Vol. 17 No. 2 (February, 2007) pp.176-180
THE INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE, by Bartholomew H. Sparrow. Lawrence, KS: The University Press of Kansas, 2006. 256pp. Cloth. $35.00. ISBN: 9780700614813. Paper. $16.95. ISBN: 9780700614820.
Reviewed by Joseph R. Reisert, Department of Government, Colby College. Email:
Jrreiser [at] colby.edu.
For the first century and a half of its existence, the history of the United States was that of uninterrupted territorial expansion. Although the Constitution has relatively little to say about the acquisition and government of new territories, a pair of common assumptions governed Federal policy towards all the mainland North American territories the United States acquired: that they would eventually be settled primarily by emigrants from existing states and that they would eventually be organized and admitted to the Union as constituent states.
At the close of the nineteenth century, however, victory in the war with Spain brought a new set of insular possessions: the islands or island groups of Cuba, the Philippines, Puerto Rico, and Guam. Unlike the territories of the American west, the islands were densely inhabited by non-white peoples who would not be displaced and dispossessed, as the Indians of North America had been. Moreover, Americans of the time widely agreed that, with such inhabitants, these island territories would not soon and might not ever be suitable for admission to the Union as states.
Turn of the century political opinion divided sharply over both the wisdom of acquiring an overseas empire and the constitutionality of doing so. Nevertheless, the imperialists prevailed, securing the annexation of Puerto Rico, Guam, and the Philippines and a role for the United States in the establishment of an independent state in Cuba. In effect, the political branches decided to treat the new insular possessions as colonies, whose people would enjoy fewer constitutional rights and protections than the inhabitants of the states.
That political decision set the stage for a series of lawsuits known collectively as the Insular Cases, in which the Supreme Court adjudicated the constitutional status of the insular possessions.
In THE INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE, Bartholomew H. Sparrow offers a detailed account of the Supreme Court’s handling of the numerous constitutional questions created by the emergence of an American colonial empire. A political scientist, Sparrow has produced an impressively researched and detailed work of political and legal history that accomplishes three significant tasks: first, it situates the decision to acquire overseas colonies within its contemporary political context and within the larger context of American territorial expansion; second, it describes in detail, analyzes, and offers an account of the public reaction to the thirty-five cases he classes among the Insular Cases; finally, it draws some conclusions about the nature of the empire America acquired at the turn of [*177]the twentieth century, parts of which it continues to administer today. Sparrow’s largest ambition for the work is “to move the Insular Cases back into prominence, to encourage their return to the legal ‘canon’ of Supreme Court cases – that is, to add them to the list of recognized Supreme Court cases essential for and familiar to students of constitutional law and U.S. political history” (p.10).
Sparrow’s account charts the path traversed by the Supreme Court and by the American polity from its initial state of bitter conflict over the constitutional status of the insular territories to the emergence of a consensus that has become so comfortable that the Insular Cases, which loomed so large when they were first decided, have now fallen into that obscurity from which Sparrow seeks to rescue them. Sparrow aims to unsettle complacency about the constitutional status of our remaining colonial possessions, both by reminding us of the powerful arguments for the constitutional roads not taken and by drawing attention to the moral ambivalence of the constitutional resolution we have reached.
To that end, Sparrow devotes a full chapter to the most controversial of the insular cases, DOWNES v. BIDWELL (1901) and three further chapters to the other thirty-four Insular Cases. The specific question at issue in DOWNES was whether the Foraker Act, which imposed a tariff on goods shipped from Puerto Rico to the mainland, violated either the uniformity clause of the Constitution (Article I, § 8) or the no preference clause (Article I, § 9, clause 6), or the no export duty clause (Article I, § 9, clause 5). In effect, however, the Court was being called upon to decide the larger question whether Puerto Rico was, or was not, a part of the United States.
By a vote of 5-4, the Court ruled for the Government and sustained the tariff, but no rationale commanded a majority of the Court. Although there were five separate opinions in DOWNES, there were effectively three distinct outlooks.
Justice Brown held that the United States, properly speaking, consisted only of the States, and that the Constitution applied, of its own force, only in the United States thus understood. The Congress having, with respect to other peoples the same sovereign powers belonging to any nation in the international system, it had plenary authority to rule territories as it saw fit. The Congress could elect to extend US law and constitutional protections to its territories, but without an act thus extending the Constitution’s reach, it would not apply outside the states. Because Puerto Rico, in his view, belonged to but was not a constituent part of the United States, the tariff was valid.
In their dissenting opinions, Chief Justice Fuller and Justice Harlan argued that the United States consisted of both the States and the territories and that the Constitution necessarily applies of its own force in the whole United States, including the territories. Puerto Rico having become a part of the United States by the Treaty of Paris, ratified in [*178] 1899, the tariff manifestly violated the uniformity clause.
Justice White articulated a middle position, first formulated by Abbott Lawrence Lowell, that though the Constitution applied throughout the states and territories, the full set of constitutional protections applied only in the states and in territories that Congress had “incorporated;” in the other, “unincorporated” territories, only a limited and unspecified set of fundamental constitutional protections would apply. The continental territories of the United States had all been incorporated, in White’s view, but the insular possessions had not. Because Puerto Rico remained an unincorporated territory, Congress remained at liberty to impose the tariff.
