The Insular Cases

							         The Insular Cases



Does the Constitution follow the Flag?
           The Insular Cases
Major cases decided May 27, 1901 (seven):

      De Lima v. Bidwell, 182 U.S. 1 (1901)
      Goetze v. United States, 182 U.S. 221 (1901)
      Crossman v. United States, 182 U.S. 221 (1901)
      Dooley v. United States, 182 U.S. 222 (1901) (“Dooley I”)
      Armstrong v. United States, 182 U.S. 243 (1901)
      Downes v. Bidwell, 182 U.S. 244 (1901)
      Huus v. New York and Porto Rico Steamship Co., 182 U.S.
       392 (1901)
          The Insular Cases



The term “the Insular Cases” denotes anywhere
from seven to nine to twenty-three Supreme
Court cases.
                  The Insular Cases

“The result of what has been said is that while in an international
sense Porto Rico was not a foreign country, since it was subject to
the sovereignty of and was owned by the United States, it was
foreign to the United States in a domestic sense, because the island
had not been incorporated into the United States, but was merely
appurtenant thereto as a possession.”


                       Downes, 182 U.S. 244, 341-342 (1901) (emphasis added)
            The Insular Cases


“The act is entitled ‘An act to provide a civil
government for Porto Rico and for other purposes.’ It
does not indicate by its title that it has a purpose to
incorporate the island into the Union.”


                         Balzac v. Porto Rico, 258 U.S. 298, 306 (1922)
               The Insular Cases

“This was one of the chief grounds upon which this court
placed its conclusion that Alaska had been incorporated in the
Union in Rasmussen v. United States, 197 U.S. 516. But
Alaska was a very different case from that of Porto Rico. It
was an enormous territory, very sparsely settled, and offering
opportunity for immigration and settlement by American
citizens. It was on the American continent and within easy
reach of the then United States. It involved none of the
difficulties which incorporation of the Philippines and Porto
Rico presents, and one of them is in the very matter of trial
by jury.”

           Balzac v. Porto Rico, 258 U.S. 298, 309 (1922) (Citations omitted)
                    The Insular Cases

“It was further settled in Downes v. Bidwell, 182 U. S. 244, and
confirmed by Dorr v. United States, 195 U. S. 138, that neither
the Philippines nor Porto Rico was territory which had been
incorporated in the Union or become a part of the United
States, as distinguished from merely belonging to it; and that
the acts giving temporary governments to the Philippines, 32
Stat. 691, and to Porto Rico, 31 Stat. 77, had no such effect.”



  Balzac v. Porto Rico, 258 U.S. 298, 305(1922)(emphasis in bold added.) (Citations omitted)
NINTH CIRCUIT
        The Insular Cases



CNMI v. Atalig, 723 F.2d 682 (9th Cir. 1984)
            (Due Process/Sixth Amendment)
                          The Insular Cases
“The history of incorporation of the Bill of Rights under the Due
Process Clause also makes us reluctant to apply Duncan to the
Insular Cases. That history reveals that the Court proceeded
cautiously with this incorporation. Through this gradual Process
in the century following ratification of the Fourteenth
Amendment, nearly all the rights guaranteed in the Bill of Rights
have been found applicable to the states. We believe that a
cautious approach is also appropriate in restricting the
power of Congress to administer overseas territories. Were
we to apply sweepingly Duncan's definition of
"fundamental rights" to unincorporated territories, the
effect would be immediately to extend almost the entire Bill
of Rights to such territories. This would repudiate the
Insular Cases. We are not prepared to do so nor do we think we
are required to do so.”

  Com. of Northern Mariana Islands v. Atalig, 723 F.2d 682, 690 (9th Cir. 1984)(emphasis added)
           The Insular Cases



Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir. 1990)
                (Equal Protection/Article XII)
                            The Insular Cases
“We think it clear that interposing this constitutional provision would be both impractical and
anomalous in this setting. Absent the alienation restriction, the political union would not be
possible. Thus, application of the constitutional right could ultimately frustrate the mutual
interests that led to the Covenant. It would also hamper the United States' ability to form
political alliances and acquire necessary military outposts.

