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Dan MacMeekin         Attorney at Law        Washington, DC, USA

Library … Documents …  Relations between dependent islands and the mother country … Self-government, autonomy, and the application of national laws …

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^{(Thanks to territorial-law experts Christina Burnett and David Collins for their help in compiling this summary.  Any  errors, however, are mine alone.)}

Introduction

In 1898, the United States "annexed" Hawaii. In 1899, the Treaty of Paris ended the Spanish American War. By that Treaty, Spain ceded to the United States the islands of the Philippines, Cuba, Puerto Rico, and Guam.

How these then-mostly distant islands fit into the American constitutional framework was intensely debated at the time.  In the Insular Cases, the Supreme Court of the United States established the framework for applying the United States Constitution to these islands.

Authors differ on which cases constitute the Insular Cases. Some will include only the early cases, decided between 1901 and 1904. Others call six or seven of the cases decided in 1901 the original Insular Cases and later cases the "progeny" of the Insular Cases. Rasmussen v. United States is often classed as one of the Insular Cases, though it dealt with the Territory of Alaska, part of the North American continent.  The cases in this collection include most if not all of those found on anyone's list of the Insular Cases. The Supreme Court has addressed the application of the United States Constitution to the islands in a number of other cases as well.  Many lower courts in the United States have also looked at these questions.

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The summaries here are exactly that: No one should rely on these summaries in taking a legal position. The full court opinions should be read and competent legal counsel should be consulted as necessary. Each of the opinions here summarized is linked to the full text of the opinion (and any concurring and dissenting opinions) on the FindLaw website.

A concurring opinion in the Supreme Court’s 1957 decision in Reid v. Covert cast doubt on the continuing vitality of the Insular Cases.  In 1976 the Supreme Court in Examining Board of Architects, Engineers & Surveyors v. Flores de Otero said that Reid v. Covert had indeed overruled the Insular Cases.  But in 1990 the Supreme Court, in United States v. Verduigo-Urquidez, signaled that the Insular Cases still governed how the United States Constitution applied to the insular areas of the United States that are not States of the United States.

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The summaries

De Lima v. Bidwell, 182 U.S. 1, 45 L.Ed. 1041, 21 S.Ct. 743 (1901): Puerto Rico after its cession to the United States was not a foreign country for purposes of the tariff laws of the United States, which required payment of duties on goods moving into the United States from a foreign country.  In the absence of congressional legislation, the United States Government could not  collect customs duties on sugar from Puerto Rico shipped to other parts of the United States by classifying Puerto Rico as a foreign country.

Downes v. Bidwell, 182 U.S. 244, 45 L.Ed. 1088, 21 S.Ct. 770 (1901): Puerto Rico after its cession to the United States was not a part of the United States for purposes of Article I, Section 8 of the United States Constitution requiring that "'all duties, imposts, and excises shall be uniform throughout the United States". Puerto Rico was territory subject to the jurisdiction of the United States "which is not of the United States" for purposes of the revenue clauses of the United States Constitution.  Accordingly, Congress could constitutionally impose a duty on goods shipped from Puerto Rico to the United States.

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The doctrine of territorial incorporation is generally credited to Mr. Justice White’s concurring opinion in Downes v. Bidwell. "[G]eneral prohibitions in the Constitution in favor of the liberty and property of the citizen, which are not mere regulations as to the form and manner in which a conceded power may be exercised, but which are an absolute denial of all authority under any circumstances or conditions to do particular acts . . . cannot be under any circumstances transcended, because of the complete absence of power." But other provisions in the Constitution are applicable to a territory under the jurisdiction of the United States only if Congress has "incorporated" that territory so that it became "an integral part" of the United States.

Mr. Justice Harlan eloquently dissented in Downes v. Bidwell, stating in part that "In my opinion, Congress has no existence and can exercise no authority outside of the Constitution. Still less is it true that Congress can deal with new territories just as other nations have done or may do with their new territories. This nation is under the control of a written constitution, the supreme law of the land and the only source of the powers which our government, or any branch or officer of it, may exert at any time or at any place. Monarchical and despotic governments, unrestrained by written constitutions, may do with newly acquired territories what this government may not do consistently with our fundamental law. To say otherwise is to concede that Congress may, by action taken outside of the Constitution, engraft upon our republican institutions a colonial system such as exists under monarchical governments. Surely such a result was never contemplated by the fathers of the Constitution. If that instrument had contained a word suggesting the possibility of a result of that character it would never have been adopted by the people of the United States. The idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces,—the people inhabiting them to enjoy only such rights as Congress chooses to accord to them,—is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution."

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Dooley v. United States, 182 U.S. 222, 45 L.Ed. 1041, 21 S.Ct. 762 (1901): On the cession of Puerto Rico to the United States, the U.S. military commander of Puerto Rico could no longer levy duties on goods shipped from other parts of the United States into Puerto Rico. "[T]he order imposing duties upon goods imported into [Puerto] Rico from foreign countries . . . ceased to apply to goods imported from the United States from the moment the United States ceased to be a foreign country with respect to [Puerto] Rico."

Huus v. New York & Porto Rico S.S. Co., 182 U.S. 392, 45 L.Ed. 1146, 21 S.Ct. 827 (1901): Ports in Puerto Rico were ports within the United States for purposes of the United States coastwise laws (governing shipping between ports of the United States).

Goetze v. United States, 182 U.S. 221, 45 L.Ed. 1065, 21 S.Ct. 742 (1901): Hawaii and Puerto Rico were not foreign countries for purposes of the tariff laws of the United States, following De Lima v. Bidwell.

