The Insular Cases (1901) – Guest Essayist: Joerg Knipprath

A large mural in the Capitol Building in Washington is titled “Westward the Course of Empire Takes Its Way.” It was painted by Emanuel Leutze in 1861 as a representation of Manifest Destiny, the optimistic world view of 19th century Americans that the country inevitably would be settled from the Atlantic Ocean to the Pacific. Manifest destiny was not a strategy or even a policy, but a slogan that represented an aspiration. It was the emergence of an American Empire. It might be a republic in form, but it would be an empire in expanse, wealth, and glory. The term was frequently used even by good American republicans, such as Thomas Jefferson, James Madison and John Marshall, when discussing their political philosophy.

Among the political elite not all shared the vision of a march across the continent. Jefferson may have justified his purchase of Louisiana territory by satisfying himself that enough land was acquired to realize for the next two centuries his ideal of a large agrarian republic. But their enthusiasm for continental expansion flagged as sectionalism and slavery came to dominate national debate. The Whigs opposed the annexation of Texas, and the Mexican War. They wrapped themselves in the mantle of virtuous republicanism by characterizing the latter as a war of conquest and the imposition of American rule against the consent of the governed in the occupied territory. In reality, their opposition to Manifest Destiny was more basic. The Whigs’ political center was in the North. The territory at issue in the 1840s was mostly in the South, increasing the likelihood that future slave states would be carved out of it and give the “peculiar institution” an extended lease on life.

In 1893, Frederick Jackson Turner proposed his influential theory that the movement of the American frontier shaped the American character and political structure. That movement across the continent ended in 1890. Soon the issue became whether expansion would continue beyond the Golden Gate, and how that would affect national character and political structure. The national debate erupted with the proposed annexation of Hawaii in the early 1890s that was rejected by President Cleveland. The matter came to a head with the Spanish-American War.

It was a very popular war. To some, it represented a catharsis of the emotional wounds lingering from the Civil War, as men from North and South fought together. To others, it represented the idea, traceable to Thomas Jefferson, that the United States had a duty to spread liberty across the continent and abroad. Still others viewed the war more broadly as a duty to bring progress and civilization to backwards races. Rudyard Kipling’s poem, “The White Man’s Burden,” was his somber perspective of the Spanish-American War.

Opponents’ arguments were generally of two sorts. One group opined that, whatever the merits of the earlier continental expansion, that destiny had been achieved. The new variety was colonialism, pure and simple, and not befitting a republic. The arguments made by the Whigs against the Mexican War a half-century earlier were resuscitated: Republics do not conquer other lands and do not impose a government without consent of the governed. Though those assertions do not bear the weight of history, they appealed to American idealism and republican virtue.

The other group emphasized the folly of nation-building and trying to graft Western values and American republicanism onto alien cultures who neither wanted them nor were sufficiently advanced to make them work. Both groups could take their cue from John C. Calhoun, who, in 1848, had orated against the fanciful proposal to annex all of Mexico, “We make a great mistake in supposing that all people are capable of self-government.  Acting under that impression, many are anxious to force free Governments on all the people of this continent, and over the world, if they had the power.  It has been lately urged in a very respectable quarter, that it is the mission of this country to spread civil and religious liberty over all the globe, and especially over this continent — even by force, if necessary.  It is a sad delusion.  None but a people advanced to a high state of moral and intellectual excellence are capable in a civilized condition, of forming and maintaining free Governments ….” Calhoun’s argument in part was racial, not just cultural, and the anti-imperialists in 1898 echoed those views. At least as a warning against excessive idealism and expeditionary zeal, those views still have currency.

The war was a smashing military success, and the question became what to do with the peace. The anti-imperialists now argued that, with the United States having taken control of these new territories, the Constitution applied, ex proprio vigore. “The Constitution follows the flag,” became the slogan. Neither President William McKinley, who had been a reluctant warrior, nor Congress had a clear political policy. As it turned out, the Constitution provided no clear principle. The eventual settlement was neither unabashedly imperialist nor the opposite.

