Speaker 1: Welcome to Stuff You Missed in History Class, a production
Speaker 1: of iHeartRadio. Hello, and welcome to the podcast.
Speaker 2: I'm Tracy V.
Speaker 1: Wilson and I'm Holly Frying. Today we're going to talk
Speaker 1: about some US Supreme Court cases, although not comical ones
Speaker 1: like Nicks versus Headen, which we covered recently and was
Speaker 1: about tomatoes. We are going to be talking more about
Speaker 1: tariffs though this time. It's a collection of cases that
Speaker 1: followed the Spanish American War, and these cases together limited
Speaker 1: the rights of people living in certain US territories. These
Speaker 1: cases still stand today. They still affect the lives and
Speaker 1: civil rights of people in places like American Samoa, Guam,
Speaker 1: the Northern Mariana Islands, Puerto Rico, and the US Virgin Islands.
Speaker 1: So people who were born in all of these territories,
Speaker 1: with the exception of Americans, are considered US citizens by birth,
Speaker 1: but while living on any of these any of these
Speaker 1: islands territories, they don't have the same constitutional rights or
Speaker 1: representation in Congress as citizens who live in one of
Speaker 1: the fifty States. Some of those court cases involved the
Speaker 1: Philippines also, that was a US territory at the time
Speaker 1: but has since become independent. So together these cases are
Speaker 1: known as the Insular Cases, with insular meaning related to islands,
Speaker 1: and they were in the news last year because the
Speaker 1: US Supreme Court declined to her case that was challenging them.
Speaker 1: Before we start with this, I want to note there's
Speaker 1: a whole range of opinion in all of these places
Speaker 1: about their relationships to the United States, Like, for example,
Speaker 1: there are American Samoans who think that they should be
Speaker 1: considered US citizens from birth, but then others who think
Speaker 1: that would erase their existing culture and traditions. Or as
Speaker 1: another example, there is a movement for Puerto Rican statehood
Speaker 1: that's been going on for decades, but there are also
Speaker 1: people who opposed that movement, with some of the opponents
Speaker 1: advocating instead for an independent Puerto Rico. So this episode
Speaker 1: is really focused on the court cases and the context
Speaker 1: around them. It is not about the lived experiences and
Speaker 1: opinions of the people living in all of these territories.
Speaker 1: I don't think the two of us are the best
Speaker 1: people to try to like embody that no, and even
Speaker 1: if we were, I feel like that is a podcast
Speaker 1: of its own and not an episode of ARM.
Speaker 2: 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 names 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 borders 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 incl 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 needful rules and regulations
Speaker 1: respecting the territory or other property belonging to the United States.
Speaker 1: And nothing in this Constitution shall be so construed as
Speaker 1: to prejudice any claims of the United States or any
Speaker 1: particular state. Soon, new states were being added to the Union.
Speaker 1: The first state that wasn't one of the thirteen original
Speaker 1: colonies was Vermont in seventeen ninety one. Kentucky became a
Speaker 1: state in seventeen ninety two from land that had previously
Speaker 1: been considered part of Virginia. Tennessee became a state four
Speaker 1: years later, formed from the Southwest Territory that was land
Speaker 1: that North Carolina had ceded to the federal government. Ohio
Speaker 1: joined the Union in eighteen oh three and was formed
Speaker 1: from part of the Northwest Territory. With the exception of Vermont,
Speaker 1: which had considered itself an independent republic before becoming a state,
Speaker 1: these newly added states had all been formed from organized,
Speaker 1: incorporated territory that was already considered to be within the
Speaker 1: US borders under the Treaty of Paris. So incorporated in
Speaker 1: this case means that the territory is considered to be
Speaker 1: fully part of the US under the Constitution, and the
Speaker 1: only parts of the Constitution that don't apply to incorporated
Speaker 1: territory are articles that specifically apply to the states. Organized
Speaker 1: means that Congress had passed an organic act or a
Speaker 1: body of laws establishing a government and usually a bill
Speaker 1: of rights for the territory. So, for example, the Northwest
Speaker 1: Territory was unorganized before Congress passed the Northwest Ordinances. The
Speaker 1: Northwest Ordinances of seventeen eighty seven also outlined a process
Speaker 1: for the territory to be admitted into the Union as
Speaker 1: no less than three and no more than five states.
