Speaker 1: Happy Saturday. Coming up on the show, we have an
Speaker 1: episode about citizenship in the US and who is allowed
Speaker 1: to become a citizen that has some connections to our
Speaker 1: August fourteenth, twenty twenty three episode on the Insular Cases,
Speaker 1: which was a set of Supreme Court cases related to
Speaker 1: island territories claimed by the US, and that is today's
Speaker 1: Saturday classic. In this episode, we mentioned the case of
Speaker 1: Isabelle Gonzalez, and I mentioned wishing I had focused the
Speaker 1: whole episode on her case before the Supreme Court. We
Speaker 1: did do that episode not long after this when it
Speaker 1: came out on September twentieth, twenty twenty three. And this
Speaker 1: episode also briefly mentions the Philippines becoming independent from the
Speaker 1: US after World War Two, and we talked about that
Speaker 1: more in our episode on Marie Arosa on May eighth,
Speaker 1: twenty twenty four. But enjoy Welcome to Stuff You Missed
Speaker 1: in History Class, a production of iHeartRadio. Hello, and welcome
Speaker 1: to the podcast. I'm Tracy V. Wilson and I'm Holly Frying.
Speaker 1: Today we're going to talk about some US Supreme Court cases,
Speaker 1: although not comical ones like Nicks versus Headen, which we
Speaker 1: covered recently and was about tomatoes. We are going to
Speaker 1: be talking more about tariffs, though this time. It's a
Speaker 1: collection of cases that followed the Spanish American War, and
Speaker 1: these cases together limited the rights of people living in
Speaker 1: certain US territories. These cases still stand today. They still
Speaker 1: affect the lives and civil rights of people in places
Speaker 1: like American Samoa, Guam, the Northern Mariana Islands, Puerto Rico,
Speaker 1: and the US Virgin Islands. So people who were born
Speaker 1: in all of these territories, with the exception of American Samoa,
Speaker 1: are considered US citizens by birth, but while living on
Speaker 1: any of these Annamese island ritories, they don't have the
Speaker 1: same constitutional rights or representation in Congress as citizens who
Speaker 1: live in one of the fifty States. Some of those
Speaker 1: court cases involved the Philippines also, that was a US
Speaker 1: territory at the time but has since become independent. So
Speaker 1: together these cases are known as the Insular cases with
Speaker 1: insular meaning related to islands, and they were in the
Speaker 1: news last year because the US Supreme Court declined to
Speaker 1: her case that was challenging them. Before we start with this,
Speaker 1: I want to note there's a whole range of opinion
Speaker 1: in all of these places about their relationships to the
Speaker 1: United States, Like, for example, there are American Samoans who
Speaker 1: think that they should be considered US citizens from birth,
Speaker 1: but then others who think that would erase their existing
Speaker 1: culture and traditions. Or as another example, there is a
Speaker 1: movement for Puerto Rican statehood that's been going on for decades,
Speaker 1: but there are also people who opposed that move met,
Speaker 1: with some of the opponents advocating instead for an independent
Speaker 1: Puerto Rico. So this episode is really focused on the
Speaker 1: court cases and the context around them. It is not
Speaker 1: about the lived experiences and opinions of the people living
Speaker 1: in all of these territories. I don't think the two
Speaker 1: of us are the best people to try to like
Speaker 1: embody that no, and even if we were, I feel
Speaker 1: like that is a podcast of its own and not
Speaker 1: an episode of art, not an episode of ours. For sure,
Speaker 1: Before we talk about these cases, we need to set
Speaker 1: the stage on how the US had approached its territories
Speaker 1: before the Spanish American War. The original borders of the
Speaker 1: United States were set under the seventeen eighty three Treaty
Speaker 1: of Paris, which formally ended the Revolutionary War between Britain
Speaker 1: and its North American colonies. This treaty did not acknowledge
Speaker 1: the indigenous nations and peoples who had been in North
Speaker 1: America for thousands of years prior to europeans arrival, or
Speaker 1: contain any reference to born of their own lands and territory.
Speaker 1: For a time, the Articles of Confederation formed the basis
Speaker 1: for the US government. These were ultimately replaced by the
Speaker 1: US Constitution, which went into effect on March fourth, seventeen
Speaker 1: eighty nine. The Constitution didn't include anything specifically about adding
Speaker 1: new territory to the United States, but it did include
Speaker 1: language about adding states an Article four, Section three quote,
Speaker 1: New states may be admitted by the Congress into this Union.
Speaker 1: But no new state shall be formed or erected within
Speaker 1: the jurisdiction of any other state, nor any state be
Speaker 1: formed by the junction of two or more states or
Speaker 1: parts of states, without the consent of the legislatures of
Speaker 1: the states concerned, as well as of the Congress. Section
Speaker 1: three also included language about territory that was not considered
Speaker 1: part of a state. Quote, the Congress shall have power
Speaker 1: to dispose of and make all needs needful rules and
Speaker 1: regulations respecting the territory or other property belonging to the
Speaker 1: United States, and nothing in this Constitution shall be so
Speaker 1: construed as to prejudice any claims of the United States
Speaker 1: or any particular state. Soon, new states were being added
Speaker 1: to the Union. The first state that wasn't one of
Speaker 1: the thirteen original colonies was Vermont in seventeen ninety one.
