Written By Retley Gene Locke, Jr., Yale Law School 20'

Introduction

In 2017, Puerto Rico held another plebiscite (referendum) to address the question of future status. Citizens were given four options: becoming a state of the U.S. (statehood), independence, free association, or preserving the status quo. The results were complex. Though ninety-seven percent of the ballots were for statehood, only twenty-three percent of voters turned out to the polls.[i] The plebiscite was a source of great interest for scholars of the island’s politics. But to those interested in the history of its relationship with the United States and constitutional law scholars, more interesting was how the story was reported in the United States. “Puerto Rico has been a United States territory since 1898, when the island was acquired from Spain after the Spanish American War,” according to the New York Times.[ii] “Puerto Rico is a non-incorporated territory of the United States, with autonomy but not sovereignty,” offered The Washington Post.[iii]Conspicuously absent from any of these accounts, however, was what it means to be Puerto Rico vis-à-vis the United States. Excepting one litanous report of what Puerto Rican citizens can and cannot do,[iv] popular media couldn’t explain Puerto Rican status clearly.

The Insular Cases, a series of Supreme Court decisions rendered in between 1901 and 1922,[v] putatively decided that question. Justice White delivered the iconic statement of Puerto Rico’s status in Downes v. Bidwell: “[W]hile 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.”[vi] In other words, Puerto Rico’s position was somewhere between that of a foreign nation and a U.S. state. With respect to various indicia of membership in the republic — constitutional rights, taxes and tariffs, representation — subsequent case law proved only more tortuous. Puerto Rico’s status was then, as now, in a state of absolute and perpetual liminality.

Historiographically, the Insular Cases illustrate a seismic shift in the modes of legal-historical scholarship. Where early histories are characterized by a willingness to engage only with claims of singular, objective truth, later twentieth-scholars begin also to wade into possibilities and contingencies embedded within the familiar narrative. Over time, historians have moved away from attempting to synthesize the (somewhat inscrutable) doctrinal accretions toward a broader discourse that foregrounds the context and consequences of enshrining American imperial ambitions in constitutional space.

Preliminary Historical Accounts of the Insular Cases

The logical place to begin a historiographical inquiry into the treatment of the Insular Cases is Frederic Coudert’s Columbia Law Review article “The Evolution of the Doctrine of Territorial Incorporation.”[vii] Scholars devoted substantial attention to the cases as they were decided,[viii] but this 1926 article is arguably one of the first “historical” analyses insofar as it possesses sufficient temporal distance to trace the doctrine’s emergence over two decades. Coudert encapsulates his perspective on the cases in his opening remarks: [The doctrine of territorial incorporation’s] evolution shows how legal theories, arising in the heat of controversy, finally develop from contested doctrine into settled postulates of constitutional law.”[ix]

This account of the rise of the incorporation doctrine is almost Darwinist in nature: Coudert suggests that theInsular Cases emerged through a process of judicial invention, proposal, refinement, and selection. He characterizes Justice White’s theory of unincorporated territory — the ultimate victor in this contest —as “advantageous” in “reconciling American reverence for the Constitution . . . with large decisions left to Congress regarding the amount of liberty to be given to the new peoples.”[x] He praises the fruits of this reconciliation as “elastic”, adjusting civil liberties for peoples yet ill-adapted to the workings of a modern democracy.[xi]

Of primary interest is Coudert’s representation of the doctrine as a coherent, if novel, product of common law evolution. In argument summaries and concluding remarks, he suggests the doctrine is crystallized.[xii] Less than a decade had elapsed since the Jones Act was passed;[xiii] only four years had passed since Balzac v. Puerto Rico was decided.[xiv] Yet he takes that latter case as a metonym for the ultimate and irreversible eclipse of Justice Brown’s “extension theory” by Justice White’s “incorporation theory.”

On a first read, his neat synthesis sits in tension with suggestions throughout the paper that the Insular Cases were decided by the Justices’ personal philosophies or the politics of the day.[xv] But normative claims suggesting any impropriety are sparse; and where there are normative claims in this analysis, they accord a wide berth to what was “in the final analysis the resultant of considerations of the major political interests of the nation.”[xvi] Perhaps influenced by the flourishing legal realist movement around him, Coudert concludes that this is “the method by which our legal doctrines or dogmas grow.”[xvii]

Coudert relies mostly on primary legal sources. He devotes the bulk of his paper to lengthy quotes directly from the opinions of his selected Insular Cases.[xviii] He intersperses quotations from unverified conversations he had with various members of the Court. For example in discussing Justice Harlan’s dissent in Hawaii v. Mankichi,[xix] Coudert relays a conversation in which Harlan “expressed his firm conviction that the decisions were fundamentally wrong . . . and stated that he intended to dissent from every similar decision.”[xx] Given Coudert’s status as one of the parties that argued one of the Insular Cases,[xxi] there is good reason to question the veracity of these statements. But credibility aside, his reliance on these as sources indicates his positionality as a writer. He is an amicus of the most literal sort, which adds plausibility to an interpretation of his work as largely uncritical.

Of the earliest accounts of the Insular Cases, Coudert’s is the most extensive treatment available. Charles Warren, in his Pullitzer Prize Winning 1922 text, The Supreme Court in United States History, offered a substantially more compact analysis which proceeded along similar lines, though with an even more singular doctrinal focus. He famously called the Insular Cases “a judicial drama of truly Olympian proportions,” suggesting that the question “entered immediately into the political arena,” and then subsequently the judicial.[xxii] Writing his revised history in 1922, Warren could not have anticipated the decision in Balzac. Interestingly, however, he claims that the doctrine of incorporation was crystallized earlier, in Porto Rico v. Tapia,[xxiii] suggesting the territorial incorporation doctrine was quite unsettled during this early period.

Warren was a Harvard trained lawyer, especially influential after his citation in the Supreme Court’s opinion in Erie Railroad Co. v. Tompkins.[xxiv] But he was also one of the founders of the Immigration Restriction League, an organization dedicated to limiting immigration from western and eastern Europe on the basis of eugenics.[xxv] Warren’s interpretation — indeed support of the Court’s opinions — then, must be read with due appreciation for what were likely xenophobic proclivities.

