ACLU “friend of court” brief in federal court confuses debate over Insular Cases

The Committee on Natural Resources in the U.S. House of Representatives has jurisdiction over America’s remaining overseas island territories, including Puerto Rico, Guam, Mariana Islands, U.S. Virgin Islands and American Samoa. Committee Chairman Rep. Raul Grijalva has sponsored a resolution condemning century old federal court rulings known as the “Insular Cases,” which are still relied on by Congress and the courts to define the political status and civil rights of territorial residents.

The Chairman is correct that U.S. territorial law and history would have been better if the U.S. Supreme Court had adopted the dissent by Chief Justice Harlan in the original Insular Cases precedent. Harlan’s view was vindicated by the failure of Congress to end its practice of presiding over failed democratic self-determination in the territories since 1901.

That was made worse by the overt disenfranchisement of U.S. citizens since Congress began conferring “citizenship” on nationals in the territories in 1917. That truly colonial policy was upheld by the U.S. Supreme Court in the 1922 case of Balzac v. Puerto Rico.

But would judicial or legislative repudiation of court more recent rulings defining the status of territories lead to equal rights of U.S. national citizenship currently enjoyed only by Americans in the states of the union? Can territories have the same rights and powers as states?

Would the end of the Insular Cases be the end of inequality?

Calls for “equity” in federal entitlements for U.S. citizens in the territories must not be confused with “equality” that includes the same voting rights and citizens in the states of the union. That’s because the U.S. Constitution limits the right to vote in federal elections for representation in Congress and the Electoral College to citizens of the states. This binds the nation together by distributing political power throughout all of the states.

Even though territorial status law under the “Insular Cases” is imperfect, simply abandoning the legal and political order that exists in the territories could impede or even deny democratic self-determination to end current imperfect status of the territories. Instead of focusing on the controversial legacy of the Insular Cases, Congress should enable and empower informed choices between the permanent political status options of statehood or nationhood.

If the admittedly controversial “unincorporated territory status” defined in the Insular Cases is overturned, what will replace it? Will each of the five current organized and populated territories be offered “incorporated territory” status? If so, does that retain its historical meaning as as step toward future statehood, or integration of small territories into an existing state?

Congress should not be persuaded to uncritically mimic the legal and historical narrative of ACLU lawyers who recently submitted “friend of court” briefs asking the U.S. Supreme Court to overrule the Insular Cases due to prejudicial racial attitudes expressed in the court’s original 1901 opinions. Were those racist attitudes of court members in 1901 still present or influential in multiple U.S. Supreme Court rulings in the modern era upholding the non-racial constitutional law of territories that is the surviving legacy of the Insular Cases?

These are only some of the issues and questions that will be addressed if the Grijalva resolution is the subject of focused attention by the committee its lead sponsor chairs.

Howard Hills served as lead counsel on territorial status in the Executive Office of the President, National Security Counsel and U.S. Department of State. He is author of “Citizens Without A State” with a foreword by former U.S. Attorney General Richard Thornburgh