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Fourteen Diamond Rings v. United States, 183 U.S. 176, 46 L.Ed. 138, 22 S.Ct. 59 (1901): The Philippines, after their cession to the United States by Spain, was not a foreign country for purposes of the tariff laws of the United States, following De Lima v. Bidwell.

Armstrong v. United States, 182 U.S. 243, 45 L.Ed. 1086, 21 S.Ct. 827 (1901): A claim "to recover duties exacted by the collector of the port of San Juan, [Puerto Rico] and paid under protest, upon goods [from] the United States" was sustained, following Dooley v. United States.

Hawaii v. Manikichi, 190 U.S. 197, 47 L.Ed. 1016, 23 S.Ct. 787 (1903):  Before the 1900 law enacted by the United States Congress "incorporating" Hawaii into the United States, a person accused of a crime in the Territory of Hawaii did not need to be indicted by a grand jury, as required by the Fifth Amendment to the United States Constitution, or to be tried by a petit jury conforming to the requirements of the Sixth Amendment to that Constitution.

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Kepner v. United States, 195 U.S. 100, 49 L.Ed. 114, 24 S.Ct. 797 (1904): The prohibition against double jeopardy barred an appellate court from finding a criminal defendant in the Philippine Islands guilty after acquittal by trial court. Because the United States Congress had enacted a statutory Bill of Rights for the Philippines that prohibited double jeopardy, the Supreme Court did not consider whether the double-jeopardy prohibition of the Fifth Amendment would have applied to the Philippines without that legislation.

Dorr v. United States, 195 U.S. 138, 49 L.Ed. 128, 24 S.Ct. 808 (1904): The United States Congress had not "incorporated" the Philippine Islands into the United States, so a person accused of a crime in the Philippines was not entitled to the trial by jury guaranteed by the Sixth Amendment to the United States Constitution.  Dorr was the first decision in which a majority of the Supreme Court adopted the distinction between incorporated and unincorporated territories set forth in Mr. White's concurring opinion in Downes v. Bidwell. 

Rasmussen v. United States, 197 U.S. 516, 49 L.Ed. 862, 25 S.Ct. 514 (1905): The Territory of Alaska was "incorporated" into the United States by the treaty ceding that territory to the United States. Therefore, a person accused of a crime in Alaska was entitled to the trial by jury guaranteed by the Sixth Amendment to the United States Constitution.

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Dowdell v. United States, 221 U.S. 325, 55 L.Ed. 753, 31 S.Ct. 590 (1911): A person accused of a crime in the Philippine Islands after their cession to the United States was not entitled to indictment by a grand jury under the Fifth Amendment to the United States Constitution or, following Dorr v. United States, a trial by jury as guaranteed by the Sixth Amendment to the Constitution

Ocampo v. United States, 234 U.S. 91, 58 L.Ed. 1231, 34 S.Ct. 712 (1914): The prohibition in the Fifth Amendment to the United States Constitution against trying a defendant twice for the same criminal offense was not violated when an appellate court in the Philippines, then under United States sovereignty, increased a penal sentence imposed by the trial court. The defendant was not entitled to indictment by a grand jury under the Fifth Amendment to the United States Constitution, following Dorr v. United States.

Balzac v. Porto Rico, 258 U.S. 298, 66 L.Ed. 627, 42 S.Ct. 346 (1922): The Sixth Amendment to the U.S. Constitution, requiring that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury did not apply in Puerto Rico. The right was not required in territories that had not been "incorporated" into the United States, as distinguished from territories merely belonging to the United States. "[W]e find no features in the Organic Act of Porto Rico of 1917 from which we can infer the purpose of Congress to incorporate Porto Rico into the United States with the consequences which would follow."

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Later Supreme Court Cases

Reid v. Covert, 354 U.S. 1, 1 L.Ed.2d 1148, 77 S.Ct. 1222 (1957): When the United States acts against its citizens abroad, it can do so only in accordance with all the limitations imposed by the Constitution; "The ‘Insular Cases’ can be distinguished from the present cases in that they involved the power of Congress to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions whereas here the basis for governmental power is American citizenship. … Moreover, it is our judgment that neither the cases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government." (Concurring opinion of Mr. Justice Black, for four members of the majority.)

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Examining Board of Architects, Engineers & Surveyors v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976):  In holding that Puerto Rico's statute preventing an alien from engaging in the profession of engineering violated either the Fifth or the Fourteenth Amendment to the United States Constitution, the United States Supreme Court stated:  "The Insular Cases served as precedent for holdings that a civilian dependent of an American serviceman stationed abroad could be tried by an American court-martial for offenses committed in a foreign country.  Kinsella v. Krueger, 351 U.S. 470 (1956); Reid v. Covert, 351 U.S. 487 (1956). The announcement in those cases that the Constitution applied with full force only in the States composing the Union and in incorporated Territories was overruled, however, only a year later when the Court granted petitions for rehearing, arrived at the opposite result, and withdrew the earlier opinions.  Reid v. Covert, 354 U.S. 1 (1957)."

United States v. Verdugo-Urquidez, 494 U.S. 259, 108 L.Ed.2d 222, 110 S.Ct. 1056 (1990): The Fourth Amendment to the United States Constitution does not apply to searches and seizures by United States agents of property owned by a nonresident alien and located in a foreign country; "It is not open to us in light of the Insular Cases to endorse the view that every constitutional provision applies wherever the United States Government exercises its power."

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  Dan MacMeekin  2000 -2008            Disclaimer  - the fine print                February  24, 2008