Taken together, these early historical treatments of the Insular Cases endorsed the view of the Court. These were doctrinal histories, tracing the rise of the territorial incorporation theory through the case law. And in those treatments, they validated the opinions as necessarily flexible so as “not to impose upon the new peoples . . . institutions for which their history had not adapted them.”[xxvi] They do not look beyond the judicial materials themselves. And most importantly, they treat this judicially-invented doctrine as part of a legitimate, common law process and lawmaking function. If interstitially, these early accounts express approval of the Court’s politically contingent decisionmaking. They celebrate what Satirist Finely Peter Dunne’s popular character, Mr. Dooley, had to say of the cases: “no matter whether th’ constitution follows th’ flag or not, th’ supreme court follows th’ iliction returns.”[xxvii]

A Nadir in the Historiography

The interest in the Insular Cases — at least to legal academics and historians — apparently waned following the initial flurry of activity in the 1920s. That’s not to say that the doctrine of territorial incorporation did not bear on judicial decisions during this time.[xxviii] Nor is it a suggestion that academics did not use the doctrine as an inroad to discussion of emergent issues in extraterritorial governance.[xxix] Nevertheless, until the 1950s and 60s, Puerto Rico and the Insular Cases did not arouse much historical interest. Several factors probably contributed to this ebb: (1) the reduced density of cases concerning Puerto Rico on the Supreme Court docket following Balzac; (2) the apparently settled nature of the doctrine; (3) a reluctance to reopen a controversial and intensely political issue during a time when national unity seemed to take precedence.[xxx]

An Interest in Puerto Rico qua Colony

By the late 1970s, the Insular Cases were receiving academic attention once again, first from legal scholars.[xxxi]The former “insular possessions” — the Philippines, Puerto Rico, Hawai’i, Alaska — were being incorporated into discourses on American federalism, territorial political development, and even judicial activism. Legal academics were claiming, for example, that the territories were a living contradiction of principles of federalism and limited government.[xxxii] This was set to the backdrop of renewed judicial reliance on the cases themselves. In 1978, the Court decided Califano v. Torres,[xxxiii] upholding a provision denying SSI benefits to persons relocating to Puerto Rico, and in 1979, Harris v. Rosario,[xxxiv] holding welfare laws treating Puerto Rican citizens differently from those on the mainland did not violate equal protection principles.

Perhaps driven by the legal scholarship of the 1970s, and clearly reflecting a stronger anti-colonial consciousness, the 1980s marked an upswing in intensive historical scholarship about the Insular Cases. One of the earliest and most comprehensive accounts was generated by James Edward Kerr in a rather short monograph seeking to articulate the nexus between the judiciary and the American expansionist project.[xxxv] This appears to be the culmination of dissertation work in the field of history, though the publisher placed the title in its series entitled “multi-disciplinary studies in the law.” Kerr was an “instructor of social studies and department chairman at the Triad Community Unit District school in St. Jacob, Illinois” but it does not appear that he received any legal training.[xxxvi]

Kerr’s work reaches substantially further than the earliest histories. We see, for one, a strong emphasis on eighteenth century territorial precedents: an attempt to situate the Insular Cases of the twentieth century in a lineage of decisions which conceptualized territories as beholden to the discretion of the Congress.[xxxvii] Kerr’s text is also among the first on the topic to devote a substantial amount of his work to both the justices serving on the Fuller Court and the personalities that would argue these cases — among them the Attorney General and Solicitor General as well as plaintiffs’ attorneys like the Coudert Brothers.[xxxviii] And in covering the cases themselves, this text reflects an increased attention to the potentialities inherent in each case: for each controversy discussed, the author rehearses not only the Court’s tortuous reasoning, but also the intricate arguments contained in each party’s briefs.[xxxix]

In its analysis of the doctrine, this broader swath of source material —biographies of the Justices and lawyers and specific passages from briefs — lends itself to a substantially more synthetic and compelling exposition of the emergent doctrine. For example, in his analysis of Brown’s extension theory (as articulated in Downes), Kerr cites not only the precedential reasoning within Brown’s opinion, but also attempts to forge connections between that reasoning and the Justice’s personality: “Brown was not divorced from the messianic fervor espoused in the age of expansion.”[xl]Interestingly, with respect to the portfolio of external pressures and partisanship, Kerr suggests a more moderate role on the Court’s decisions. Of Fuller, Kerr suggests that he “was a strong Democrat . . . . This is not to imply that his opinions . . . were blatantly partisan but rather to suggest that he, like all the members of the Court of the time, was not immune from pressures, be they public, media, or personal.[xli]

Probably the most significant contribution of this text lies in its connection of competing theories of territorial constitutionalism with a colloquy that took place in a series of law review articles. Kerr opens his chapter on “the influence of scholarly literature” by suggesting that “constitutional law . . . is, at times, most susceptible to changes in that odd phenomenon known as public opinion.”[xlii] He then presents the key writings of popular scholars at the time, including Charles A. Gardiner,[xliii] James Bradley Thayer,[xliv] Henry Pratt Judson,[xlv] Christopher Langdell,[xlvi]and Abbott Lawrence Lowell.[xlvii] The novelty of Kerr’s writing, however, lies in his suggestion of a dialogue between the Court and this simultaneous scholarly debate.[xlviii] Both while recounting the debate at the time,[xlix] and in presenting the actual opinions of the Court,[l] he suggests a prominent role for legal academics in the ultimate disposition. Perhaps Kerr’s distance from, in contrast to Coudert’s or Warren’s vast connections to, the institutional Supreme Court made it easier to characterize doctrinal inventions as derivative.

On the one hand, this later history of the Insular Cases might be framed as a more robust and synthetic expansion of Fred Coudert’s original assertion that these cases were political: “The decisions of the branches of government under [the Constitution] are subject to constant pressure from those ubiquitous tests of history, natural reason and social conditions.”[li] And this, Kerr’s perspective on the “constitution of empire,” is inflected with a keen interest in contingency: “That such important issues should be decided by such uncertain consensus is itself an important event.”[lii]But there is also a more prospective aspect of this account, focusing on Puerto Rico and the Twentieth Century reality of global decolonization: “[Continuing under commonwealth status] will become an increasingly difficult one for the United States, for it presents an uncomfortable international posture . . . when so many new nations have emerged from the colonial structures of other world powers.”[liii]

Kerr’s is a newer, vastly more critical glimpse into the incorporation doctrine. It foregrounds not only the tenuous balance of the decision, but also the precarity of colonialism in the latter twenty years of the twentieth century. Given that it was published in 1982, one might wonder about the influence of then contemporaneous events. In April 1982, Argentina invaded the Falkland Islands, claiming the British illegally colonized them in 1833. This was a year after Britain renamed “Crown Colonies,” calling them instead “British Dependent Colonies.” It seems entirely possible that this global unrest inspired Kerr’s increased attention to alternatives; different world orders that might have followed the Spanish-American War.

Three years after Kerr published his text, and definitely aware of these events, Judge Juan Torruella released a book, the culmination of his LL.M. studies at the University of Virginia.[liv] He completed those studies in 1984, the same year he took his seat on the First Circuit Court of Appeals and the same year that he received an MPA from the University of Puerto Rico. Prior to that, Torruella was a District Court Judge in the District of Puerto Rico (1974-1984).

Though academic in its nature, the Torruella monograph is undoubtedly critical: As the subtitle of the text reveals, his interests are primarily in identifying and critically analyzing jurisprudential sources of Puerto Rico’s status vis-à-vis the mainland. And according to him, this is not a history of constitutionalizing empire; it is a history of legally sanctioned inequality. He remarks candidly, “[t]he intended public of this book is the “first class” citizens of the United States. It is this audience that lacks accurate information regarding Puerto Rico, and which quite candidly, I am attempting to influence.”[lv] As a native Puerto Rican, with interests in public policy, his own identity and research interest are thus at stake in the argument.