Speaker 1: Kentucky became a state in seventeen ninety two from land
Speaker 1: that had previously been considered part of Virginia. Tennessee became
Speaker 1: a state four years later, formed from the Southwest Territory
Speaker 1: that was land that North Carolina had ceded to the
Speaker 1: federal government. Ohio joined the Union in eighteen oh three
Speaker 1: and was formed from part of the Northwest Territory. With
Speaker 1: the exception of Vermont, which had considered itself an independent
Speaker 1: republic before becoming a state, these newly added states had
Speaker 1: all been formed from organized incorporated territory that it was
Speaker 1: already considered to be within the US borders under the
Speaker 1: Treaty of Paris. So incorporated in this case means that
Speaker 1: the territory is considered to be fully part of the
Speaker 1: US under the Constitution, and the only parts of the
Speaker 1: Constitution that don't apply to incorporated territory are articles that
Speaker 1: specifically apply to the states. Organized means that Congress had
Speaker 1: passed an organic act or a body of laws establishing
Speaker 1: a government, and usually a bill of rights for the territory. So,
Speaker 1: for example, the Northwest Territory was unorganized before Congress passed
Speaker 1: the Northwest Ordinances. The Northwest Ordinances of seventeen eighty seven
Speaker 1: also outlined a process for the territory to be admitted
Speaker 1: into the Union as no less than three and no
Speaker 1: more than five states. When the United States started acquiring
Speaker 1: new territory, that new territory was also incorporated. The first
Speaker 1: big addition of land to the United States was the
Speaker 1: Louisiana Purchase in eighteen oh three. The Treaty of Session
Speaker 1: that was part of the Louisiana Purchase agreement said, quote,
Speaker 1: the inhabitants of the sated Territory shall be incorporated in
Speaker 1: the Union of the United States, and admitted as soon
Speaker 1: as possible according to the principles of the Federal Constitution,
Speaker 1: to the enjoyment of all these rights, advantages, and immunities
Speaker 1: of citizens of the United States. Florida was also incorporated
Speaker 1: when it became part of the United States under the
Speaker 1: Adam Zonice Treaty, which took effect in eighteen twenty one.
Speaker 1: States formed from these territories were added to the Union,
Speaker 1: following the same basic template that had been outlined in
Speaker 1: the Northwest Ordinance of seventeen eighty seven. As the nineteenth
Speaker 1: century continued, the United States approach to expansion was described
Speaker 1: as manifest destiny. That's a term first used in writing
Speaker 1: in eighteen forty five as part of an argument that
Speaker 1: the United States should annex the Republic of Texas. This
Speaker 1: came to mean the United States was destined to expand
Speaker 1: across the whole of North America, and this idea framed
Speaker 1: the United States expansion as necessary and inevitable, and as
Speaker 1: the nation's duty. This also was connected to a series
Speaker 1: of removals, wars, and genocidal policies against the indigenous nations
Speaker 1: of North America, in which tens of thousands of people
Speaker 1: were forced to leave their homelands and move to land
Speaker 1: known as Indian Territory west of the Mississippi River, primarily
Speaker 1: in what is now Oklahoma. Support for the philosophy of
Speaker 1: manifest destiny was not as universal as it sometimes described.
Speaker 1: There were people within and outside of the US government
Speaker 1: who argued against such aggressive expansion, and there were people
Speaker 1: of a range of backgrounds, races, ethnicities, and religions who
Speaker 1: didn't want the place they were already living to be
Speaker 1: annexed or purchased by the United States for all kinds
Speaker 1: of reasons. Thousands of indigenous people also died as a
Speaker 1: result of the force removals that were involved in making
Speaker 1: way for this expansion. But the underlying assumption was that
Speaker 1: any territory the US was acquiring would become one or
Speaker 1: more states. Assumption is not even a strong enough word.
Speaker 1: It was obvious and unquestioned that newly acquired territory would
Speaker 1: be admitted into the Union as states. There were debates
Speaker 1: about whether slavery would be allowed in newly organized territory
Speaker 1: and newly admitted states, and a number of compromises and
Speaker 1: appeasements maintained a balance between slave states and free states
Speaker 1: in Congress, but there was really no debate about whether
Speaker 1: this new territory was on a path to statehood. There
Speaker 1: was no sense at all that a territory could be unincorporated.
Speaker 1: The only real exception to this pattern involved the islands
Speaker 1: that were claimed under the Guano Islands Act of eighteen
Speaker 1: fifty six. This act allowed US citizens to claim uninhabited
Speaker 1: islands as sources of guano or bird poop, so these
Speaker 1: islands didn't need to be incorporated they did not have
Speaker 1: a permanent human population. Alaska's status was also kind of
Speaker 1: vague for a while after the US purchased it from
Speaker 1: Russia in eighteen sixty seven. The US made this purchase
Speaker 1: just two years after the end of the Civil War,
Speaker 1: it was still in the middle of trying to rebuild itself.
Speaker 1: In Secretary of State William H. Seward's decision to buy
Speaker 1: Alaska was widely criticized and lampooned. Alaska was organized as
Speaker 1: the District of Alaska in eighteen eighty four, but at
Speaker 1: the very end of the nineteenth century, the United States
Speaker 1: acquired territory that it didn't necessarily want to incorporate. We're
Speaker 1: going to get to that after we have a sponsor break.