Speaker 1: When the United States started acquiring new terrance, that new
Speaker 1: territory was also incorporated. The first big addition of land
Speaker 1: to the United States was the Louisiana Purchase in eighteen
Speaker 1: oh three. The Treaty of Session that was part of
Speaker 1: the Louisiana Purchase agreement said, quote, the inhabitants of the
Speaker 1: cated Territory shall be incorporated in the Union of the
Speaker 1: United States, and admitted as soon as possible, according to
Speaker 1: the principles of the Federal Constitution, to the enjoyment of
Speaker 1: all these rights, advantages, and immunities of citizens of the
Speaker 1: United States. Florida was also incorporated when it became part
Speaker 1: of the United States under the Adam Zonice Treaty, which
Speaker 1: took effect in eighteen twenty one. States formed from these
Speaker 1: territories were added to the Union, following the same basic
Speaker 1: template that had been outlined in the Northwest Ordinance of
Speaker 1: seventeen eighty seven. As the nineteenth century continued, the United
Speaker 1: States approach to expansion was described as manifest destiny. That's
Speaker 1: a term first used in Right Blace in eighteen forty
Speaker 1: five as part of an argument that the United States
Speaker 1: should annex the Republic of Texas. This came to mean
Speaker 1: that the United States was destined to expand across the
Speaker 1: whole of North America, and this idea framed the United
Speaker 1: States expansion as necessary and inevitable, and as the nation's duty.
Speaker 1: This also was connected to a series of removals, wars,
Speaker 1: and genocidal policies against the indigenous nations of North America,
Speaker 1: in which tens of thousands of people were forced to
Speaker 1: leave their homelands and move to land known as Indian
Speaker 1: Territory west of the Mississippi River, primarily in what is
Speaker 1: now Oklahoma. Support for the philosophy of manifest destiny was
Speaker 1: not as universal as it sometimes described. There were people
Speaker 1: within and outside of the US government who argued against
Speaker 1: such aggressive expansion, and there were people of a range
Speaker 1: of backgrounds, races, ethnicities, and religions who didn't want the
Speaker 1: place they were already living to be annexed or purchased
Speaker 1: by the United States for all kinds of reasons. Thousands
Speaker 1: of Indigenous people also died as a result of the
Speaker 1: force removals that were involved in making way for this expansion.
Speaker 1: But the underlying assumption was that any territory the US
Speaker 1: was acquiring would become one or more states. Assumption is
Speaker 1: not even a strong enough word. It was obvious and
Speaker 1: unquestioned that newly acquired territory would be admitted into the
Speaker 1: Union as states. There were debates about whether slavery would
Speaker 1: be allowed in newly organized territory and newly admitted states,
Speaker 1: and a number of compromises and appeasements maintained a balance
Speaker 1: between slave states and free States in Congress, but there
Speaker 1: was really no debate about whether this new territory was
Speaker 1: on a path to statehood. There was no sense at
Speaker 1: all that a territory could be unincorporated. The only real
Speaker 1: exception to this pattern involved the islands that were claimed
Speaker 1: under the Guano Islands Act of eighteen fifty six. This
Speaker 1: act allowed US citizens to claim uninhabited islands as sources
Speaker 1: of guano or bird poop, so these islands didn't need
Speaker 1: to be incorporated they did not have a permanent human population.
Speaker 1: Alaska's status was also kind of vague for a while
Speaker 1: after the US purchased it from Russia in eighteen sixty seven.
Speaker 1: The US made this purchase just two years after the
Speaker 1: end of the Civil War, it was still in the
Speaker 1: middle of trying to rebuild itself. In Secretary of State
Speaker 1: William H. Stewart's decision to buy Alaska was widely criticized
Speaker 1: and lampooned. Alaska was organized as the District of Alaska
Speaker 1: in eighteen eighty four, but at the very end of
Speaker 1: the nineteenth century, the United States acquired territory that it
Speaker 1: didn't necessarily want to incorporate. We're going to get to
Speaker 1: that after we have a sponsor break. The United States
Speaker 1: approach to its territories really shifted during and after the
Speaker 1: Spanish American War. This war evolved from Cuba's struggle for
Speaker 1: independence from Spain, and it was also influenced by sensationalized
Speaker 1: news reporting in the United States and the explosion of
Speaker 1: the USS Maine in Havana Harbor on February fifteenth, eighteen
Speaker 1: ninety eight. The Treaty of Paris that formally ended the
Speaker 1: Spanish American War was signed on December tenth, eighteen ninety eight.
Speaker 1: It recognized Cuba as an independent nation while giving the
Speaker 1: United States control of Puerto Rico and Guam. Under the treaty,
Speaker 1: the United States was also allowed to purchase the Philippines
Speaker 1: from Spain, which it did, although the Philippines had declared
Speaker 1: its own independence, and the US takeover of the Philippines
Speaker 1: sparked the two year Philippine American War. There are many
Speaker 1: treaties of Paris. This is obviously a different one than
Speaker 1: the one that formerly ended the Revolutionary War. Paris is
Speaker 1: where all the cool treaties happen, where we always go
Speaker 1: to negotiate a peace. I mean, yeah, any excuse to
Speaker 1: 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.