Like most historians of the Insular Cases, Torruella commences his study with an extensive overview of the doctrinal evolution. But before reviewing the “chestnuts” of territorial incorporation, Torruella provides a relatively thorough-going coverage of the Spanish-American War. In particular, he sketches out something relatively underexplored in previous doctrinal histories: a relationship between traditional exceptionalist philosophies (e.g., Mahan’s theories of naval supremacy; Manifest Destiny; the Turner thesis) and popular thought prior to annexation.[lvi] This background is essential to his argument: It situates the Spanish American war in a rhetoric of supremacy that has justified other forms of subjugation or inequality under color of law. It facilitates comparison between the plight of Puerto Rico and other historically marginalized populations which have subsequently fared better. With this background established, Torruella then embarks upon the familiar moves in a history of the Insular Cases: recounting the treaty, the election of 1900, and the academic and popular debate swirling at the time.

Torruella’s treatment of the doctrine can be described only as a negative one. At times he criticizes the grounds of decision: “[T]he judicial subterfuge of “political question” came to the rescue once more . . . .”[lvii] Other times he marvels at apparent inconsistencies: “[A]mazingly, in one day, the Court held Puerto Rico to be in and / or out of the United States in three different ways!”[lviii] But he himself is consistent in his characterization of the decisions as detrimental to Puerto Rican interests; they inscribe double standards that allow the United States to keep Puerto Rico in a state of multi-dimensional subjugation.[lix]

That — the emphasis on subjugation and inequality — is what distinguishes Torruella’s intervention from previous studies. Leveraging a multitude of sources, both historical (e.g., primary and secondary historical materials from Puerto Rico) and contemporary (statistics collected by UPR researchers), the Judge concludes that “it cannot be seriously questioned but that these cases . . . have had a profound and lasting influence on most aspects of Puerto Rico’s political, economic, social and cultural life.”[lx] In the political and legal sphere, the Judge perceives the effects in the rise of separatist movements, the evolution of the “Commonwealth” status, and representation before the United Nations. Though Judge Torruella sees successes in terms of education and physical health, he suggests that Puerto Rico still lags behind the mainland. And, according to his account, most obviously, economic relations between Puerto Rico and the mainland have brought about only “relative” benefits for Puerto Rico.[lxi]

Torruella tows the line that all the other accounts have laid down — this doctrine was a judicial invention created in response to both external forces (i.e., political pressures, public xenophobia) and the Court’s self-conscious interest in preserving legitimacy. But his normative claim diverges along two axes. First, contra Coudert or Warren, Torruella frames the Court’s decision not as appropriate, but disingenuous: “they can perhaps be excused for having been influenced by the ethics and euphoria of that period.”[lxii] Second, where Kerr hints that the unincorporated territorial status may not be sustainable in the long term, the Judge calls for outright abolition of the doctrine. “As with Plessy v. Ferguson, it is the Supreme Court which should correct this grave injustice.”[lxiii] The rhetorical salience of that point can’t be overstated. Torruella seeks to situate these decisions among the ranks of the anticanon — that which we love to teach law students and the public to hate.[lxiv] And his concretizing of the current plight of Puerto Rico with modern statistics increases the reader’s receptivity to these bolder normative claims.

It’s important to appreciate the time in which Torruella is writing this piece: the 1980s. This was not only a period of increased litigation of Puerto Rican citizenship rights in the Court, but also the time of the “Reagan revolution” and the growth of a conservative judicial movement — when judicial activism and doctrinal invention were subjected to intense disapprobation. This was also a seminal time for critical legal scholarship. At the time Torruella was writing, Unger’s seminal article on CLS was just beginning to make waves,[lxv] and CRT articles were continuing to reverberate.[lxvi]Both of these developments are of moment in that they encouraged criticisms — albeit along normative lines — of the Court. Though Torruella defies the popular image of a “crit,”[lxvii] he nevertheless adopts the norms of the era in his interrogation of the cases.

A Century of Imperialism Spurs New Scholarship

1998 was an important year for scholars of American Empire. It marked the centenary of the Treaty of Paris, the document that ended the Spanish-American war.[lxviii] It also marked another Puerto Rican plebiscite to consider its long-term status vis-à-vis the mainland. The citizens were to decide between statehood, commonwealth, free association, independence, and none of the above.[lxix] The outcome was fittingly liminal: a slim majority of voters (50.3%) chose “none of the above”[lxx] in an election with seventy-one percent turnout.[lxxi] The confluence of these events spurred a renewed interest among legal scholars and legal historians. This interest materialized in, among other things, a three day conference entitled “Foreign in a Domestic Sense: Reflections on the Centenary of the United States’ Acquisition of Puerto Rico” which took place at Yale Law School, March 27–29, 1998.[lxxii]

The eponymous volume which emerged from that conference marked the beginning of a new scholarly interest in the Insular Cases and their relationship to Puerto Rico. The editors state their purpose: “The principal aim of this book is to examine the history, content, and implications of the idea that certain statuses within the United States’ constitutional framework are appropriate only for certain groups of people in certain geographical locations.”[lxxiii] The repeated invocation of ‘certain’ throughout that statement keys readers to a central theme of the volume, and one which Torruella began to explore in his book: The Insular Cases and their doctrine as an ‘othering’ device. This marks a point of transition in the study of the cases — a decentering of the crystallized doctrinal contours and a refocusing on the uncertainty at the level of citizens. Where Torruella’s account focuses on the known, systems-level outcomes which he understands to be outgrowths of the colonial relation, this turn-of-the-century scholarship is also interested in potentialities and unknowns.

The contributing authors — comprising law professors, primarily working in the field of constitutional law (though with different political leanings) — to the volume explore and interrogate the cases along different axes. For example, Judge Cabranes argues that historically, Puerto Rican status “was understood to raise basic questions of national identity — the national identity of Puerto Ricans . . . but also the national identity of the United States,” thereby suggesting a mutually constitutive relationship that inheres in the history of the Insular Cases.[lxxiv] Mark Weiner, meanwhile, examines the Insular Cases as part of a generative tradition of what he terms “ethno-juridical discourse,” arguing that colonialism was made possible not just by a belief in the general superiority of Anglo-Saxons, but by a more nuanced belief in the superiority of Anglo-Saxons at ruling other peoples.[lxxv] In two papers, Richard Thornburgh and Rogers Smith attempt to address the existence of a distinct “Puerto Rican” citizenship independent of U.S. identity. Where Thornburgh concerns himself with the implications that a distinct Puerto Rican citizenship would have on the nation as a whole, Smith argues that recognizing such citizenship on the basis of existent doctrine, which used terms like “Puerto Rican Citizenship” to designate second-class status, is undesirable.[lxxvi]

What is distinctive about this legal historical account is the broader role ascribed to the cases in the broad arc of constitutional history. They are not just relevant for Puerto Rican status issues. Nor are they exclusively valuable as expressions of momentary American expansionist fervor.[lxxvii] Rather, to these historians, the Insular Cases speak to broader, ongoing issues of citizenship, identity, and paternalism. These issues are “alive and well,” and the Insular Casesare instructive in identifying familiar modes of argument (e.g., Weiner) and understanding the stakes of potential alternatives to the current colonial order (e.g., Thornburgh and Smith). If abstracted at times, this claim is a persistent through-line across the volume’s contents.

