by Stephen I. Vladeck, Professor, University of Texas School of Law
*This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.
None of the capsule summaries of the Supreme Court’s most recent Term will likely include the Justices’ June 9 ruling in Puerto Rico v. Sanchez Valle—in which a 6-2 majority held that Puerto Rico and the federal government are not separate sovereigns for purposes of the Fifth Amendment’s Double Jeopardy Clause, and so they cannot each prosecute the same person for the same criminal offense. Nor will even the most comprehensive assessments likely so much as mention the Court’s denial of certiorari, four days later, in Tuaua v. United States—in which the D.C. Circuit had held that individuals born in American Samoa are not entitled to birthright citizenship under the Citizenship Clause of the Fourteenth Amendment. But at the end of a Term with bigger headlines, and which may come to be seen more generally as the beginning of a new era, the reasoning in Sanchez Valle and the denial of certiorari in Tuaua highlight the Justices’ continuing unwillingness to revisit one of the more troubling chapters in the Court’s history—the early-twentieth century decisions known as the Insular Cases.
The Insular Cases refer to dozens of rulings (there’s disagreement as to exactly how many) handed down by the Supreme Court in the first decades of the twentieth century concerning the applicability (or lack thereof) of different constitutional provisions to those residing in the United States’ nascent “insular” possessions—territories such as Puerto Rico, the Philippines and even Panama (never mind that it’s not an island).
Although the Insular Cases cannot easily be summarized, the basic framework they articulated was to distinguish between how the Constitution applied in “incorporated” territories (i.e., territories “destined for statehood”) versus “unincorporated” territories—and to only apply the entire Constitution to the former. Whether specific provisions applied in the “unincorporated” territories turned on case-by-case assessments of whether the constitutional provision at issue was sufficiently “fundamental”—although, to be clear, the answer was usually “no.” Thus, constitutional protections ranging from the right to uniform import and export prices to the right to a jury trial in criminal cases were held inapplicable to many—if not most—of the United States’ new possessions, five of which (American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico and the U.S. Virgin Islands) continue to fly an American flag to this day.