Speaker 2: To the US.
Speaker 1: In exchange, the US took control of an area known
Speaker 1: as Puuloa, now home to the Pearl Harbor Naval Base.
Speaker 1: This treaty led to a huge explosion in the sugar
Speaker 1: industry in Hawaii, driven by US business interests, which made
Speaker 1: the Hawaiian economy increasingly dependent on these exports. Then, in
Speaker 1: eighteen ninety three, Sandford Dole, a lawyer who was born
Speaker 1: in Hawaii to American parents, led a committee of sugar
Speaker 1: planters and other American businessmen to overthrow the Hawaiian monarchy
Speaker 1: with the backing of the US military. Dole petitioned the
Speaker 1: US to annex Hawaii in eighteen ninety four, and one
Speaker 1: reason the US did so four years later was to
Speaker 1: ensure that it did not lose control of Pearl Harbor
Speaker 1: while fighting a war with Spain. That is, like the
Speaker 1: most brief abridged synopsis, and we're about to have another
Speaker 1: one because then in eighteen ninety nine, the US took
Speaker 1: 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 ten, nine, mostly because most of the
Speaker 1: Western 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 Marito 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 a US territory.
Speaker 1: So by eighteen ninety nine, the US had taken control
Speaker 1: of Puerto Rico, Guam, the Philippines, Hawaii, 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 did it want islands full
Speaker 1: of people who were predominantly indigenous or Hispanic to suddenly
Speaker 1: become US citizens. In some cases, religious prejudice was also
Speaker 1: a factor, since some of these areas were predominantly Catholic.
Speaker 1: This can seem like an odd argument considering that the
Speaker 1: US had already incorporated a lot of territory in North
Speaker 1: America that had previously been colonized by Spain and had
Speaker 1: some demographic similarities to these islands, like under the Treaty
Speaker 1: of Guadalupe Hidalgo that ended the Mexican American War in
Speaker 1: eighteen forty eight, Mexico ceded more than half its territory
Speaker 1: to the US. People living there had been given a
Speaker 1: year to decide if they wanted to become US citizens,
Speaker 1: and by the time the Spanish American War ended, multiple
Speaker 1: states had been formed from that territory. But as an example,
Speaker 1: when California became a state in eighteen fifty, formed from
Speaker 1: territory that had been part of Mexico, it had a
Speaker 1: population of about ninety two thousand people. Meanwhile, at the
Speaker 1: end of the Spanish American War, the population of Puerto
Speaker 1: Rico was more than ten times that, and there were
Speaker 1: roughly seven million people living in the Philippines. The entire
Speaker 1: United States population at this point was about seventy six
Speaker 1: million people, So there were a lot of people who
Speaker 1: just completely freaked out about the idea that if the
Speaker 1: Philippines became a state, Filipinos would make up almost ten
Speaker 1: percent of the population of the United States. Also, with
Speaker 1: the exception of Puerto Rico, these newly acquired islands were
Speaker 1: geographically very far from continental North America, and that added
Speaker 1: to the perception that they were more foreign than something
Speaker 1: like the southwestern part of the continent was Also, to
Speaker 1: be clear, we're not suggesting that racism and prejudice were
Speaker 1: directed only at the people in these newly acquired island territories,
Speaker 1: or that everyone living in the continental US had the
Speaker 1: same constitutional rights at this point as exact samples. After
Speaker 1: the US Civil War, the Fourteenth Amendment had granted citizenship
Speaker 1: to anyone born or naturalized in the United States and
Speaker 1: subject to US jurisdiction, and the fifteenth Amendment had given
Speaker 1: black men the right to vote, but in practice, many
Speaker 1: black men could not freely exercise their right to vote,
Speaker 1: and women did not have a constitutional right to vote
Speaker 1: at all. Native Americans were not considered US citizens, and
Speaker 1: immigrants from many Asian countries were banned from becoming citizens.
Speaker 1: So the idea that the US might apply constitutional rights
Speaker 1: and protections only to some people also was not.
Speaker 2: 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. Most
Speaker 1: of these were related to Puerto Rico. There was also
Speaker 1: one case relating to Hawaii and one related to the Philippines.
Speaker 1: Some constitutional law scholars frame these six decisions as the
Speaker 1: core insular cases. There are others who include two other
Speaker 1: cases that were decided in December of that same year.