The same year that the Burnett and Marshall volume was published, Efrén Rivera Ramos released a book under the American Psychological Association imprint.[lxxviii] A highly influential scholar of the colonial relationship between the United States and Puerto Rico, Ramos holds a JD from the University of Puerto Rico, an LL.M. from Harvard, and a PhD from the University of London. He teaches constitutional law, legal theory, and law and culture at the University of Puerto Rico law school.[lxxix] In this, his first book-length treatment of United States colonialism in Puerto Rico, Ramos stresses the construction of Puerto Rican identity in the colonial order. Thus, like the authors contributing to the Foreign in a Domestic Sense colloquy, Ramos views the Insular Cases as bearing not just on legal inequalities, but on the internal lives of islanders.

Ramos’s methodology for analyzing the doctrine is essentially discourse analysis: He suggests that “legal discourse elaborated in the justices’ lengthy discussions in the Insular Cases was permeated by wider conceptions and values . . .” in American culture at the turn of the century.[lxxx] In his close reading of the decisions, Ramos identifies resonances between these conceptions and values and the Court’s holdings. These include a sense of superiority over subordinated peoples[lxxxi] and a view of territories and their people as property.[lxxxii] In each case, Ramos argues that these animating precepts were contested, and in so doing, invokes contingency, For example, on the idea of Puerto Rico as property, he writes “This was not a necessary result . . . the inevitable product . . . The contingency of the event is suggested . . . by the fact that some members of the Court were willing to rely on other categories . . . .”[lxxxiii]

Ramos, also a native Puerto Rican, sees much at stake in his analysis. Narrowly, the cases are constitutive of the relationship between the constitutional “democracy” and its colony: they codify subjugation as an element of the Constitution.[lxxxiv] More broadly, they “the performative power of law: its capacity to create the realities that it names.”[lxxxv] To Ramos, the Puerto Rican experience, though singular in unfairness, shows law’s role in defining arguments available to individuals who seek to contest colonial subjugation.

His novel contribution to the field lies in his Gramscian critique: The legal relationship between the United States and the island, he claims, has created a hegemonic order. At the highest level of generalization, he suggests that the “discourse of rights, the system of partial representative democracy, and the ideology of the rule of law”[lxxxvi] from the Insular Cases define the debate over the island’s status. Distinctly American legal ideologies make certain forms of independence illegible, and thus illegitimate, pruning the possible alternatives to the present arrangement with the mainland.[lxxxvii] But Ramos sees hegemony at the individual level too. U.S. Citizenship “conjures powerful images of belonging and expectations of certain treatment,”[lxxxviii] and in the Puerto Rican context “citizenship has become an important value in both its material and symbolic senses.”[lxxxix] Puerto Ricans are leery of surrendering citizenship and view their status vis-à-vis the mainland as a sort of concurrent burden that runs with citizenship benefits. That view is distorted, Ramos says, because Puerto Ricans aren’t politically represented on the mainland.

Ramos’s argument sounds in the same postcolonial registers as other scholars writing during this centenary period. Rather than framing the Insular Cases as indicia of temporally bounded xenophobia, these later studies view the doctrine as persistently generative, defining the concrete lived reality of Puerto Rican citizens. By this account, the Insular Casescontinue to constrain possibilities for change by limiting the emancipatory imagination.

Rather than marking another discrete period of interest in the Supreme Court’s treatment of Puerto Rico, these late 1990s ventures spurred what might be fairly characterized as a “small, but mighty” contingent of contemporary scholars interested in these cases and their historical ramifications. More recent treatments of the cases cluster in three primary, though overlapping, interest areas: American political development, extraterritoriality, and citizenship.

In that first camp, and probably one of the more widely read monographs on the cases, is that of Bartholomew Sparrow, a political scientist from the University of Texas. His 2006 book, published as part of the “Landmark Law Cases and American Society” series, provides a well-structured history of the Insular Cases.[xc] Sparrow wrote the book at the insistence of law professor (and contributor to the Burnett & Marshall volume), Sandy Levinson.[xci] In many ways his book expands on the primary thematic material of Levinson’s earlier essay.[xcii]

Sparrow’s methodology can only be described as aggregative. He seeks to show how the rise of the U.S. as a global power, racism and ethnocentrism, the growing administrative state, and the emergence and development of big business intersected in the Insular Cases controversy.[xciii] In his bibliographical essay, the author admits of a reliance on many of the secondary sources reviewed here, including the Kerr text, the Burke and Marshall volume, and Rivera Ramos’s book.[xciv] But, originally and compellingly, his study places a heavy emphasis on newspapers and other media reactions that illuminate “the formation and impact of public opinion, the making and implementation of public and foreign policy, and the conduct of public relations and operation of the media.”[xcv] For example, in his treatment of the Downes decision, he gauges different public reactions by quoting from papers like the Washington Post, the New York Daily Tribune, and the competing New York Herald, noting the papers’ political orientations.[xcvi]

Though he relies on familiar archival materials, there is a theory-governed approach at work in this text. Sparrow is marshalling evidence in support of a thesis that the Insular Cases confirm a theory of “constitutional construction . . . the phenomenon whereby new politics cause new understandings of the political world and of the meaning of the Constitution.”[xcvii] This a priori hypothesis naturally engenders questions about his faithfulness to the archival sources (i.e., the “cherry picking” problem). Nevertheless, while guided by a hypothesis, this political science account of these cases claims a broader import for the Insular Cases that suggests an openness to the source material. In addition to illuminating a process of collective definition of the Constitution’s parameters, Sparrow sees these cases as meaningful precedents for three reasons: they are good law (and still govern territorial issues), they undermine notions of limited government (territorial government is not subject to checks and balances), and they mark an invention of both formal (through explicit domination) and informal (through interstitial labeling and informal control, as in the Puerto Rican “commonwealth”) empire.[xcviii]

In contrast to Sparrow and others in the American political development camp, scholars writing in extraterritoriality arena have employed methods more familiar to historians working at the nexus of law and society, focusing on emergent themes rather than seeking to prove an a priori hypothesis. After 9/11, during the “War on Terror,” extraterritoriality became a topic of unprecedented interest amidst debate over the status of detainees in Guantánamo Bay, Cuba. The Insular Cases were heavily implicated, given that Spain ceded Cuba to the United States alongside Puerto Rico, as a condition of the Treaty of Paris.[xcix]

