by Neil Weare. Mr. Weare is lead counsel in Tuaua v. United States, and President of We the People Project, a national organization working to achieve equal rights and representation for the nearly 5 million Americans living in U.S. territories and the District of Columbia. This post is part of an ACSblog symposium on the 50th Anniversary of the March on Washington for Jobs and Freedom.
On the 50th Anniversary of Martin Luther King, Jr.’s “I Have a Dream” speech, more than 4 million Americans living in U.S. territories – a population greater than that of nearly half the states – are still waiting to realize the dream.
Speaking from the Lincoln monument, King proclaimed that “When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir.” That promise has fallen far short for the residents of U.S. territories because of a series of controversial Supreme Court decisions known as the Insular Cases.
The Insular Cases considered whether the Constitution “follows the flag” to overseas territories acquired after the 1898 Spanish-American War. Breaking from prior precedent, they established a judicial doctrine recognizing two classes of U.S. territories: “incorporated” territories where the Constitution applies in full, and “unincorporated” territories where only certain constitutional rights apply.
First Circuit Judge Juan Torruella has criticized this as a “doctrine of separate and unequal,” comparing the Insular Cases to Plessy v. Ferguson, which just a few years before the Insular Cases had created a legal fiction to sanction racial segregation. As in Plessy, Justice John Marshall Harlan was a passionate dissenter in the Insular Cases, writing: “The idea that this country may acquire territories anywhere upon the earth . . . and hold them as mere colonies or provinces,-the people inhabiting them to enjoy only such rights as Congress chooses to accord to them,-is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution.”
Like Plessy, the Insular Cases belong in the dustbin of history. Just as our constitutional rights should not depend on the color of our skin, neither should they depend on where we live within the United States. Fortunately, the Insular Cases may be on the ropes.