Speaker 1: There are others who include a lot more cases that
Speaker 1: were decided over the next two decades, for up to
Speaker 1: a total of thirty five cases. So like the argument
Speaker 1: over which cases are the insular, cases can really vary
Speaker 1: depending on whose opinions.
Speaker 2: You're reading.
Speaker 1: The idea that at least some of these cases would
Speaker 1: be grouped together as the Insular Cases was there right
Speaker 1: from the beginning. Some of the court's opinions collectively refer
Speaker 1: to the Insular Tariff Cases. In February of nineteen oh one,
Speaker 1: after the cases had been argued but before they were decided,
Speaker 1: the House of Representatives passed a resolution calling for the
Speaker 1: briefs and arguments from five of the cases to be
Speaker 1: printed together as a book called the Insular Cases. That
Speaker 1: book is one thousand and seventy five pages long, well
Speaker 1: light reading. Yeah, clearly we're not going to be talking
Speaker 1: about all of these cases in detail to quickly tick
Speaker 1: through these nineteen oh one cases. That's not just the
Speaker 1: first six, it's the other two as well. One outlier
Speaker 1: was Who's versus New York and Puerto Rico Steamship Company.
Speaker 1: This looked at the question of whether Puerto Rican ports
Speaker 1: were domestic or foreign ports in the context of US
Speaker 1: shipping law and New York laws around the pilotage of
Speaker 1: nautical vessels. Most of the other cases addressed the core
Speaker 1: question of whether Puerto Rico, Hawaii, or the Philippines should
Speaker 1: be considered a foreign country in terms of tariff law.
Speaker 1: These cases were Delema versus Bidwell, Gutsa versus United States,
Speaker 1: Armstrong versus United States, two different cases called Duly versus
Speaker 1: United States, and fourteen Diamond Rings versus United States. These
Speaker 1: cases all involved similar scenarios. A person or business had
Speaker 1: been required to pay a duty or had something seized
Speaker 1: by customs, but they argued that no duties or fees
Speaker 1: should have been required or customs should not have seized
Speaker 1: the goods since the goods had not come from a
Speaker 1: foreign country. The Court issued decisions in these cases establishing
Speaker 1: that none of these places were foreign countries in the
Speaker 1: context of tariff law unless the duty had been imposed
Speaker 1: before the United States annexed them. The last of these
Speaker 1: nineteen oh one cases, not in terms of time decided
Speaker 1: just in terms of us talking about them, was Downs
Speaker 1: versus Bidwell, and that looked at whether parts of the
Speaker 1: Forker Act were constitutional. The Foriker Act, also called the
Speaker 1: Puerto Rico Organic Act, had been passed in April of
Speaker 1: nineteen hundred. Among its many provisions, the Forker Act established
Speaker 1: a fifteen percent tariff on goods that were imported into
Speaker 1: Puerto Rico from the United States and vice versa. But
Speaker 1: Article one, Section eight, Clause one of the US Constitution,
Speaker 1: known as the Uniformity Clause, requires that quote all duties, imports,
Speaker 1: and excises shall be uniform throughout the United States. So
Speaker 1: if throughout the United States included Puerto Rico, it was
Speaker 1: unconstitutional for it to have this separate tariff. The Supreme
Speaker 1: Court's plurality decision was that no, the Foriker Act was
Speaker 1: not 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, Delema 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. To get into more on that, after
Speaker 1: a sponsor break, as we noted before the break, in
Speaker 1: nineteen oh one, the US Supreme Court issued a decision
Speaker 1: in Downs versus Bidwell that described Puerto Rico as belonging
Speaker 1: to the United States but not part of it. Downs
Speaker 1: versus Bidwell also established a distinction between incorporated and unincorporated territory.
Speaker 1: As we talked about in the first part of this
Speaker 1: show like this was a new idea. This was not
Speaker 1: how the United States had been doing it before. In
Speaker 1: 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 can so learning foreign
Speaker 1: countries remain applicable to the conquered territory until changed by Congress.
Speaker 1: If Congress is not ready to construct a complete government
Speaker 1: for the conquered territory, it may establish a temporary government
Speaker 1: which is not subject to all the restrictions of the Constitution.
Speaker 2: That doesn't sound.
Speaker 1: Like a fat loophole at all. In other words, Puerto
Speaker 1: Rico and by extension, the other island territories were not
Speaker 1: foreign countries in terms of tariff law, but also were
Speaker 1: not part of the United States in any way that
Speaker 1: would bring them under the Constitution's uniformity clause.
Speaker 2: This decision sort of.