In a 2005 law review article which typifies work in this area, constitutional history professor Christina Duffy Burnett problematizes the relationship of the Insular Cases to extraterritoriality.[c] Her inquiry focuses on the heuristic — “Does the Constitution follow the flag?” — that over a century of scholars have used to capture the Insular Cases’ doctrinal contribution. She asserts that the cases were not as squarely addressed to that question as earlier history might suggest; rather, the clearer thrust of the doctrinal innovation was the creation of an option for deannexation — relinquishing potentially “deadweight” territory that didn’t serve the interests of the United States.[ci] Her account is predicated upon a close reading of the opinions in Downes and DeLima coupled with the scholarly debate at the time about whether it would be possible to relinquish territory that the United States took as a colony.[cii] Given her reliance on these sources, Burnett describes the article “more as a doctrinal analysis than as a properly historical argument,” but nevertheless sees it bearing on broader historical problems (e.g., secession).[ciii] In subsequent work, she has linked this revisionist scholarship to the Court’s extraterritoriality jurisprudence and the “war on terror.”[civ] Like Burnett, other scholars working in the area of extraterritoriality, including Amy Kaplan[cv] and Andrew Kent,[cvi] have compellingly contributed to a general sense that the Insular Cases have far less to say about the territories per se than they do about the relationship of the United States vis-à-vis the territories.

Sharing a similarly historically-grounded orientation to the Insular Cases, we move to the scholarship on citizenship. This strand represents the most recent contributions to the field, no doubt owing to the burgeoning discipline of citizenship studies. Looming largest in this field is Sam Erman, currently a professor of law at USC. Much like Burnett, Erman is a JD/PhD with a strong revisionist orientation. He has shown a particular interest in one case, Gonzales v. Williams,[cvii] holding a Puerto Rican woman was not “foreign” for purposes of immigration laws, while judiciously avoiding the question of whether she was a U.S. citizen.

Erman’s first article on the topic is a ‘deep dive’ into the Gonzales case — an examination of the transcripts of arguments, the parties’ briefs, and personal materials of the litigant.[cviii] His central claim is that the Insular Casesconnected “problems of colonial administration to issues of immigration and to U.S. doctrines acquiescing in treatment of U.S. citizens — chiefly women and people of color — as dependent and unequal.”[cix] In making this claim, Erman situates Gonzales, and the entire Puerto Rican status question of the early twentieth century, in a broader discourse about citizenship, fitness, and othering that began with Chief Justice Taney’s decision in Dred Scott. His work thus intervenes to intertwine the histories of racialized and gendered immigration policies with U.S. policy towards colonial possessions.[cx]

In a later article, Erman uses the same Gonzales case to suggest that the Insular Cases functioned as a critical nexus for constitutional change.[cxi] Again basing his work on an extensive review of archival materials, Erman concludes that the constitutionality of empire, and with it, the constitutionality of subjugation and liminal possessions, was the product of a mutually reinforcing exchange between the judiciary, elected officials, and immigration and customs administrators.[cxii] As before, he revises the Insular Cases’ otherwise comfortable position as establishing a doctrine of incorporation. Where the decisions were impactful in locating immigration policy in a gender–race matrix, they were equivocal and tentative in their treatment of the actual questions of constitutional colonialism.

In each strand of modern Insular Cases historiography — American political development, extraterritoriality, and citizenship/immigration — we see a strong revisionist trend: the suggestion that the Insular Cases are neither confined in their reach, nor certain in their meaning. Building on the work of the scholars writing on the eve of the centenary of the Treaty of Paris, recent scholars continue to interrogate the meaning of these cases in American history and Puerto Rican history, broadening the scope of inquiry to identify unexpected consequences.

Conclusion

The tremendous irony of a country whose foundational principle was an escape from colonial tyranny possessing what are unequivocally colonies for over a century cannot be overstated. And when the idea of colonial possessions was fresh — being tested in the Supreme Court for the very first time — that irony must have been all the more salient. In all likelihood that sense of mismatch, and with it a sort of cognitive dissonance between constitutional first principles and a populace confronting the closing American frontier, led the Court to render its tepid, confounding series of decisions in the Insular Cases.

When historians first attempted to synthesize the decisions, they did so in the early twentieth century; in a pre-World War II, pre-Brown universe; at a time when systematic subjugation was not a topic of substantial scholarly interest. It was, in colloquial terms, “the rule of the day.” And so, early histories of the Insular Cases, written by insiders to the Court, saw them as moments of legitimate doctrinal innovation — moments in which the Court flexibly interpreted the Constitution through a common law process in a way that served the best interests of the nation. Territorial incorporation was a fabrication. As was extension theory. But such judicial innovation was permissible, venerable even.

As the twentieth century wore on, that perception of artificial doctrines devised to solve pressing social problems became anticanonical. A great deal of it was folded under the umbrella of the dreaded Lochner-ism or judicial activism. Regardless, legal institutions have taken an increasingly dim view of doctrines that seem to “appear” out of thin air — the penumbras and emanations of our constitution, as it were. Enter here the recent accounts of the Insular Cases. Beginning in the 1970s, when the Court relied on the Insular Cases to make decisions that treated citizens of Puerto Rico differently from those residing on the mainland, historians looked backward to understand them. Since that retrospective has begun, increasing numbers of scholars have come to see the Insular Cases as sweeping. Their place is not just Puerto Rico, and their time is not just 1898-1903. They have come to encompass a broad mass of cases that inform issues of great contemporary import — issues of citizenship and identity, the law of war and extraterritoriality, the development of the American state and American constitutionalism.

The history of the Insular Cases as it pertains to doctrine in the United States is developing, and in the hands of scholars of citizenship, extraterritoriality, federal courts, and political science, we can well anticipate additional revisionist accounts that remind us of the far-reaching stakes of these decisions and challenge the aftershocks that we still feel in contemporary doctrine. That said, there is work to be done. Much work is needed to examine the impacts of territorial incorporation doctrine — including the limited reach of constitutional criminal procedure protections — on the island. In all likelihood the impacts have been profound, both in the development of the local criminal law and on the society at large. Further research, too, should be directed towards the inconsistencies between these cases and subsequent doctrines. To adopt Torruella’s normative stance, such work is critical to repairing the historical wrong.

Puerto Rico remains in a state of limbo. And if the history of the Insular Cases — the evolving recognition of their inconsistency, contingency, and breadth — reveals anything, it is that the plebiscite results are unsurprising. The island’s status was determined by a sweeping and underdeveloped rule of decision. And as its creeping history shows, absolute and perpetual liminality is all that could be expected under such circumstances.  

Appendix

Which are the Insular Cases and their progeny?

