Abstract:
It is now commonly observed that the meaning of “federalism” is not fixed but shifts over time to serve various ends and to encompass different conceptions of the proper relationship between the states and the national government. The same is increasingly true of a less familiar corner of constitutional law: the doctrine governing the reach of the Constitution in the territorial possessions of the United States. For more than a century, the series of Supreme Court decisions known as the Insular Cases has provided a framework under which some but not all constitutional rights extend to territorial residents. The doctrine has a checkered past. Critics both historical and modern have attacked it as an instrument of “Imperial Constitutionalism,” colonial domination, and racist subordination of the U.S. territories. Some judge the doctrine to be “meaningless” today and regard the cases “as dead letters, as constitutional aberrations.” But the Supreme Court has continued to invoke the Insular Cases framework in twenty-first century disputes involving the struggle against international terrorism among other cutting-edge issues. Other scholars, and increasingly federal judges, have lately recognized the opportunity to repurpose the framework in order to protect indigenous culture from the imposition of federal scrutiny and oversight. The Insular Cases, like Our Federalism, contain multitudes. The recent decision of the United States Court of Appeals for the District of Columbia Circuit in Tuaua v. United States,6 rejecting a plea for the extension of constitutional birthright citizenship to American Samoa, illustrates an important shift in the federal courts’ use of the doctrine. While the Insular Cases were originally conceived as instruments of American expansion in the era of Manifest Destiny, they have today been reclaimed to serve as bulwarks for cultural preservation. Recent case law including Tuaua points up a conflict between the extension of individual constitutional rights and the protection of territorial culture. But that observation raises still more questions about the normative desirability of a pluralist Constitution and the appropriateness of the Insular Cases as a vehicle for that project
