Mexico Territory after the Fourteenth Amendment was still an American citizen at birth without naturalization.  It was part of the "United States." 

[Note that "equality of states" was also not just some neo-Confederate theme. The problem with the Shelby voting rights case is not that but the legitimate power to treat states differently given the differences some have as to voting discrimination. The special preclearance rule in place is of special significance but is "appropriate" given the need of the situation.]

Fast forward. Boumediene v. Bush, the final Gitmo case addressed the Insular Cases to explain why a new rule was developed:

The Court thus was reluctant to risk the uncertainty and instability that could result from a rule that displaced altogether the existing legal systems in these newly acquired Territories. [cite] (“It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws and customs of the people, and from differences of soil, climate and production … ”)

Ditto Reid v. Covert, the 1950s case that held the American citizens overseas should have the same rights as civilians at home: "These territories, governed and regulated by Congress under Art. IV, § 3, had entirely different cultures and customs from those of this country." But, Louisiana had "different cultures and customs" in relevant fashion respecting civil v. common law courts, but that wasn't the idea in 1803.  The reference in the final Insular case (1922, summing up the final principle that Congress has the power to determine if a territory is "incorporated" and thus worthy of full rights, basically amounting to jury and voting rights, the latter discussed in a John Oliver segment) noted:

Congress has thought that a people like the Filipinos, or the Porto Ricans, trained to a complete judicial system which knows no juries, living in compact and ancient communities, with definitely formed customs and political conceptions, should be permitted themselves to determine how far they wish to adopt this institution of Anglo-Saxon origin, and when.

Or, as the justice that announced the opinion in Downes v. Bidwell (the concurrence provided the ultimate accepted theory), "possessions are inhabited by alien races."  Yeah.  Many of the original cases also dealt with the nuances of tariff and other taxation, including the provision that "all duties, imposts, and excises shall be uniform throughout the United States."  This provided another wrinkle.  Finally, there was the general flexibility desired for imperial possessions, that unlike in Marshall and Taney's day were not necessarily going to eventually become states.  As Justice White noted in concurrence, pragmatic reality warranted a new rule:

Conceding that the conception upon which the Constitution proceeds is that no territory, as a general rule, should be acquired unless the territory may reasonably be expected to be worthy of statehood, the determination of when such blessing is to be bestowed is wholly a political question, and the aid of the judiciary cannot be invoked to usurp political discretion in order to save the Constitution from imaginary or even real dangers. The Constitution may not be saved by destroying its fundamental limitations.

Or, so was the thought at the time. Of course, it is not necessary a given that such a path be taken. The early cases were often split 5-4 with not only Justice Harlan alone in noting repeatedly the Constitution spoke of "people" not places here in respect to rights.  If newly freed slaves could adapt to "Anglo-Saxon" legal institutions, why couldn't those in Puerto Rico, the Philippines and so forth?  Is being on a jury or a unanimous jury requirement really so complicated for locals not to have a right deemed of fundamental importance to the founding generation?

At any rate, as John Oliver noted, even then there was this qualifier: "may for a time be impossible, and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out and the blessings of a free government under the Constitution extended to them."  That was over a hundred years ago.  Aren't we due?  It unclear what is left of the cases today.  Again, even then, there was this dictum of unclear reach:

We suggest, without intending to decide, that there may be a distinction between certain natural rights enforced in the Constitution by prohibitions against interference with them and what may be termed artificial or remedial rights which are peculiar to our own system of jurisprudence. Of the former class are the rights to one's own religious opinions and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's own conscience; the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice, to due process of law, and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments, and to such other immunities as are indispensable to a free government.

This amounts to a hint of substantive due process, which was recognized to exist to some degree by the Supreme Court at this time. Again, putting aside the then quite important issue of limits of taxation power, the core issue here were political rights. Juries were understood to be included there as seen by such things as juries being "polled."  Again, to continue:

Of the latter class are the rights to citizenship, to suffrage, Minor v. Happersett, 21 Wall. 162, and to the particular methods of procedure pointed out in the Constitution which are peculiar to Anglo-Saxon jurisprudence, and some of which have already been held by the states to be unnecessary to the proper protection of individuals.

Again, Balzac v. Porto Rico (1922) spoke of "guaranties of certain fundamental personal rights declared in the Constitution" and thus today people in Guam have abortion rights and Puerto Rico the right to same sex marriage.  Boumediene v. Bush showed that even in Gitmo rights to "due process" that case alluded to applies as well per habeas protections.  You did not need to be an American citizen to have them.  Thus, today, putting aside citizenship, it is unclear the reach of those opinions today. Still, e.g., in American Samoa not only are you merely a "national" but certain groups have special land rights, equal protection of the laws not fully honored. Locals there voiced a desire not to be American citizens though it is unclear there is no way to protect basic equality more all the same even with some local discretion in various respects.

A final concern, as noted in the John Oliver piece, are voting rights.  The general expectation that territories would eventually become states does arise there, but the Constitution does allow an extended territorial period where people are not represented by voting members of Congress or are able to vote (via electoral votes) for President.  Of course, this can cause problems, as seen by the eventually felt need for an amendment to protect (up to a point) the rights of those in D.C. to vote for President.  It is unclear why such a need -- after a century -- is not present in other island possessions.  The "may for a time" bit there is more of a moral command, since the Constitution sets up a certain system based on statehood to apply such voting rights.  The same can apply, per a case just last term, if Puerto Rico wants to be fully treated as a sort of state dual sovereign" rule).

The circle back to the holiday, handling Native Americans and tribal rights has been a long and somewhat convoluted process. But, Native Americans in the fifty states were naturalized. At the very least, they can vote for President though their ability to local home rule (including in respect to outsiders, as shown by a 4-4 case involving a civil liability issue last term) sometimes leaves something to be desired.  The correct approach there, especially if the tribe only has a tiny population is complicated.  A bit different when you are dealing with Puerto Rico, which has more people than many states.  Other regions also has sizable populations.

The matter should be pressed.