Michael Ramsey's "The Originalist Case Against the Insular Cases"

In the Insular Cases of the early twentieth century, the Supreme Court ruled that much of the Constitution does not apply to America’s “unincorporated” overseas territories, such as Puerto Rico. Thus, the federal government could rule the people there without being constrained by a variety of constitutional rights.  In 2022, Supreme Court Justice Neil Gorsuch urged the Court to overrule these decisions.

Prominent originalist legal scholar Michael Ramsey has an important new article explaining why Gorsuch was right. Here is the abstract:

Concurring in United States v. Vaello Madero, Justice Neil Gorsuch argued that the Insular Cases are contrary to the Constitution’s original meaning and should be overruled. The Supreme Court’s decisions in the Insular Cases, which created a second-class constitutional status for U.S. overseas territories, have also been criticized by leading originalist scholars such as Professors Gary Lawson and Michael Paulsen. However, there is no fully developed scholarly assessment of the Insular Cases from an originalist perspective; their inconsistency with an originalist approach is more assumed than proven. This Article fills that gap. Using the methodology of original public meaning, it considers the constitutional status of U.S. territories from the founding era through the early nineteenth century to the constitutionalization of U.S. citizenship in the Fourteenth Amendment.

Although the matter is somewhat more complicated than Justice Gorsuch’s concurrence may suggest, this Article finds no foundation in traditional originalist sources for the Insular Cases’ differential treatment of overseas territories. To the contrary, it concludes that U.S. territories were widely understood to be broadly encompassed by the Constitution without differentiation until an academic and judicial reassessment at the beginning of the twentieth century, impelled by U.S. acquisition of territories with substantial non-white populations, set the stage for the Court’s newly invented doctrine. This Article thus concludes that Justice Gorsuch’s assessment is correct and should carry weight with the Court’s originalist-oriented majority. Finally, this Article examines from an originalist perspective the implications for territorial government of overruling the Insular Cases, which it concludes would be significant but not substantially destabilizing.

At the Legal Theory Blog, Prof. Larry Solum gives this article his much-coveted “highly recommended” rating.  I agree! The article is both compelling and important.

I would add that the Insular Cases are not the only important nonoriginalist, atextual abrogations of constitutional rights blessed by the Supreme Court as a result of late-19th century racial bigotry. The same is true of the “plenary power” doctrine, which exempts immigration restrictions from many of the constitutional constraints that apply to all other exercises of federal power. While later decisions have called elements of this doctrine into question, enough remains that it is not completely clear whether, for example, the government can deport immigrants for speech protected by the First Amendment (though I argue the answer should be an emphatic “no”).

The Supreme Court would do well to definitively repudiate both these pernicious legacies of the same era that gave us Plessy v. Ferguson.

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