 

 

 

 

 

 

 

Coudert (1926)

Warren (1922)

Kerr (1982)

Torruella (1985)

Rivera Ramos (2001)

Burnett & Marshall (2001)

 

1901 [The Core of the Insular Cases]

Neeley v. Henkel, 180 U.S. 109

 

fn

 

 

 

X

 

DeLima v. Bidwell, 182 U.S. 1

X

X

X

X

X

X

 

Dooley v. United States, 182 U.S. 222

(Dooley I)

 

X

X

X

X

X

 

Downes v. Bidwell, 182 U.S. 244

X

X

X

X

X

X

 

Huus v. N.Y. & P.R. Steamship Co., 182 U.S. 392

 

 

X

X

X

X

 

Dooley v. United States, 183 U.S. 151

(Dooley II)

 

X

 

X

X

X

 

The Diamond Rings, 183 U.S. 176

 

fn

X

X

X

X

 

1903

Hawaii v. Mankichi, 190 U.S. 197

X

X

X

X

X

X

 

1904

Gonzalez v. Williams, 192 U.S. 1

fn

 

X

X

X

X

 

Dorr v. United States, 195 U.S. 138

X

X

X

X

X

X

 

Kepner v. United States, 195 U.S. 100

fn

fn

X

X

X

X

 

Mendozana v. United States, 195 U.S. 258

 

 

 

X

X

 

1905

 

Rasmussen v. United States,

197 U.S. 516

X

X

 

X

X

X

 

Trono v. United States, 199 U.S. 521

fn

fn

X

X

X

X

 

1906

Grafton v. United States, 206 U.S. 340

 

 

X

X

X

X

 

1907

 

Kent v. Porto Rico, 207 U.S. 113

 

 

 

 

X

X

 

1909

 

Kopel v. Bingham, 211 U.S. 468

 

 

 

 

X

X

 

1910

 

Gavieres v. United States, 220 U.S. 338

 

 

X

 

 

X

 

1911

 

Dowdell v. United States, 221 U.S. 325

 

X

X

X

X

 

1913

Puerto Rico v. Rosaly, 227 U.S. 270 (1913)

 

 

 

 

 

X

 

Ochoa v. Hernández, 230 U.S. 139

 

 

 

 

X

X

 

1914

 

Ocampo v. United States, 234 U.S. 91

 

X

X

X

 

 

1918

 

Porto Rico v. Tapia, 245 U.S. 639

 

X

X

X

 

X

 

1922

 

Balzac v. Puerto Rico, 258 U.S. 298

X

 

X

X

X

X

 

1956

 

Kinsella v. Krueger, 351 U.S. 470

 

 

 

X

 

 

 

Reid v. Covert, 351 U.S. 487

 

 

 

X

 

 

 

1971

 

Examining Bd. v. Flores de Otero, 426 U.S. 572

 

 

 

X

 

 

 

1978

 

Califano v. Torres, 435 U.S. 1

 

 

 

X

 

 

 

1979

Torres v. Puerto Rico, 442 U.S. 465 

(Brennan, J., concurring)

 

 

 

X

 

 

 

1980

 

Harris v. Rosario, 446 U.S. 651

 

 

 

X

 

 

 

Key: X = Discussed Substantively in Main Text; ☙ = Short Treatment; fn = Discussed in a footnote, but not main text. Cases decided 1956 – 1980 are shaded gray to indicate that they are discussed extensively, but clearly as progeny of the Insular Cases.


Endnotes

[i] See Frances Robles, 23% of Puerto Ricans Vote in Referendum, 97% of Them for Statehood, N.Y. Times, June 11, 2017. The low turnout numbers are almost assuredly the result of a boycott by the Popular Democratic Party (Patrido Popular Democrático), which has long been associated with an interest Commonwealth status and self-government. See Ismael Torres, PDP to boycott status referendum, Caribbean Business, Apr. 20, 2017.

[ii] Robles, supra note 1.

[iii] Katy Collin, Puerto Rico votes on statehood on Sunday — for the fifth time. Here’s what’s at stake, Washington Post, June 10, 2017.

[iv] See id.

[v] Fitting the content of the decisions themselves, there is great confusion over how broadly the Insular Cases moniker sweeps. The most conservative perspective focuses on a series of decisions rendered in 1901. See the Appendix, infra, for a table of what cases have come to be considered Insular Cases by which scholars.

[vi] 182 U.S. 244, 341 (1901) (White, J., concurring).

[vii] See Frederic R. Coudert, The Evolution of the Doctrine of Territorial Incorporation, 26 Colum. L. Rev. 823 (1926).

[viii] See, e.g. 3 Charles Warren, The Supreme Court in United States History 430 n.1 (1922) (collecting citations to contemporaneous accounts);

[ix] Coudert, supra note 7, at 823.

[x] Id. at 850.

[xi] Id.

[xii] E.g. id. at 826 (“That the incorporation doctrine will be applied in connection with all future acquisitions of territory by the United States I have no doubt . . . .”).

[xiii] The Jones-Shafroth Act of 1917, Pub. L. No. 64-368, 39 Stat. 951, conferred United States citizenship on all citizens of Puerto Rico, thus rendering moot one of the central issues of Puerto Rican status.

[xiv] 258 U.S. 298 (1914) (holding Sixth Amendment grand and petit jury rights did not apply to Puerto Rico despite passage of Jones Act).

[xv] See, e.g., Coudert, supra note 7, at 825 (“the question . . . was one of those great questions upon which men differ in accordane with their temperament, environment and education, and roughly speaking, the Court might be said to be have been divided between modernists and fundamentalists.”); id. at 839 (“It is evident that [Justice White] was much preoccupied by the danger of racial and social questions of a very perplexing character . . . .”).

[xvi] Id. at 849.

[xvii] Id.

[xviii] See Appendix, infra, for a table listing the portfolio of cases discussed as Insular Cases by the respective authors.

[xix] 190 U.S. 197 (1903) (holding rights to indictment by grand jury and conviction by a unanimous jury were not applicable to citizens of Hawaii, even after treaty of annexation).

[xx] Coudert, supra note 7, at 842. See also id. at 837 (referencing another conversation between Coudert and Harlan); 832 (conversation between Coudert and White).

[xxi] Among others, Frederic Coudert argued the case of Gonzalez v. Williams, 192 U.S. 1 (1904) (holding Puerto Rican citizens were not “aliens” for purposes of immigration laws). His brief in that case was published in the same law review as this paper. See Frederic R. Coudert, Jr., Our New Peoples: Citizens, Subject, Nationals, or Aliens, 3 Colum. L. Rev. 13 (1903) (substantially reproducing brief filed on behalf of petitioner Isabel Gonzales).

[xxii] Warren, supra note 8, at 430.

[xxiii] 245 U.S. 639 (1918). NB: The spelling of Puerto Rico is “Porto Rico” in the official reporter. See Warren, supra note 8, at 433 (“The capsheaf of the doctrine . . . was applied in Porto Rico v. Tapia.”).

[xxiv] 304 U.S. 64, 73 n.5 (1938) (citing revised 1935 edition of The Supreme Court in United States History)

[xxv] See Neil Swidey, Trump’s anti-immigration playbook was written 100 years ago. In Boston., Boston Globe Magazine, Feb. 8, 2017. See alsoBarbara Miller Solomon, Ancestors and Immigrants: A Changing New England Tradition (1956).