White’s incorporation doctrine was controversial at first, but in the end, it received the unanimous endorsement of the Court in BALZAC v. PORTO RICO (1922), the last of the Insular Cases Sparrow discusses. (Note that Puerto Rico was, at that time, officially denominated “Porto Rico” by the US government). In BALZAC, Chief Justice Taft ruled that the Sixth Amendment guarantee of a trial by jury did not apply to the unincorporated territory of Puerto Rico. This holding was in line with a series of other “law and order cases” in which the Supreme Court also held that a series of protections enjoyed by Americans on the mainland did not apply to persons (including US citizens) in the unincorporated, insular possessions. Rights not guaranteed in the unincorporated territories included the right to jury trial, the requirement of an indictment by a grand jury in felony cases, the right against self incrimination, the right “to be informed of the nature and cause of the accusation,” and the right to confront witnesses at trial.
Surveying the whole set of Insular Cases, Sparrow draws three conclusions about the Court’s doctrinal development. First, he finds that the Court generally deferred to the clearly expressed will of the Congress, whether that will was expressed in legislation or in the terms of a treaty, but that the Court was not similarly deferential either to the president or to the territorial governments. Second, he notes that the Court applied the incorporation doctrine flexibly, for example treating Alaska as incorporated territory, even though the Congress had not explicitly specified its intention to treat it so. Finally, he concludes that the debate over the incorporation doctrine was a preview of the more familiar debate over incorporation of the guarantees of the bill of rights into the due process clause of the Fourteenth Amendment. In Sparrow’s view, Justice Harlan’s theory that all the protections contained in the Constitution necessarily apply to all territories acquired by the United States finds its parallel in Justice Black’s theory that all the guarantees of the Bill of Rights apply to the States by virtue of the Fourteenth Amendment. Like Black, Harlan failed to command a majority of the Court; instead, the guarantees of the Bill of Rights were applied piecemeal to the states and the territories. [*179]
Sparrow might have said more, however, about another constitutional development which the Insular Cases also seem to presage: the Court’s acquiescence in 1937 and after to the effectively plenary authority of Congress to regulate the domestic economy. Justice Harlan’s allies in DOWNES, after all, were Justices Peckham, Brewer, and Chief Justice Fuller, defenders, in large part, of the legal doctrines displaced by the New Deal. And Justice Holmes, whose dissents laid the intellectual foundations for decisions legitimating the New Deal, also favored giving Congress a free hand in governing the territories; indeed, he first he favored the extension theory of Justice Brown before ultimately endorsing Justice White’s incorporation doctrine.
As a matter of political morality, Sparrow clearly finds the incorporation doctrine troubling, because it in effect treats inhabitants of the unincorporated territories as less than “full members” of the American political community (p.224). But he also favorably contrasts the holding of DOWNES with the rigidity of the Court’s repudiation of Congressional policy for the territories in DRED SCOTT and acknowledges that the flexibility the Court allowed to Congress enabled it to craft regulations appropriate to the distinctive circumstances of each territory (pp.226-227). His ambivalence about the incorporation doctrine is aptly expressed in his observation that “the inhabitants of the U.S. territories enjoy – suffer? – a political status between that of citizens of the states and foreign nationals” (p.228).
With respect to the development of an American territorial empire, Sparrow notes, the Court’s rulings had two, seemingly contradictory, effects. On the one hand, the Court legitimated the acquisition of a territorial empire by allowing Congress to treat the inhabitants of its unincorporated territories as imperfect members of the American political community. On the other hand, however, the Court’s rulings also opened the door to establishment of an “informal” empire, by legitimating the withdrawal of US sovereignty over territory acquired but not yet incorporated or admitted as states.
THE INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE presents a wealth of information about the political context of the Insular Cases, including significant biographical details of the principal political figures and all the justices to serve on the Supreme Court in the years from DOWNES to BALZAC. Noteworthy in particular, is Sparrow’s coverage of the responses in the press to the Insular Cases, which provides a useful window into the reception those cases received beyond official Washington. Sparrow’s prose is lucid and jargon free, but the legal story he narrates is complex, and, with such a large set of cases to keep in mind, occasionally difficult to follow. The appended chronology of key events and cases provides some help, but more useful still would have been an appendix presenting in some readily accessible format summary accounts of all thirty-five Insular Cases. [*180]
Whether or not it succeeds in returning DOWNES or any of the other Insular Cases to the “canon” of cases widely covered in constitutional law courses, Sparrow’s INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE will be an invaluable reference to anyone seeking to understand the historical and political context of these unjustly neglected cases.
BALZAC v. PORTO RICO, 258 U.S. 298 (1922).
DOWNES v. BIDWELL 182, U.S. 244 (1901).
DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857).
© Copyright 2007 by the author, Joseph R. Reisert.
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The Insular Cases and the Emergence of American Empire