Speaker 1: The United States approach to its territories really shifted during
Speaker 1: and after the Spanish American War. This war evolved from
Speaker 1: Cuba's struggle for independence from Spain, and it was also
Speaker 1: influenced by sensationalized news reporting in the United States and
Speaker 1: the explosion of the USS Maine in Havana Harbor on
Speaker 1: February fifteenth, eighteen ninety eight. The Treaty of Paris that
Speaker 1: formally ended the Spanish American War was signed on December tenth,
Speaker 1: eighteen ninety eight. It recognized Cuba as an independent nation
Speaker 1: while giving the United States control of Puerto Rico and Guam.
Speaker 1: Under the treaty, the United States was also allowed to
Speaker 1: purchase the Philippines from Spain, which it did, although the
Speaker 1: Philippines had declared its own independence, and the US takeover
Speaker 1: of the Philippines sparked the two year Philippine American War.
Speaker 1: There are many treaties of Paris. This is obviously a
Speaker 1: different one than the one that formerly ended the Revolutionary War.
Speaker 1: Paris is where all the cool treaties, where we always
Speaker 1: go to negotiate a peace. I mean, yeah, any excuse
Speaker 1: to go to Paris. While the Spanish American War was ongoing,
Speaker 1: the United States had also annexed Hawaii. For some very
Speaker 1: brief context on that, in eighteen seventy five, the US
Speaker 1: and the Kingdom of Hawaii had signed a reciprocity treaty
Speaker 1: that allowed Hawaii to freely export goods like sugar, to
Speaker 1: the US. In exchange, the US took control of an
Speaker 1: area known as Puuloa, now home to the Pearl Harbor
Speaker 1: Naval Base. This treaty led to a huge explosion in
Speaker 1: the sugar industry in Hawaii, driven by US business interests,
Speaker 1: which made the Hawaiian economy increasingly dependent on these exports. Then,
Speaker 1: in eighteen ninety three, Sandford Dole, a lawyer who was
Speaker 1: born in Hawaii to American parents, led a committee of
Speaker 1: sugar planters and other American businessmen to overthrow the Hawaiian
Speaker 1: monarchy with the backing of the US military. Dole petitioned
Speaker 1: the US to annex Hawaii in eighteen ninety four, and
Speaker 1: one reason the US did so four years later was
Speaker 1: to ensure that it did not lose control of Pearl
Speaker 1: Harbor while fighting a war with Spain. That is like
Speaker 1: the most brief abridged synopsis, and we're about to have
Speaker 1: another one, because then in eighteen ninety nine, the US
Speaker 1: took control of part of the Samoan Archipelago, again incredibly briefly.
Speaker 1: In the nineteenth century, Germany, Britain, and the US all
Speaker 1: established business interests in Samoa and became heavily involved in
Speaker 1: Samoan politics. Each of these nations backed different political factions,
Speaker 1: and when a civil war began in eighteen eighty nine,
Speaker 1: one side was backed by the US and the other
Speaker 1: was backed by Germany. The first phase of fighting ended
Speaker 1: in eighteen eighty nine, mostly because most of the Western
Speaker 1: Powers ships were either damaged or destroyed in a cyclone.
Speaker 1: Violence resumed in eighteen ninety three, continuing for about a year,
Speaker 1: again with Germany and the US backing opposing factions. Then,
Speaker 1: when maritoa lal Peppe, leader of Samoa died in eighteen
Speaker 1: ninety eight, the Chief Justice who issued the decision on
Speaker 1: who his successor would be was an American citizen, so
Speaker 1: a lot of Samoans and Germans in Samoa opposed this decision.
Speaker 1: This led to renewed hostilities. Ultimately, Britain, the United States,
Speaker 1: and Germany negotiated the Tripartite Convention without the involvement of Samoans,
Speaker 1: and this partitioned the archipelago between the United States and Germany.
Speaker 1: Just as a note, German Samoa was placed under control
Speaker 1: of New Zealand after World War One. It became independent
Speaker 1: in nineteen sixty two. The US portion still US territory,
Speaker 1: so By eighteen ninety nine, the US had taken control
Speaker 1: of Puerto Rico, Guam, the Philippines, and part of Samoa,
Speaker 1: and it had a number of reasons to want access
Speaker 1: to territory in the Caribbean and the Pacific. Many of
Speaker 1: these islands had strategic military importance and could also serve
Speaker 1: as refueling points for trading ships. Investors saw range of
Speaker 1: agricultural and commercial opportunities. This was also happening as the
Speaker 1: Panama Canal was being built, a project that the US
Speaker 1: took over just a few years after taking control of
Speaker 1: these new territories, so people were seeing new potential for
Speaker 1: international shipping. There was also an argument for the US
Speaker 1: to take over these islands that was explicitly racist, that
Speaker 1: they were not capable of governing themselves, so the United
Speaker 1: States needed to take them over. An argument not to
Speaker 1: keep control of all of these islands was also racist.
Speaker 1: There were basically people who didn't want islands full of
Speaker 1: people who were predominantly indigenous or Hispanic to suddenly become
Speaker 1: US citizens. In some cases, religious prejudice was also a factor,
Speaker 1: since some of these areas were predominantly Catholic. This can
Speaker 1: seem like an odd argument considering that the US had
Speaker 1: already incorporated a lot of territory in North America that
Speaker 1: had previously been colonized by Spain and had some demographic
Speaker 1: similarities to these islands, like under the Treaty of Guadalupe
Speaker 1: Hidalgo that ended the Mexican American War in eighteen forty eight,
Speaker 1: Mexico ceded more than half its territory to the US.