[xxvi] Coudert, supra note 7, at 850.

[xxvii] Mr. Dooley (Finley Peter Dunne), The Supreme Court’s Decision, in Mr. Dooley on the Choice of Law 52 (1963).

[xxviii] Conducting a WestLaw Citator search, one finds a relatively continuous stream of citations to the central case, Downes v. Bidwell, 182 U.S. 244 (1901), from the period 1901 well through to midcentury.

[xxix] See, e.g., Charles Fairman, Some New problems of the Constitution Following the Flag, 1 Stan. L. Rev. 587 (1949) (discussing bearing of doctrine of territorial incorporation on federal jurisdiction over cases arising in military tribunals overseas); Patrick Allen Flynn, The Constitution Abroad: The Operation of the Constitution Beyond the Continental Limits of the United States, 32 Tex. L. Rev. 58 (1953) (theorizing the fundamental law limits suggested by the incorporation doctrine). Outside of the mainland academe, law journals in the territorial possessions remained deeply interested in the doctrine. See, e.g., Jose Lopez Baralt, The Origin of the Theory of Extension of the Constitution to the Territories Ex Proprio Vigore, 12 Phillippine L.J. 281 (1933).

[xxx] One might think about World War II, and by extension the Cold War, in this regard. Consider, for example, the compelling arguments which suggest that movement toward racial equality was driven in large part by this same need for unity. See, e.g., Mary L. Dudziak, Desegregation as a Cold War Imperative, 41 Stan. L. Rev. 61 (1988).

[xxxi] See, e.g., José Cabranes, Citizenship and the American Empire, 127 U. Pa. L. Rev. 391 (1978); Borg, The Problem of Puerto Rico’s Political Status, 37 Col. Abog. P.R. 481 (1976); Jaime Fuster, The Origins of the Doctrine of Territorial Incorporation and its Implications Regarding the Power of the Commonwealth of Puerto Rico to Regulate Interstate Commerce, 35 Rev. Jur. U.P.R. 259 (1974).

[xxxii] See, e.g., Arnold H. Leibowitz, Untied States Federalism: The States and the Territories, 28 Am. U. L. Rev. 449 (1979) (asserting that the federal-state relationship should be applied to governing territories);

[xxxiii] 436 U.S. 1 (1978)

[xxxiv] 446 U.S. 651 (1980).

[xxxv] See James Edward Kerr, The Insular Cases: The Role of the Judiciary in American Expansionism (1982).

[xxxvi] Id. at 2.

[xxxvii] See id. at 7-9 (discussing “territorial precedents” such as the Louisiana Purchase and the accession of Florida from Spain).

[xxxviii] See id. at 22-24.

[xxxix] An entire chapter, entitled “Presentation of the Cases,” reviews the arguments in what Kerr perceives to be the critical cases. Id. at 36-63.

[xl] Id. at 81. In a similar vein, Kerr argues that “[i]t is doubtful that [Gray]’s opinion was influenced by administration feeling on the issue, for Gray was not a highly political man.” Id. at 76.

[xli] Id. at 74 (emphasis added).

[xlii] Kerr, supra note 31, at 27.

[xliii] See Charles A. Gardiner, Our Right to Acquire and Hold Foreign Territory, 33 Am. L. Rev. 161 (1899) (suggesting territories can be held indefinitely under plenary power of Congress; that residents of possessions bear only the rights afforded them in treaty or by Congressional action)

[xliv] See James Bradley Thayer, Our New Possessions, 12 Harv. L. Rev. 471 (1898) (supporting new American colonial “career”; concluding that government and rights of the inhabitants of the new colonies were province of Congress)

[xlv] See Henry Pratt Judson, Our Federal Constitution and the Government of Tropical Territories, 19 Rev. of Rev’s 67 (1899); Henry Pratt Judson, The Constitution and the Territories, 21 Rev. of Rev’s 451 (1900). Judson contended that structural limitations on the Federal Government still applied, but that American nationality was afforded to the territorial inhabitants only “in an international sense.”

[xlvi] See Christopher C. Langdell, The Status of Our New Territories, 12 Harv. L. Rev. 365 (1899) (echoing Judson, arguing that “United States” refers only to the states and that historically, the federal government has had unlimited power to acquire, hold, and make provision for territories)

[xlvii] Abbott Lawrence Lowell, The Status of Our New Possession — A Third View, 13 Harv. L. Rev. 155 (1899) (contesting the view that Constitution does not apply beyond the states and suggesting that constitution applied to new territories when they were “incorporated”).

[xlviii] But see Warren, supra note 8, at 430 n.1 (“The tremendous interest taken in the decision by the Court as to the status of the new territories is illustrated by the enormous number of articles in the law journals, 1899-1905, citation of which is not practicable;”). Though Warren cites a handful of said articles, conspicuously absent are citations to those pieces which most directly tracked the opinion.

[xlix] E.g., Kerr, supra note 31, at 30 (“In terms of its influence on later decisions, the most significant point made by Gardiner had to do with the semantic classification of what he felt the territories were.”).

[l] E.g., id. at 85 (“It is known that White was not the first to espouse the doctrine of incorporation. . . . Abbott Lawrence Lowell’s article on the subject represented the most significant analysis of the principle up to White’s opinion.”).

[li] Id. at vii.

[lii] Id. at viii.

[liii] Id. at 121.

[liv] Juan R. Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal (1985).

[lv] Id. at 1.

[lvi] See id. at 18 (recapitulating four “salient points,” including “(4) the activities of the press, and the public opinion created thereby, were highly influential in determining the governmental policy followed by the United States . . . .”).

[lvii] Id. at 55.

[lviii] Id. at 61.

[lix] E.g., id. (“Although at first glance the Huus decision appears to favor Puerto Rico, it has not been without serious detrimental consequences to the economy of Puerto Rico.”).

[lx] Id. at 117 (emphasis added).

[lxi] See id. at 252

[lxii] Id. at 267 (emphasis added).

[lxiii] Id. at 268.

[lxiv] See generally Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011) (defining anticanon as “the set of cases whose central propositions all legitimate decisions must refute”).

[lxv] Roberto Mangabeira Unger, The Critical Legal Studies Movement, 96 Harv. L. Rev. 561 (1983).

[lxvi] See Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518; Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. Penn. L. Rev. 561 (1984); Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978).

[lxvii] See José A. Cabranes, Puerto Rico: Colonialism as Constitutional Doctrine, 100 Harv. L. Rev. 450, 450 (1986). Judge Cabranes informs us that Judge Torruella is a “yachtsman” and a Republican in his political leanings. Id.

[lxviii] Treaty of Peace (Treaty of Paris), Spain­–U.S., Dec. 10, 1898, 30 Stat. 1754.

[lxix] See Christina Duffy Burnett, Puerto Rico Chooses, Christian Science Monitor, Dec. 11, 1998, at 11.