“For the NMI people, the equalization of access would be a hollow victory if it led to the loss
of their land, their cultural and social identity, and the benefits of United States sovereignty. It
would truly be anomalous to construe the equal protection clause to force the United States to
break its pledge to preserve and protect NMI culture and property. The Bill of Rights was not
intended to interfere with the performance of our international obligations. Nor was it
intended to operate as a genocide pact for diverse native cultures.


“Its bold purpose was to protect minority rights, not to enforce homogeneity. Where land
is so scarce, so precious, and so vulnerable to economic predation, it is understandable that the
islanders' vision does not precisely coincide with mainland attitudes toward property and our
commitment to the ideal of equal opportunity in its acquisition. We cannot say that this
particular aspect of equality is fundamental in the international sense. It therefore does not
apply ex proprio vigore to the Commonwealth. Accordingly, Congress acted within its
power in enacting sections 501(b) and 805 of the Covenant, and Article XII is not subject
to equal protection attack.”
                                   Wabol v. Villacrusis, 958 F.2d 1450, 1462 (9th Cir. 1990)
                                             (emphasis added/internal citation omitted)
DOES TIME CHANGE ALL
       THINGS?

Boumediene v. Bush, 553 U.S. 723 (2008)
             The Insular Cases
“It may well be that over time the ties between the United
States and any of its unincorporated Territories strengthen in
ways that are of constitutional significance. Cf. Torres v.
Puerto Rico, 442 U.S. 465, 475-476, 99 S.Ct. 2425, 61
L.Ed.2d 1 (1979) (Brennan, J., concurring in judgment)
(“Whatever the validity of the [Insular Cases] in the particular
historical context in which they were decided, those cases are
clearly not authority for questioning the application of the
Fourth Amendment-or any other provision of the Bill of
Rights-to the Commonwealth of Puerto Rico in the
1970's”).” (553 U.S. at 758)

             Boumediene v. Bush, 553 U.S. 723, 758 (2008) (emphasis added.)
              The Insular Cases
“Third, if the Government's reading of Eisentrager were correct, the
opinion would have marked not only a change in, but a complete
repudiation of, the Insular Cases' (and later Reid's) functional
approach to questions of extraterritoriality. We cannot accept the
Government's view. Nothing in Eisentrager says that de jure
sovereignty is or has ever been the only relevant consideration in
determining the geographic reach of the Constitution or of habeas
corpus. Were that the case, there would be considerable tension
between Eisentrager, on the one hand, and the Insular Cases and
Reid, on the other. Our cases need not be read to conflict in this
manner. A constricted reading of Eisentrager overlooks what we
see as a common thread uniting the Insular Cases, Eisentrager,
and Reid: the idea that questions of extraterritoriality turn on
objective factors and practical concerns, not formalism.”

                              Boumediene v. Bush, 553 U.S. 723, 764 (2008)
                     Panelists
•   Territory of Guam v. Olsen, 431 U.S. 195 (1977) [H. Trapp]
•   Chase Manhattan Bank (Nat. Ass’n) v. South Acres Dev. Co.,
    434 U.S. 236 (1978) [H. Trapp]
•   Ngiraingas v. Sanchez, 495 U.S. 182 (1990) [P. Mason]
•   People of the Territory of Guam v. Okada, 694 F.2d 565 (9th
    Cir. 1982) [H. Trapp]
•   Com. of Northern Mariana Islands v. Atalig, 723 F.2d 682 (9th
    Cir. 1984) [W. Fitzgerald]
•   Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285 (9th Cir.
    1985) [W. Fitzgerald]
           The Insular Cases
The Downes Question:


 Is Guam “foreign to the United States in a
 domestic sense”?
             The Insular Cases

   The Boumediene Question:

    Over time, have the “ties” between the
    United States and Guam strengthened
    “in ways that are of constitutional
    significance.”?