Speaker 1: Read into various parts of the Constitution and previous court decisions,
Speaker 1: arguing that you really couldn't infer from the Constitution that
Speaker 1: territories were part of the United States, like the thirteenth
Speaker 1: Amendment to the Constitution abolished slavery quote within the United States,
Speaker 1: were in any place subject to their jurisdiction. So, according
Speaker 1: to this argument, that had to mean there were places
Speaker 1: that were subject to US jurisdiction but were not part
Speaker 1: of the United States. Or in the fourteenth Amendment quote,
Speaker 1: all persons born or naturalized in the United States and
Speaker 1: subject to the jurisdiction thereof are citizens of the United
Speaker 1: States and the state wherein they reside. So in the
Speaker 1: Court's view, that suggested that in the United States and
Speaker 1: subject to US jurisdiction could be two totally different things.
Speaker 1: To quote from the plurality opinion authored by Justice Henry
Speaker 1: Billings Brown quote, We are also of the opinion that
Speaker 1: the power to acquire territory by treaty implies not only
Speaker 1: the power to govern such territory, but to prescribe upon
Speaker 1: what terms the United States will receive its inhabitants and
Speaker 1: what their status shall be in what Chief Justice Marshall
Speaker 1: termed the American Empire. There seems to be no middle
Speaker 1: ground between this position and the doctrine that if their
Speaker 1: inhabitants do not become immediately upon annexation citizens of the
Speaker 1: United States. Their children thereafter born, whether savages or civilized,
Speaker 1: are such and entitled to all the rights, privileges, and
Speaker 1: immunities of citizens. If such be their status, the consequences
Speaker 1: will be extremely serious. Indeed, it is doubtful if Congress
Speaker 1: would ever assent to the annexation of territory upon the
Speaker 1: condition that its inhabitants, however foreign they may be, to
Speaker 1: our habits, traditions, and modes of life, shall become at
Speaker 1: once citizens of the United States. Legal racism. Yeah, it's
Speaker 1: very It's like, it's straightforwardly racist. Uh.
Speaker 2: The Plurality opinion concluded. Quote.
Speaker 1: If those possessions are inhabited by alien races differing from
Speaker 1: us in religion, customs, laws, men, methods of taxation, and
Speaker 1: modes of thought, the administration of government and justice according
Speaker 1: to Anglo Saxon principles, may for a time be impossible,
Speaker 1: And the question at once arises whether large concessions ought
Speaker 1: not to be made for a time that ultimately our
Speaker 1: own theories may be carried out, and the blessings of
Speaker 1: a free government under the Constitution extended to them. We
Speaker 1: decline to hold that there is anything in the Constitution
Speaker 1: to forbid such action. It went on to say, quote,
Speaker 1: we are therefore of opinion that the island of Puerto
Speaker 1: Rico is a territory, a pertinent, and belonging to the
Speaker 1: United States, but not a part of the United States
Speaker 1: within the revenue clauses of the Constitution. That the Foriker
Speaker 1: Act is constitutional so far as it imposes duties upon
Speaker 1: imports from such island, and that the plaintiff cannot recover
Speaker 1: back the duties exacted in this case. So this was
Speaker 1: one of many five four decisions among the insular cases.
Speaker 1: Just in case folks are not from the US, they
Speaker 1: don't necessarily know how the Supreme Court is set up.
Speaker 1: There are nine justices, and so in a lot of
Speaker 1: these cases, the decision was five to four. A dissent
Speaker 1: by Chief Justice Fuller included the statement quote great stress
Speaker 1: is thrown upon the word incorporation, as if possessed of
Speaker 1: some occult meaning. Justice John M. Harlan also penned a
Speaker 1: dissent of his own, which set in part quote these
Speaker 1: are words of weighty import. They involve consequences of the
Speaker 1: most momentous character. I take leave to say that if
Speaker 1: the principles thus announced should ever receive the sanction of
Speaker 1: a majority of this Court, a radical and mischievous change
Speaker 1: in 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 life legislative absolutism. Together, these nineteen oh one cases
Speaker 1: established the idea that Puerto Rico, Hawaii, the Philippines, Samoa,
Speaker 1: and Guam were part of the United States in some
Speaker 1: ways but not others, and could stay that way indefinitely.