Speaker 1: People living there had been given a year to decide
Speaker 1: if they wanted to become US citizens, and by the
Speaker 1: time the Spanish American War ended, multiple states had been
Speaker 1: formed from that territory. But as an example, when California
Speaker 1: became a state in eighteen fifty, formed from territory that
Speaker 1: had been part of Mexico, it had a population of
Speaker 1: about ninety two thousand people. Meanwhile, at the end of
Speaker 1: the Spanish American War, the population of Puerto Rico was
Speaker 1: more than ten times that, and there were roughly seven
Speaker 1: million people living in the Philippines. The entire United States
Speaker 1: population at this point was about seventy six million people,
Speaker 1: So there were a lot of people who just completely
Speaker 1: freaked out about the idea that if the Philippines became
Speaker 1: a state, Filipinos would make up almost ten percent of
Speaker 1: the population of the United States. Also, with the exception
Speaker 1: of Puerto Rico, these newly acquired islands were geographically very
Speaker 1: far from continental North America, and that added to the
Speaker 1: perception that they were more foreign than something like the
Speaker 1: southwestern part of the continent. Was Also, to be clear,
Speaker 1: we're not suggesting that racism and prejudice were directed only
Speaker 1: at the people in these newly acquired island territories, or
Speaker 1: that everyone living in the continental US had the same
Speaker 1: constitutional rights at this point. As examples after the US
Speaker 1: Civil War, the fourteenth Amendment had granted citizenship to anyone
Speaker 1: born or naturalized in the United States and subject to
Speaker 1: US jurisdiction, and the fifteenth Amendment had given black men
Speaker 1: the right to vote, but in practice, many black men
Speaker 1: could not freely exercise their right to vote, and women
Speaker 1: did not have a constitutional right to vote at all.
Speaker 1: Native Americans were not considered US citizens, and immigrants from
Speaker 1: many Asian countries were banned from becoming citizens. So the
Speaker 1: idea that the US might apply constitutional rights and protections
Speaker 1: only to some people also was not at all new.
Speaker 1: What was new was the idea that the US could
Speaker 1: acquire territory without that territory ultimately becoming a state. That
Speaker 1: is where we get to these Supreme Court cases. On
Speaker 1: May twenty seventh, nineteen oh one, the US Supreme Court
Speaker 1: issued its decision in six cases that had all been
Speaker 1: argued over the course of nineteen hundred and nineteen oh one.
Speaker 1: Most of these were related to Puerto Rico. There was
Speaker 1: also one case relating to Hawaii and one related to
Speaker 1: the Philippines. Some constitutional law scholars frame these six decisions
Speaker 1: as the core insular cases. There are others who include
Speaker 1: two other cases that were decided in December of that
Speaker 1: same year. There are others who include a lot more
Speaker 1: cases that were decided over the next two decades, for
Speaker 1: up to a total of thirty five cases. So like
Speaker 1: the argument over which cases are the insular cases can
Speaker 1: really vary depending on whose opinions you're reading. The idea
Speaker 1: that at least some of these cases would be grouped
Speaker 1: together as the insular cases was there right from the beginning.
Speaker 1: Some of the Court's opinions collectively refer to the Insular
Speaker 1: tariff cases. In February of nineteen oh one, after the
Speaker 1: cases had been argued, but before they were decided, the
Speaker 1: House of Representatives passed a resolution calling for the briefs
Speaker 1: and arguments from five of the cases to be printed
Speaker 1: together as a book called The Insular Cases. That book
Speaker 1: is one thousand and seventy five pages long, little light reading. Yeah,
Speaker 1: clearly we're not going to be talking about all of
Speaker 1: these cases in detail to quickly tick through these nineteen
Speaker 1: oh one cases. That's not just the first six, it's
Speaker 1: the other two as well. One outlier was Who's versus
Speaker 1: New York and Puerto Rico Steamship Company. This looked at
Speaker 1: the question of whether Puerto Rican ports were domestic or
Speaker 1: foreign ports in the context of US shipping law and
Speaker 1: New York laws around the pilotage of nautical vessels. Most
Speaker 1: of the other cases addressed the core question of whether
Speaker 1: Puerto Rico, Hawaii, or the Philippines should be considered a
Speaker 1: foreign country in terms of tariff law. These cases were
Speaker 1: de Lima versus Bidwell, Gutsa versus United States, Armstrong versus
Speaker 1: United States, two different cases called Duly versus United States,
Speaker 1: and fourteen Diamond Rings versus United States. These cases all
Speaker 1: involved similar scenarios. A person or business had been required
Speaker 1: to pay a duty, or had something seized by customs,
Speaker 1: but they argued that no duties or fees should have
Speaker 1: been required or customs should not have seized the goods
Speaker 1: since the goods had not come from a foreign country.