In a series of cases called the Insular Cases, the Supreme Court over two decades attempted to hammer out the constitutional ramifications of the United States’ limited foray into colonialism. The first of these was Neely v. Henkel (1901), in which the Court unanimously agreed that the Constitution did not apply in Cuba because the declaration of war against Spain promised independence to the people as soon as American forces had pacified the island, a promise kept in 1902. Thus, effectively, Cuba was already a foreign country not under the umbrella of the Constitution. The Philippine people were also promised independence, a process that took several decades, due to military exigencies. Thus, the Constitution did not apply there, at least not tout court, as the Court affirmed beginning in Dorr v. U.S. (1904).

More muddled was the status of Puerto Rico, where social, political, and economic conditions did not promise an easy path. There was no promise of independence. Rather, the peace treaty expressly stated that Congress would determine the political status of the inhabitants. In 1900, Congress passed the Foraker Act, which set up a civil government patterned on the old British imperial system with which Americans were familiar. The locals could elect an assembly, but the President would appoint a governor and executive council. The Act also imposed duties on the export of oranges and sugar from the island to protect American growers.

Alexis de Tocqueville wrote, “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.” As a corollary, matters of profound constitutional importance may arise out of mundane disputes. The constitutional status of Puerto Rico was litigated at length and with great divergence of opinion in Downes v. Bidwell in 1901. Downes imported oranges and was charged by the customs inspector in New York, Bidwell, with the import duty under the Foraker Act. Downes sued to recover the duty. He claimed that the statute was unconstitutional because Article I, Section 8, of the Constitution requires that all duties must be uniform throughout the United States and, further, because Article I, Section 9, provides that vessels bound from one state shall not be required to pay duties in another. Bidwell responded that Puerto Rico was not a state and was not part of the United States. The Supreme Court, by 5-4, rejected Downes’s argument and upheld the duty. The opinion was written by Justice Henry Brown. However, the concurring opinion by Justice Edward White for himself and, effectively, three others, eventually became controlling law. Chief Justice Melville Fuller, joined by three others, dissented. Justice John Marshall Harlan also wrote a separate dissent.

All opinions went through lengthy discussions of constitutional text, history, and precedent. The crux of the issue ultimately was the meaning of the term “United States.” In their respective opinions, Brown and White agreed that the Constitution was formed by the people in the states. Beyond that, Brown asserted that Congress has plenary power in Article IV, Section 3, of the Constitution to admit new states and to make rules for territories belonging to the United States. Those territories belong to the United States but are not of the United States. Historical practice going back to the re-enacted Northwest Ordinance of 1787 showed that Congress legislated the nature and scope of rights of the territory’s inhabitants. As a general rule, then, the Constitution would not apply to territories, except to the extent that Congress specified through an organic act that established territorial governance.

Congress’s power was not completely boundless. Brown acknowledged certain “natural rights” in the Constitution that Congress could not violate. Among those were rights to personal liberty, property, free exercise of religion, and freedom of speech. Those rights were protected because they are universal to all humans, not because they happened to be listed in the Constitution. Here, the peace treaty with Spain had promised to protect religious freedom, but, even if it had not, the inhabitants’ natural right to its exercise would still have protected them. The right not to pay an import duty was not such a right.

Justice White disagreed with Brown as to what constituted the “United States.” The term included the states, to be sure, but also those “incorporated” territories that Congress set on a path to eventual statehood. Thus, the Old Northwest had been territory incorporated within the United States by the Treaty of Paris, which ended the Revolutionary War. This process of incorporation occurred during every expansion of the United States to the Pacific.

Congress, according to White, had absolute discretion to decide whether, and under what conditions, territory became incorporated. Mere acquisition, even by treaty, did not automatically make the territory part of the Union. However, if a treaty stipulated favorable conditions to incorporate the territory, and Congress did not repudiate those conditions, incorporation became effective. Until then, aside from certain “natural rights,” the inhabitants enjoyed only those rights that Congress chose to recognize. Once incorporation was done, however, the Constitution applied fully to those inhabitants except to the degree that document specifically excluded them. An example of the last would be that only states are represented in the Senate.