Speaker 1: Cases that followed later in the early twentieth century also
Speaker 1: outlined limits on the constitutional rights of people living in
Speaker 1: these territories. As we said earlier, some scholars consider these
Speaker 1: later cases to be part of the insular cases, and
Speaker 1: some do not. As a few examples, Door versus United
Speaker 1: States decided in nineteen oh four looked at the question
Speaker 1: of whether residents of the Philippines had the right to
Speaker 1: a trial by jury. The right to a jury trial
Speaker 1: is outlined in the sixth Amendment to the Constitution, but
Speaker 1: the Court ruled that it would only apply in the
Speaker 1: Philippines if Congress enacted legislation to establish that right. Hawaii
Speaker 1: versus Mankiche was similar, finding that the right to a
Speaker 1: jury trial had not existed in Hawaii in the window
Speaker 1: between when the US annexed it and when Congress passed
Speaker 1: an Act to provide a government for the Territory of
Speaker 1: Hawaii in nineteen hundred. This act bestowed US citizenship on
Speaker 1: the people who had been citizens of the Republic of
Speaker 1: Hawaii as of August twelfth, eighteen ninety eight. So once
Speaker 1: people in Hawaii were considered to be US citizens, they
Speaker 1: were entitled to a trial by jury. But when Hawaii
Speaker 1: was a US territory whose residents were not citizens, they
Speaker 1: were not entitled to a jury trial. Gonzales versus Williams
Speaker 1: was decided in nineteen oh four. Although Puerto Ricans were
Speaker 1: not considered US citizens at that time, they were supposed
Speaker 1: to be able to travel freely to the United States.
Speaker 1: Isabella Gonzalez had tried to join her fiance in New York,
Speaker 1: but was turned away at port. She was pregnant, and
Speaker 1: authorities described her as an alien who was likely to
Speaker 1: become a public charge. The court found that she was
Speaker 1: not an alien and should not have been denied entry
Speaker 1: into New York, but also did not find that she
Speaker 1: was a citizen. This case is sometimes cited as a
Speaker 1: factor in Puerto Rican's ultimately being given citizenship as part
Speaker 1: of the Jones Schafroth Act in nineteen seventeen. When I
Speaker 1: got to this part, I was like, I kind of
Speaker 1: wish I had done a whole episode on this one case,
Speaker 1: which might happen at some point in the future. We
Speaker 1: still could.
Speaker 2: 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. Balzac, editor
Speaker 1: of a Puerto Rican daily newspaper, had been charged with libel.
Speaker 1: So 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 the Amendment right
Speaker 1: to a jury trial did not apply, and that Balzac's
Speaker 1: published work was not protected by the rights to free
Speaker 1: speech or a free press. There are a lot of
Speaker 1: contradictions among these cases and sometimes within the cases themselves.
Speaker 1: As we said earlier, many were decided five to four,
Speaker 1: and often those five justices agreed on the outcome but
Speaker 1: not on the reasoning behind it. But together they established
Speaker 1: what's known as the incorporation Doctrine. They outlined differences between
Speaker 1: incorporated and unincorporated territories and set the stage for the
Speaker 1: United States to be able to claim unincorporated territories in
Speaker 1: perpetuity without allowing them to enter the Union as states
Speaker 1: or de annexing them. While the US Constitution established the
Speaker 1: nation as a representative democracy, the Insular cases set aside
Speaker 1: several territories territories that were inhabited primarily by Hispanic and
Speaker 1: Indigenous people as not entitled to full particition, patient or
Speaker 1: representation in that democracy. While as we said earlier, these
Speaker 1: cases still stand, there have of course been some shifts
Speaker 1: in details over the last century. The Philippines became independent
Speaker 1: from the United States in nineteen forty six after being
Speaker 1: occupied by Japan during World War Two. Japan had actually
Speaker 1: declared the Philippines independent in nineteen forty three, sort of
Speaker 1: trying to get the support of Filipinos during this occupation.
Speaker 1: As we said earlier, the people of Puerto Rico were
Speaker 1: granted statutory citizenship in nineteen seventeen, and in nineteen fifty
Speaker 1: Public Law six hundred authorized the people of Puerto Rico
Speaker 1: to draft their own constitution, so Puerto Rico today is
Speaker 1: considered to be self governing. Hawaii became a state in
Speaker 1: nineteen fifty nine, a process that took more than fifty years,
Speaker 1: due in part to racist attitudes against the archipelago's native
Speaker 1: Hawaiian and Asian residents. While voters in Hawaii overwhelmingly ratified
Speaker 1: at statehood, many Native Hawaiians have pushed instead for Hawaiian
Speaker 1: independence and sovereignty. Residents of Guam gained US citizenship under
Speaker 1: the Guam Organic Act of nineteen fifty after having been
Speaker 1: essentially abandoned by the United States and left to a
Speaker 1: horrific occupation by Japan during World War Two. Today, American
Speaker 1: Samoans are considered US nationals, but not US citizens. You
Speaker 1: can say this of all of these places, but the
Speaker 1: United States has definitely been most focused on them when
Speaker 1: it has been like the most within US interests to
Speaker 1: do so so, Like there's the most focused on the
Speaker 1: well being of Guam when there's a like strategic military
Speaker 1: reason to do so for some reason, and like This
Speaker 1: abandonment of Guam during World War Two is kind of
Speaker 1: the US did basically just like cut his losses. We
Speaker 1: mentioned the Northern Mariana Islands and the US Virgin.