Speaker 1: The Court issued decisions in these cases establishing that none
Speaker 1: of these places were foreign countries in the context of
Speaker 1: tariff law, unless the duty had been imposed before the
Speaker 1: United States annexed them. The last of these nineteen oh
Speaker 1: one cases, not in terms of time, decided, just in
Speaker 1: terms of us talking about them, was Downs versus Bidwell,
Speaker 1: and that looked at whether parts of the Forker Act
Speaker 1: were constitutional. The Forker Act, also called the Puerto Rico
Speaker 1: Organic Act, had been passed in April of nineteen hundred.
Speaker 1: Among its many provisions, the Forker Act established a fifteen
Speaker 1: percent tariff on goods that were imported into Puerto Rico
Speaker 1: from the United States and vice versa. But Article one,
Speaker 1: Section eight, Clause one of the US Constitution, known as
Speaker 1: the Uniformity Clause, requires that quote all duties, imports, and
Speaker 1: excises shall be uniform throughout the United States. So if
Speaker 1: throughout the United States included Puerto Rico, it was unconstitutional
Speaker 1: for it to have this separate tariff. The Supreme Court's
Speaker 1: plurality decision was that no, the Foriker Act was not
Speaker 1: unconstitutional because while Puerto Rico belonged to the United States,
Speaker 1: it was not part of the United States. Of all
Speaker 1: these cases, Delima versus Bidwell and Downs versus Bidwell have
Speaker 1: gotten the most attention in terms of study and analysis,
Speaker 1: and Downs versus Bidwell in particular has become notorious for
Speaker 1: its racist language. We're going to get into more on
Speaker 1: that after a sponsor break. As we noted before the break,
Speaker 1: in nineteen oh one, the US Supreme Court issued a
Speaker 1: decision in Downs versus Bidwell that described Puerto Rico as
Speaker 1: belonging to the United States but not part of it.
Speaker 1: Downs versus Bidwell also established a distinction between incorporated and
Speaker 1: unincorporated territory. As we talked about in the first part
Speaker 1: of this shit like, this was a new idea. This
Speaker 1: was not how the United States had been doing it before.
Speaker 1: In the words of a concurring opinion by Justice Horace Gray, quote,
Speaker 1: so long as Congress has not incorporated the territory into
Speaker 1: the United States, neither military occupation nor session by treaty
Speaker 1: makes the conquered territory domestic territory in the sense of
Speaker 1: the revenue laws, but those laws concerning foreign countries remain
Speaker 1: applicable to the conquered territory until changed by Congress. If
Speaker 1: Congress is not to construct a complete government for the
Speaker 1: conquered territory, it may establish a temporary government which is
Speaker 1: not subject to all the restrictions of the Constitution. That
Speaker 1: doesn't sound like a fat loophole at all. In other words,
Speaker 1: Puerto Rico and by extension, the other island territories were
Speaker 1: not foreign countries in terms of tariff law, but also
Speaker 1: were not part of the United States in any way
Speaker 1: that would bring them under the Constitution's uniformity clause. This
Speaker 1: decision sort of read into various parts of the Constitution
Speaker 1: and previous court decisions, arguing that you really couldn't infer
Speaker 1: from the Constitution that territories were part of the United States,
Speaker 1: like the thirteenth Amendment to the Constitution abolished slavery quote
Speaker 1: within the United States or in any place subject to
Speaker 1: their jurisdiction. So, according to this argument, that had to
Speaker 1: mean there were places that were subject to US jurisdiction
Speaker 1: but were not part of the United States or in
Speaker 1: the Fourteenth Amendment. Quote, all persons born or naturalized in
Speaker 1: the United States and subject to the jurisdiction thereof are
Speaker 1: citizens of the United States and the state wherein they reside.
Speaker 1: So in the Court's view that suggested that in the
Speaker 1: United States and subject to US jurisdiction could be two
Speaker 1: totally different things. To quote from the plurality opinion authored
Speaker 1: by Justice Henry Billings Brown quote, we are also of
Speaker 1: the opinion that the power to acquire territory by treaty
Speaker 1: implies not only the power to govern such territory, but
Speaker 1: to prescribe upon what terms the United States will receive
Speaker 1: its inhabitants and what their status shall be in what
Speaker 1: Chief Justice Marshall termed the American Empire. There seems to
Speaker 1: be no middle ground between this position and the doctrine
Speaker 1: that if their inhabitants do not become immediately upon annexation
Speaker 1: citizens of the unit United States, their children thereafter born,
Speaker 1: whether savages or civilized, are such and entitled to all
Speaker 1: the rights, privileges, and immunities of citizens. If such be
Speaker 1: their status, the consequences will be extremely serious. Indeed, it
Speaker 1: is doubtful if Congress would ever assent to the annexation
Speaker 1: of territory upon the condition that its inhabitants, however foreign
Speaker 1: they may be to our habits, traditions, and modes of life,
Speaker 1: shall become at once citizens of the United States. Legal racism. Yeah,
Speaker 1: it's like it's straightforwardly racist. The Plurality opinion concluded, quote,
Speaker 1: if those possessions are inhabited by alien races differing from
Speaker 1: us in religion, customs, laws, methods of taxation, and modes
Speaker 1: of thought, the administration of government and justice according to
Speaker 1: Anglo Saxon principles, may for a time be impossible, and
Speaker 1: the question at once arises whether large concessions ought not
Speaker 1: to be made for a time that ultimately our own
Speaker 1: theories may be carried out, and the blessings of a
Speaker 1: free government under the Constitution extended to them. We decline
Speaker 1: to hold that there is anything in the Constitution to
