The Volokh Conspiracy
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My Jotwell Review of Michael Ramsey's "The Originalist Case Against the Insular Cases"
The article makes a compelling argument that has broader implications.
My just-published Jotwell review focuses on Michael Ramsey's important new article,, "The Originalist Case Against the Insular Cases." Here is an excerpt:
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….
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…."
Ramsey also demonstrates that this conclusion is consistent with federal policy and Supreme Court precedent of the pre-Civil War era. The tradition was continued in the initial aftermath of the Reconstruction Amendments. For example, it was generally understood that children born in federal territories were entitled to birthright citizenship.
That longstanding body of precedent was undercut by the Insular Cases as a result of the racism and imperialism of the late nineteenth and early twentieth centuries…
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….
Even if completely invalidating federal immigration restrictions entirely would be too great a break with precedent, federal courts would at least do well to rule that such restrictions are subject to the same individual rights and structural constraints as all other legislative powers…
