I have posted my new paper The Originalist Case Against the Insular Cases (77 Florida Law Review (forthcoming 2025)) (78 pages) on SSRN. Here is the abstract:
Concurring in United States v. Vaello Madero, Justice Neil Gorsuch argued that the Insular Cases are contrary to the Constitution’s original meaning and should be overruled. The Supreme Court’s decisions in the Insular Cases, which created a second-class constitutional status for U.S. overseas territories, have also been criticized by leading originalist scholars such as Professors Gary Lawson and Michael Paulsen. However, there is no fully developed scholarly assessment of the Insular Cases from an originalist perspective; their inconsistency with an originalist approach is more assumed than proven. This Article fills that gap. Using the methodology of original public meaning, it considers the constitutional status of U.S. territories from the founding era through the early nineteenth century to the constitutionalization of U.S. citizenship in the Fourteenth Amendment.
Although the matter is somewhat more complicated than Justice Gorsuch’s concurrence may suggest, this Article finds no foundation in traditional originalist sources for the Insular Cases’ differential treatment of overseas territories. To the contrary, it concludes that U.S. territories were widely understood to be broadly encompassed by the Constitution without differentiation until an academic and judicial reassessment at the beginning of the twentieth century, impelled by U.S. acquisition of territories with substantial non-white populations, set the stage for the Court’s newly invented doctrine. This Article thus concludes that Justice Gorsuch’s assessment is correct and should carry weight with the Court’s originalist-oriented majority. Finally, this Article examines from an originalist perspective the implications for territorial government of overruling the Insular Cases, which it concludes would be significant but not substantially destabilizing.
At Legal Theory Blog, Larry Solum says "Download of the Week" and "Highly recommended. Download it while it's hot!" (Thanks!)
At Volokh Conspiracy, Ilya Somin comments favorably here (thanks again!), with this additional point:
I would add that the Insular Cases are not the only important nonoriginalist, atextual abrogations of constitutional rights blessed by the Supreme Court as a result of late-19th century racial bigotry. The same is true of the "plenary power" doctrine, which exempts immigration restrictions from many of the constitutional constraints that apply to all other exercises of federal power. While later decisions have called elements of this doctrine into question, enough remains that it is not completely clear whether, for example, the government can deport immigrants for speech protected by the First Amendment (though I argue the answer should be an emphatic "no").
I agree on the historical/doctrinal link between the Insular Cases and the plenary power doctrine. I think the late-nineteenth/early-twentieth century Court thought (correctly) that the U.S. was facing radically new circumstances in foreign affairs and also thought (inappropriately in my view) that it needed to relax constitutional rules to give the political branches more flexibility to respond.
Posted at 6:02 AM