Speaker 2: Islands the top of the show. They have not come up.
Speaker 1: Again because they were not US territories when the first
Speaker 1: Insular cases were decided. The US purchased the US Virgin
Speaker 1: Islands from Denmark in nineteen seventeen. The Northern Mariana Islands
Speaker 1: became a US territory in nineteen seventy five, even though
Speaker 1: neither was a US territory when the original Insular cases
Speaker 1: were being argued and decided. They're both considered unincorporated territories.
Speaker 1: Following this same model that the Insular cases established, the
Speaker 1: US Virgin Islands, American Samoa, and Guam are all on
Speaker 1: the United Nations list of non self governing territories. Broadly speaking,
Speaker 1: people living in these territories are considered to be entitled
Speaker 1: to fundamental constitutional rights, but not necessarily to others, and
Speaker 1: opinions can also differ on which rights should be considered fundamental.
Speaker 1: The unincorporated territories are not represented by the Electoral College
Speaker 1: in presidential elections. They are represented by one delegate each
Speaker 1: in the House of Representation, it is who can serve
Speaker 1: on committees and can introduce legislation, but cannot vote. There
Speaker 1: are actually six total non voting members of the House.
Speaker 1: The sixth one represents Washington d C. So, as is
Speaker 1: the case with the unincorporated territories, residents of Washington d C.
Speaker 1: Don't have the same representation in Congress as people who
Speaker 1: live in what the states do. A key difference here, though,
Speaker 1: is that the Constitution itself outlines the creation of a
Speaker 1: district to serve as the seat of the government.
Speaker 2: Washington d C.
Speaker 1: Did not come about because the Supreme Court kind of
Speaker 1: made up but justification to do so. At this point,
Speaker 1: there's near unanimous agreement among historians and constitutional law scholars
Speaker 1: that the insular cases are rooted in racism and colonialism,
Speaker 1: but there's less agreement about what the outcome would be
Speaker 1: if these cases were overturned, and whether that outcome would
Speaker 1: ultimately be positive for people who would be affected. And
Speaker 1: in more recent years, they're some attempts to use these
Speaker 1: decisions to try to protect the rights of people who
Speaker 1: are living in these territories. For example, in the US,
Speaker 1: it would be considered unconstitutional to pass laws tying property
Speaker 1: ownership to race. Theoretically, since the unincorporated territories don't have
Speaker 1: full constitutional protection, it would be possible to pass laws
Speaker 1: giving these islands indigenous people's preference in terms of land
Speaker 1: ownership based on their race, which could help protect their
Speaker 1: connections 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.
Speaker 2: Still be overturned.
Speaker 1: Yeah, And to be very clear, the only reason I
Speaker 1: said there is near unanimous agreement instead of just unanimous
Speaker 1: agreement is because I know if we say unanimous, we're
Speaker 1: gonna get an article somebody sends to us that's like,
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 due
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 case uses can claim support in academic work of
Speaker 1: the period, ugly racial stereotypes and the theories of social Darwinists,
Speaker 1: but they have no home in our Constitution or its
Speaker 1: original understanding. The case that the Supreme Court declined to
Speaker 1: hear last year was Fitisimanu versus United States that was
Speaker 1: brought by three American Samoans living in Utah. They argued
Speaker 1: that the Fourteenth Amendment's birthright citizenship clause should apply to
Speaker 1: the people of American Samoa. While American Samoans who moved
Speaker 1: to the United States can apply for citizenship, they're not
Speaker 1: guaranteed citizenship. They are also denied various rights like voting
Speaker 1: and running for office until they become citizens if those
Speaker 1: applications are successful. As we said at the top of
Speaker 1: the show, people in American Samoa have varying opinions on
Speaker 1: these issues. In this case, the government of American Samoa
Speaker 1: and Congresswoman al Mua Amada, who represents American samo submitted
Speaker 1: a brief opposing this idea. It read, in part quote,
Speaker 1: the citizenship clause does not require imposing birthright citizenship on
Speaker 1: the people of American Samoa over the objection of their
Speaker 1: elected representatives and government, and in violation of their basic
Speaker 1: right to self determination. This brief stress the importance of
Speaker 1: FAA Samoa, or the Samoan culture and way of life,
Speaker 1: arguing that FAA Samoa is fundamentally important to the Samoan
Speaker 1: people and that imposing birthright citizenship on American Samoa would
Speaker 1: undermine it. The Samoan Federation of America, which supports and
Speaker 1: advocates for Samoan Americans living in the United States, was
Speaker 1: one of the organizations that submitted a brief supporting the petitioners. Yeah, so,
Speaker 1: as we said earlier, people are not a monolith. There
Speaker 1: are varying opinions on this. There were more briefs submitted
Speaker 1: in support of applying birthright citizenship to American Samoa, but
Speaker 1: also a lot of people currently living in American Samoa
Speaker 1: who really that's not what we want though, a lot
Speaker 1: of these things are complicated and we 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 2: A lot of.
