At Jotwell, Ilya Somin reviews (favorably) my article The Originalist Case Against the Insular Cases (77 Fla. L. Rev. 517 (2025): Originalism and the Insular Cases. From the introduction:
In the Insular Cases of the early twentieth century, the Supreme Court ruled that much of the Constitution does not apply to America’s “unincorporated” overseas territories, such as Puerto Rico and other territories acquired as a result of the Spanish-American War of 1898. Thus, the federal government could rule the people there without being constrained by a variety of constitutional rights. Only “fundamental” rights were held to constrain the federal government’s powers over the inhabitants of these territories, while other constitutional constraints on federal power did not apply. In a 2022 concurring opinion, Supreme Court Justice Neil Gorsuch urged the Court to overrule these decisions. Prominent originalist legal scholar Michael Ramsey’s important new article explains why Gorsuch was right.
Ramsey compellingly demonstrates that the Insular Cases were wrongly decided, at least from an originalist standpoint. And his argument has potential implications that go beyond the status of people living in “unincorporated” territories. There have been various previous critiques of the Insular Cases. But Ramsey’s is the first systematic scholarly dismantling undertaken from an originalist perspective.
The unincorporated territories currently include American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands, plus some minor islands with little or no human population.
In a detailed examination of the text and original meaning of the Constitution’s Territories Clause and other relevant provisions, Ramsey shows that “under the Territory Clause, Congress’s power over U.S. territory [outside the states] is very broad, essentially amounting to a general police power.” But he argues persuasively that “the grant to Congress of general police power in territories does not suggest that Congress is thereby freed of other specific limitations on Congress’s power arising from the Constitution’s structural and individual rights provisions.” The only exceptions are provisions that explicitly apply only to the states, such as the Guarantee Clause of Article IV, which guarantees to the states a “republican” government.
Ramsey also demonstrates that this conclusion is consistent with federal policy and Supreme Court precedent of the pre-Civil War era. …
Thanks!
Posted at 6:04 AM