Speaker 1: forbid such action. It went on to say, quote, we
Speaker 1: are therefore of opinion that the island of Puerto Rico
Speaker 1: is a territory, a pertinent and belonging to the United States,
Speaker 1: but not a part of the United States. Within the
Speaker 1: revenue clauses of the Constitution, that the foriker Act is
Speaker 1: constitutional so far as it imposes duties upon imports from
Speaker 1: such island, and that the plaintiff cannot recover back the
Speaker 1: duties exacted in this case. So this was one of
Speaker 1: many five to four decisions among the insular cases, just
Speaker 1: in case folks are not from the US, they don't
Speaker 1: necessarily know how the Supreme Court is set up. There
Speaker 1: are nine justices, and so in a lot of these
Speaker 1: cases the decision was five to four. A dissent by
Speaker 1: Chief Justice Fuller included the statement quote great stress is
Speaker 1: thrown upon the word incorporation, as if possessed of some
Speaker 1: occult meaning. Justice John M. Harlan also penned a dissent
Speaker 1: of his own, which set, in part quote these are
Speaker 1: words of weighty import. They involve consequences of the most
Speaker 1: momentous character. I take leave to say that if the
Speaker 1: principles thus announced should ever receive the sanction of a
Speaker 1: majority of this Court, a radical and mischievous change in
Speaker 1: our system of government will be the result. We will,
Speaker 1: in that event, pass from the era of constitutional liberty
Speaker 1: guarded and protected by a written constitution into an era
Speaker 1: of legislative absolutism. Together these nineteen oh one cases establish
Speaker 1: the idea that Puerto Rico, Hawaii, the Phillippines, Samoa, and
Speaker 1: Guam were part of the United States in some ways
Speaker 1: but not others, and could stay that way indefinitely. Cases
Speaker 1: that followed later in the early twentieth century also outlined
Speaker 1: limits on the constitutional rights of people living in these territories.
Speaker 1: As we said earlier, some scholars consider these later cases
Speaker 1: to be part of the insular cases, and some do not.
Speaker 1: As a few examples, Door versus United States decided in
Speaker 1: nineteen oh four looked at the question of whether residents
Speaker 1: of the Philippines had the right to a trial by jury.
Speaker 1: The right to a jury trial is outlined in the
Speaker 1: sixth Amendment to the Constitution, but the court ruled that
Speaker 1: it would only apply in the Philippines if Congress enacted
Speaker 1: legislation to establish that right. Hawaii versus. Mankiche was similar,
Speaker 1: finding that the right to a jury trial had not
Speaker 1: existed in Hawaii in the window between when the US
Speaker 1: annexed it and when Congress passed an act to provide
Speaker 1: a government for the ti territory of Hawaii in nineteen hundred.
Speaker 1: This act bestowed US citizenship on the people who had
Speaker 1: been citizens of the Republic of Hawaii as of August twelfth,
Speaker 1: eighteen ninety eight. So once people in Hawaii were considered
Speaker 1: to be US citizens, they were entitled to a trial
Speaker 1: by jury, But when Hawaii was a US territory whose
Speaker 1: residents were not citizens, they were not entitled to a
Speaker 1: jury trial. Gonzales versus Williams was decided in nineteen oh four.
Speaker 1: Although Puerto Ricans were not considered US citizens at that time,
Speaker 1: they were supposed to be able to travel freely to
Speaker 1: the United States. Isabella Gonzalez had tried to join her
Speaker 1: fiance in New York, but was turned away at port.
Speaker 1: She was pregnant, and authorities described her as an alien
Speaker 1: who was likely to become a public charge. The court
Speaker 1: found that she was not an alien and should not
Speaker 1: have been denied entry into New York, but also did
Speaker 1: not find that she was a citizen. This case is
Speaker 1: sometimes cited as a factor in Puerto Rican's ultimately being
Speaker 1: given citizenship as part of the Jones Schafroth Act in
Speaker 1: nineteen seventeen. When I got to this part, I was like,
Speaker 1: I kind of wish I had done a whole episode
Speaker 1: on this one case. Which might happen at some point
Speaker 1: in the future. We still could. One of the last
Speaker 1: cases that is sometimes grouped together with the insular cases
Speaker 1: was Balzac versus Puerto Rico, decided in nineteen twenty two.
Speaker 1: This was a case in which Jesus M. Baalzac, editor
Speaker 1: of a Puerto Rican daily newspaper, had been charged with libel.
Speaker 1: This case was connected to the rights of free speech,
Speaker 1: freedom of the press, and trial by jury, which are
Speaker 1: all considered basic constitutional rights in the United States. The
Speaker 1: court found that Puerto Rico had not been incorporated into
Speaker 1: the United States, and that the sixth Amendment right to
Speaker 1: a jury trial did not apply, and that Ballzak's published
Speaker 1: work was not protected by the rights to free speech
Speaker 1: or a free There are a lot of contradictions among
Speaker 1: these cases and sometimes within the cases themselves. As we
Speaker 1: said earlier, many were decided five to four, and often
Speaker 1: those five justices agreed on the outcome but not on
Speaker 1: the reasoning behind it. But together they established what's known
Speaker 1: as the incorporation doctrine. They outlined differences between incorporated and
Speaker 1: unincorporated territories and set the stage for the United States
Speaker 1: to be able to claim unincorporated territories in perpetuity without
Speaker 1: allowing them to enter the Union as states or de
Speaker 1: annexing them. While the US Constitution established the nation as
Speaker 1: a representative democracy, the insular cases set aside several territories
Speaker 1: territories that were inhabited primarily by Hispanic and Indigenous people
Speaker 1: as not entitled to full participation or representation in that democracy.