Speaker 1: These places have uh, disproportionately higher participation in military service,
Speaker 1: so there are a lot of military veterans, but uh,
Speaker 1: you know, military veterans and returning to these places aren't
Speaker 1: able to do things like vote president afterward. And in
Speaker 1: some cases the veterans services in their local areas are
Speaker 1: a business.
Speaker 2: Good. Yeah, I was reading.
Speaker 1: I was reading one thing about people from Guam needing
Speaker 1: particular veteran services and having to go to Hawaii to
Speaker 1: get them, which is like four thousand miles away. So anyway,
Speaker 1: do you have listened mail? I do I have listener mail?
Speaker 1: It is from Miranda. Miranda wrote after our Two Sergeants
Speaker 1: episode and said, Holly and Tracy, longtime listener, first time writer.
Speaker 1: I was listening to your episode on Judith and Emily's
Speaker 1: sargent and a name caught my attention, Minister Gordon Gibson.
Speaker 1: Imagine my shock to hear the name of the retired
Speaker 1: Unitarian minister who used to be my neighbor. I'm just
Speaker 1: going to put a note here to say that Gordon
Speaker 1: Gibson is still living, is retired. We don't normally talk
Speaker 1: a lot about living people in the show, but then
Speaker 1: in this case, this case, we're talking about a thing
Speaker 1: related to like their historical connection. So this email went
Speaker 1: on to say, it was interesting to learn about an
Speaker 1: early Unitarian in the form of Judith, who participated in
Speaker 1: slavery as an institution. When I usually picture Unitarians as
Speaker 1: being abolitionists, it's a fascinating juxtaposition that mister Gibson discovered
Speaker 1: those papers.
Speaker 2: As he was.
Speaker 1: Very active in the civil rights movement. He was arrested
Speaker 1: in Alabama and founded a project to keep the history
Speaker 1: of the civil rights movement alive. He was the only
Speaker 1: Unitarian Universalist minister in Mississippi from nineteen sixty nine to
Speaker 1: nineteen eighty four. I'm always fascinated by the intersection of
Speaker 1: historical people and moments with each other over and through
Speaker 1: time and I was so tickled to hear his name.
Speaker 1: He's retired now but still very active in the community.
Speaker 1: I alas have moved away, but I'm very proud to
Speaker 1: have known him. Attaching my pet tax Scottie is my
Speaker 1: bad tempered nine year old calico. Her sweet face is
Speaker 1: a lie and the flufey baby boy is Willow, just
Speaker 1: over a year and very naughty. These cats are definitely adorable.
Speaker 1: We have one in a little cat sort of one
Speaker 1: of those sort of like plushy little cat houses, which
Speaker 1: we have a similar one at our house that is
Speaker 1: gray that one of our kitty cats likes to lie
Speaker 1: in in a very similar position.
Speaker 2: So thank you so much for sending that.
Speaker 1: This comment about Judas Sergeant Murray participating in slavery at
Speaker 1: a time when Miranda usually pictures Unitarians as being abolition
Speaker 1: reminded me a little bit of Benjamin Leigh, who we
Speaker 1: covered on this show a few years ago, who was
Speaker 1: a Quaker, not a Unitarian, but was expelled from congregations
Speaker 1: for his incredibly vocal denunciation of slavery at a time
Speaker 1: when like a number of Quakers were participating in slavery.
Speaker 1: So that just sort of reminded me of that a
Speaker 1: little bit. I don't know if we have run that
Speaker 1: episode as a Saturday Classic, but maybe if not, I
Speaker 1: might line that up. Having been reminded, Benjamin Lee is
Speaker 1: one of my favorite historical figures. So thank you so much,
Speaker 1: Miranda for this email in these cat pictures and this
Speaker 1: note about things that I did not know about Gordon Gibson.
Speaker 1: If you would like to write to us, store at
Speaker 1: History Podcasts at ieartradio dot com. And we're on social
Speaker 1: media as Missed in History, so you'll find our Facebook
Speaker 1: formerly Twitter, Pinterest, and Instagram, and you can subscribe to
Speaker 1: our show on the iHeartRadio app and wherever you like
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