To retain flexibility for Congress as well as future courts for what was so fundamentally a political decision, White left ambiguous the specifics of how incorporation occurred. There might be specific language that showed Congress’s intent. Beyond that, the intent might be divined by considering contiguousness of the acquired territory to existing states, distance from the United States, and differences of race, culture, religion, and language. With Puerto Rico, unlike Louisiana, there was specific treaty language that left the future status open. Further, the various factors such as culture and language also weighed against incorporation. Therefore, the Constitution did not apply, as such, and the duty on imports from Puerto Rico was upheld.

The dissents of Chief Justice Fuller and Justice Harlan rejected the idea that Congress could decide whether or not the Constitution applied. Congress itself was a creature, not a creator. Thus, everything Congress did was controlled by the Constitution, including its power to make rules for territories. Harlan objected to the creation of official second-class status for the territories and their inhabitants. He protested that the idea that Congress could govern territories anywhere in the world as mere colonies was “wholly inconsistent with the spirit and genius as well as with the words of the Constitution.”

The Court’s or, more specifically, Justice White’s “incorporation” theory soon became majority doctrine, in part because White became Chief Justice in 1910. In Dorr v. U.S. (1904), Dowdell v. U.S. (1911), and–unanimously–Board of Public Utility Commissioners v. Ynchausti & Co. (1920), the Court declared that the Philippines were not incorporated territory, so none other than the Constitution’s basic natural rights protections such as against cruel and unusual punishment applied.

The Insular Cases remain important. In 2008, in Boumediene v. Bush, Justice Anthony Kennedy applied them to buttress his conclusion that unlawful enemy combatants held at Guantanamo Naval Base were protected under the Constitution. The United States had practical sovereignty due to a treaty, though formal sovereignty remained with Cuba. Kennedy did not claim that Guantanamo was “incorporated” into the United States, but founded his opinion on the historic use of the writ to protect fundamental personal liberty. He left open which, if any, constitutional rights the detainees could claim. His analysis is best understood as a version of the “natural rights” exception the Downes majority accepted.

The Insular Cases removed constitutional challenges to popular political initiatives of overseas expansion ratified by the election of 1900. The popular American humorist Finley Peter Dunne’s fictional Irish bartender, Mr. Dooley, explained it well, “No matter whether th’ constitution follows th’ flag or not, th’ Supreme Coort follows th’ election returns.”

The Insular Cases (1901) Supreme Court decision with a focus on Downes v. Bidwell (1901), for example: https://supreme.justia.com/cases/federal/us/182/244/case.html

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

One Response to “The Insular Cases (1901) – Guest Essayist: Joerg Knipprath”

  1. Publius Senex Dassault says:

    Very interesting topic.

    Observations:
    1. In Afghanistan and Iraq we have seen 1st hand the validity of Calhoun’s, ““We make a great mistake in supposing that all people are capable of self-government.” Some of his reason may be dubious, the conclusion seems validated.

    2. Chief Justice Fuller and Justice Harlan dissenting arguments “that Congress could decide whether or not the Constitution applied. Congress itself was a creature, not a creator. Thus, everything Congress did was controlled by the Constitution …” is very compelling to me.

    To paraphrase, is proper for the molded say to its molder, “Why have you made me like this?” Since when does the pot decide what the potter will make and when the potter shall make it, and whether what is made shall from the same lump: a colony, a territory, or a State.

    3. Separating natural rights is basic to our Declaration and Constitution. It is unfortunate we are inconsistent in protecting them. It seems we can casually, easily and blindly look the other way when defending natural rights is not in our immediate State interests. Eg., current human slave trade, war crimes in African, use of chemical weapons, killing of Christians by Muslims, etc.

    4. Manifest destiny was our path to who we are. With growing sectionalism and divergent core beliefs about the militant progressive liberalism agenda manifest disintegration may our future path.

    PSD

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