Speaker 1: Whow as we said earlier, these cases still stand, there
Speaker 1: have of course been some shifts and details over the
Speaker 1: last century. The Philippines became independent from the United States
Speaker 1: in nineteen forty six after being occupied by Japan during
Speaker 1: World War Two. Japan had actually declared the Philippines independent
Speaker 1: in nineteen forty three, sort of trying to get the
Speaker 1: support of Filipinos during this occupation. As we said earlier,
Speaker 1: the people of Puerto Rico were granted statutory citizenship in
Speaker 1: nineteen seventeen, and in nineteen fifty Public Law six hundred
Speaker 1: authorized the people of Puerto Rico to draft their own constitution,
Speaker 1: so Puerto Rico today is considered to be self governing.
Speaker 1: Hawaii became a state in nineteen fifty nine, a process
Speaker 1: that took more than fifty years, due in part to
Speaker 1: racist attitudes against the archipelago's native Hawaiian and Asian residents.
Speaker 1: While voters in Hawaii overwhelmingly ratified at statehood, many Native
Speaker 1: Hawaiians have pushed instead for Hawaiian independence and sovereignty. Residents
Speaker 1: of Guam gained US citizenship under the Guam Organic Act
Speaker 1: of nineteen fifty after having been essentially abandoned by the
Speaker 1: United States and left to a horrific occupation by Japan
Speaker 1: during World War Two. Today, American Samoans are considered US nationals,
Speaker 1: but not US citizens. You could say this of all
Speaker 1: of these places, but the United States has definitely been
Speaker 1: most focused on them when it has been like the
Speaker 1: most within US interests to do so so, Like there's
Speaker 1: the most focused on the well being of Guam when
Speaker 1: there's a like strategic military reason to do so for
Speaker 1: some reason, and like this abandonment of Guam during World
Speaker 1: War two is kind of the US to basically just
Speaker 1: like cut his losses. We mentioned the Northern Mariana Islands
Speaker 1: and the US Virgin Islands the top of the show.
Speaker 1: They have not come up again because they were not
Speaker 1: US territories when the first insular cases were decided. The
Speaker 1: US purchased the US Virgin Islands from Denmark and nineteen seventeen.
Speaker 1: The Northern Mariana Islands became a US territory in nineteen
Speaker 1: seventy five, even though neither was a US territory when
Speaker 1: the original Insular cases were being argued and decided, they're
Speaker 1: both considered unincorporated territories following this same model that the
Speaker 1: Insular case is established. The US Virgin Islands, American Samoa,
Speaker 1: and Guam are all on the United Nations list of
Speaker 1: non self governing territories. Broadly speaking, people living in these
Speaker 1: territories are considered to be entitled to fundamental constitutional rights,
Speaker 1: but not necessarily to others, and opinions can also differ
Speaker 1: on which rights should be considered fundamental. The unincorporated territories
Speaker 1: are not represented by the electoral College and presidential elections.
Speaker 1: They are represented by one delegate each in the House
Speaker 1: of Representatives, who can serve on committees and can introduce legislation,
Speaker 1: but cannot vote. There are actually six total non voting
Speaker 1: members of the House. The sixth one represents Washington d C. So,
Speaker 1: as is the case with the unincorporated territories, residents of
Speaker 1: Washington D. C don't have the same representation in Congress
Speaker 1: as people who live in what the states do. A
Speaker 1: key difference here, though, is that the Constitution itself outlines
Speaker 1: the creation of a district to serve as the seat
Speaker 1: of the government. Washington d c. Did not come about
Speaker 1: because the Supreme Court kind of made up but justification
Speaker 1: to do so. At this point, there's near unanimous agreement
Speaker 1: among historians and constitutional law scholars that the insular cases
Speaker 1: are rooted in racism and colonialism, but there's less agreement
Speaker 1: about what the outcome would be if these cases were overturned,
Speaker 1: and whether that outcome would ultimately be positive for people
Speaker 1: who would be affected. And in more recent years, there
Speaker 1: have been some attempts to use these decisions to try
Speaker 1: to protect the rights of people who are living in
Speaker 1: these territories. For example, in the US, it would be
Speaker 1: consider that are unconstitutional to pass laws tying property ownership
Speaker 1: to race. Theoretically, since the unincorporated territories don't have full
Speaker 1: constitutional protection, it would be possible to pass laws giving
Speaker 1: these islands indigenous people's preference in terms of land ownership
Speaker 1: based on their race, which could help protect their connections
Speaker 1: to their ancestral homelands and their traditional ways of life.
Speaker 1: Having worked on this show for a decade, Tracy notes
Speaker 1: that she's not really optimistic about this working out. I
Speaker 1: would agree with that, And she also read a lot
Speaker 1: of arguments that basically kind of summed this up to,
Speaker 1: no matter what good end you try to put them to,
Speaker 1: these decisions are still racist and should still be overturned. Yeah,
Speaker 1: And to be very clear, the only reason I said
Speaker 1: there is near unanimous agreement instead of just unanimous agreement
Speaker 1: is because I know if we say unanimous, we're gonna
Speaker 1: get an article somebody sends to us that's like, ah,
Speaker 1: here's the one outlier who claims this was not about racism.