[lxx] See R. Sam Garrett, Cong. Research Service, RL32933 Political Status of Puerto Rico: Options for Congress 15 (2011).

[lxxi] Id. at 32.

[lxxii] See Foreign in a Domestic Sense: Puerto Rico, American Expansion, & the Constitution xiv (Christina Duffy Barnett & Burke Marshall eds. 2001) [hereinafter FIDS].

[lxxiii] See Christina Duffy Burnett & Burke Marshall, Between the Foreign and the Domestic: The Doctrine of Territorial Incorporation, Invented & Reinvented, in FIDS 2, 3 (emphasis added).

[lxxiv] José A. Cabranes, Some Common Ground, in FIDS 39, 42. See also id. at 46 (suggesting appreciation of mutuality between the two jurisdictions should inform contemporary discourse).

[lxxv] Mark Weiner, Teutonic Constitutionalism: The Role of Ethno-Juridical Discourse in the Spanish-American War, in FIDS 41, 42.

[lxxvi] See Richard Thornburgh, Puerto Rican Separatism and United States Federalism, in FIDS 349 (Christina Duffy Barnett & Burke Marshall eds. 2001); Rogers M. Smith, The Bitter Roots of Puerto Rican Citizenship, in FIDS 393.

[lxxvii] Though both of these are suggested as strong pedagogical reasons for their inclusion in the canon of constitutional law. See Sanford Levinson, Installing the Insular Cases into the Canon of Constitutional Law, in FIDS 121, 126, 131.

[lxxviii] See Efrén Rivera Ramos, The Legal Construction of Identity: The Judicial and Social Legacy of American Colonialism in Puerto Rico(2001).

[lxxix] Efrén Rivera Ramos, Escuela de Derecho de la Universidad de Puerto Rico Recinto de Río Piedras, http://derecho.uprrp.edu/facultad/regular/efrenreiveraramos/ (last visited May 8, 2019).

[lxxx] Ramos, supra note 78, at 101. Footnote 2, accompanying the quoted text, specifically limits the definition of “discourse” to that expressed by Foucault — “linguistic phenomena.”

[lxxxi] Id. at 113.

[lxxxii] Id. at 113-14. Ramos identifies the following additional themes: a crabbed theory of democracy that treats participation as a privilege, id. at 115; The triumph of formal colonialism, id. at 117; and the ascription of plenary power to the conqueror, id. at 119.

[lxxxiii] Id. at 115.

[lxxxiv] Id. at 141.

[lxxxv] Id.

[lxxxvi] Id. at 191

[lxxxvii] Id. at 204.

[lxxxviii] Id. at 157.

[lxxxix] Id. at 182.

[xc] Bartholomew H. Sparrow, The Insular Cases and the Emergence of American Empire (2006).

[xci] See id. at xi.

[xcii] See Sanford Levinson, Installing the Insular Cases into the Canon of Constitutional Law, in FIDS 121 (arguing that the Insular Cases should be taught not only as an elaboration of the expansionist zeitgeist and racism prevalent at the turn of the twentieth century, but as a case study on modes of constitutional change).

[xciii] See Sparrow, supra note ___, at 9.

[xciv] See id. at 265, 269-70.

[xcv] See id. at 7 (identifying these among traditional modalities of political science inquiry).

[xcvi] See id. at 79-110.

[xcvii] See id. at 253.

[xcviii] See id. at 7-8.

[xcix] See Treaty of Peace (Treaty of Paris), Spain­–U.S., Dec. 10, 1898, 30 Stat. 1754. The story of Cuba, however, is a very different one. For a good overview, see Joseph C. Sweeney, Guantanamo and U.S. Law, 30 Fordham Int’l L.J. 22 (2006).

[c] See Christina Duffy Burnett, Untied States: American Expansion and Territorial Deannexation, 72 Chi. L. Rev. 797 (2005).

[ci] See id. at 799 (first articulation of the thesis).

[cii] Id. at 804-05.

[ciii] Id. at 802.

[civ] See Christina Duffy Burnett, A Convenient Constitution? Extraterritoriality after “Boumediene, 109 Colum. L. Rev. 973 (2009). This article wades into the Court’s decision in Boumediene v. Bush, 553 U.S. 723 (2008), a case holding habeas rights were applicable to detainees held without the United States. Here, Burnett leverages her account of the Insular Cases to suggest that they do support the Court’s claim that the constitution applies everywhere to Federal Government action, but that they do not support the Court’s “impracticable and anomalous” test. See Burnett, 109 Colum. L. Rev. at 979. The intervention, though dealing with then-contemporary jurisprudence, is a historical one nonetheless: The Insular Cases in fact, do not support as strong of a foreign–domestic delineation when it comes to identifying government conduct amenable to legal proscription. Id.

[cv] Amy Kaplan (who despite an appointment in an English department, has shown a keen interest in the area of American empire and the liminality of Guantánamo Bay) leverages the legal history of the Insular Cases in a sweeping analysis of the place of Guantanamo Bay in American history that criticizes human rights violations and imprisonment of terror suspects on the island. See Amy Kaplan, Where is Guantánamo?, 57 Am. Q. 831 (2005). She argues that the Insular Cases’ equivocation in extending constitutional protections to territories both “increases the range and mobility of the exercise of U.S. power abroad” and “legitimates a crushing certainty of dominion over the lives of those imprisoned in Guantánamo and other locations around the world.” See id. at 841-45. Kaplan uses the Insular Cases both as historical source material (they are primary evidence of a broader project of creating of amorphous and an unchecked global power) and as part of a prospective argument (they serve to perpetuate and license dominion in ever-expanding contexts). See id. at 851-54.

[cvi] See Andrew Kent, Boumediene, Munaf, and the Supreme Court’s Misreading of the Insular Cases, 97 Iowa L. Rev. 101 (2011).

[cvii] 192 U.S. 1 (1904)

[cviii] See Sam Erman, Meanings of Citizenship in the U.S. Empire: Puerto Rico, Isabel Gonzalez, and the Supreme Court, 1898-1905, J. Am. Ethnic Hist., Summer 2008, at 5.

[cix] Id. at 25.

[cx] See also Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America 100 (2004). Mae Ngai has also contributed to the scholarship on the Insular Cases and questions of citizenship. In her dissertation-turned-book, Impossible Subjects, Ngai lucidly, if briefly, suggests a place of infamy for the Insular Cases in their creation of second-class citizenship. She suggests the import of the creation of the category of “U.S. national” as part of the development of the novel twentieth-century concept of the “illegal immigrant.” Though her coverage is short, the significance of the claim can’t be understated: The Insular Cases reach far beyond simple questions of demarcating appurtenant territory and the rights that exist therein.

[cxi] See Sam Erman, Citizens of Empire: Puerto Rico, Status, and Constitutional Change, 102 Cal. L. Rev. 1181 (2014)

[cxii] That point is summarized most tidily in the conclusion. See id. at 1240.