Speaker 1: There have also been a number of Supreme Court cases
Speaker 1: in more recent years that have continued to uphold elements
Speaker 1: of the insular cases and to outline ways in which
Speaker 1: people living in these territories can be treated differently from
Speaker 1: people in the Fifty States or Washington, d C. In
Speaker 1: accept the context of congressional representation, we're talking about Washington DC. So,
Speaker 1: for example, the US versus Valeo Madero was decided in
Speaker 1: twenty twenty two. Valeo Madero was a Puerto Rican living
Speaker 1: in New York who had been receiving supplemental security income
Speaker 1: payments that's what we colloquially called social security or disability payments.
Speaker 1: He moved to Puerto Rico, making him no longer eligible
Speaker 1: to receive these payments, and the government did not realize
Speaker 1: he had moved and kept sending the payments. When they
Speaker 1: realized what had happened, the government sued to try to
Speaker 1: recoup that money. The argument in this case was that
Speaker 1: excluding Puerto Ricans from the program violated the Constitution's Doe
Speaker 1: process clause in the Fifth Amendment. In an eight to
Speaker 1: one decision, the Supreme Court disagreed, ruling that the Constitution
Speaker 1: did not require supplemental security income payments for people in
Speaker 1: Puerto Rico. Justice Neil Gorsich wrote a scathing concurrence, agreeing
Speaker 1: with the majority opinion but also arguing stridently against the
Speaker 1: insular cases. He wrote, quote, flaws in the insular cases
Speaker 1: are as fundamental as they are shameful. Nothing in the
Speaker 1: Constitution speaks of incorporated and unincorporated territories. Nothing in it
Speaker 1: extends to the latter only certain supposedly fundamental constitutional guarantees.
Speaker 1: Nothing in it authorizes judges to engage in the sordid
Speaker 1: business of segregating territories and the people who live in
Speaker 1: them on the basis of race, ethnicity, or religion. The
Speaker 1: insular cases can claim support in academic work of the period,
Speaker 1: ugly racial stereotypes and the theories of social Darwinists, but
Speaker 1: they have no home in our Constitution or its original understanding.
Speaker 1: The case that the Supreme Court declined to hear last
Speaker 1: year was Fitisimanu versus United States that was brought by
Speaker 1: three American Samoans living in Utah. They argued that the
Speaker 1: Fourteenth Amendment's birthright citizenship clause should apply to the people
Speaker 1: of American Samoa. While American Samoans who moved to the
Speaker 1: United States can apply for citizenship, they're not guaranteed citizenship.
Speaker 1: They are also denied various rights like voting and running
Speaker 1: for office until they become citizens if those applications are successful.
Speaker 1: As we said at the top of the show, people
Speaker 1: in American Samoa have varying opinions on these issues. In
Speaker 1: this case, the government of American Samoa and Congresswoman al
Speaker 1: Mua Amada, who represents American Samoa, submitted a brief opposing
Speaker 1: this idea. It read, in part quote, the citizenship clause
Speaker 1: does not require imposing birthright citizenship on the people of
Speaker 1: American Samoa over the objection of their elected representatives and government,
Speaker 1: and in violation of their basic right to self determination.
Speaker 1: This brief stress the importance of FAA Samoa or the
Speaker 1: Samoan culture and way of life, arguing that FAA Samoa
Speaker 1: is fundamentally important to the Samoan people and that imposing
Speaker 1: birthright citizenship on American Samoa would undermine it. The Samoan
Speaker 1: Federation of America, which supports and advocates for Samoan Americans
Speaker 1: living in the United States, was one of the organizations
Speaker 1: that submitted a brief supporting the petitioners. Yeah, so, as
Speaker 1: we said earlier, people are not a monolith. There are
Speaker 1: varying opinions on this. There were more briefs submitted in
Speaker 1: support of applying birthright citizenship to American Samoa, but also
Speaker 1: a lot of people currently living in American Samoa who
Speaker 1: were like, that's not what we want though. Uh, a
Speaker 1: lot of these things are complicated and have not gotten
Speaker 1: into it here. But like these distinctions and which rights
Speaker 1: apply and which don't, Like a lot of them just
Speaker 1: trickle down to all kinds of things about people's everyday lives.
Speaker 1: A lot of these places have disproportionately higher participation in
Speaker 1: military service, so there are a lot of military veterans,
Speaker 1: but you know, military veterans and returning to these places
Speaker 1: aren't able to do things like vote president afterward. And
Speaker 1: in some cases the veterans services in their local areas
Speaker 1: are a business. Not good. Yeah, I was reading. I
Speaker 1: was reading one thing about people from Guam needing particular
Speaker 1: veteran services and having to go to Hawaii to get them,
Speaker 1: which is like four thousand miles away. Thanks so much
Speaker 1: for joining us on this Saturday. If you'd like to
Speaker 1: send us a note, our email addresses History Podcast at
Speaker 1: iHeartRadio dot com, and you can subscribe to the show
Speaker 1: on the iHeartRadio app, Apple Podcasts, or wherever you listen
Speaker 1: to your favorite shows.