Originally applied to three cases decided in 1901, the term "insular cases" has come to denominate a series of cases decided in the early twentieth century defining the place of overseas territories in the American constitutional system. Following the acquisition of puerto rico, the Philippines, Hawaii, and various other island possessions, the Supreme Court was called upon to decide whether, or to what extent, in William Jennings Bryan's phrase, "the Constitution follows the flag." From the insular cases emerged the doctrine of incorporation of territories.
The first three insular cases (DeLima v. Bidwell, Dooley v. United States, Downes v. Bidwell) were argued together and decided in 1901. They raised the question whether Puerto Rico was part of the United States within the meaning of the "uniformity clause" for purposes of levying customs duties. In DeLima and Dooley, the Court held that from the Treaty of Paris (1899), by which Spain ceded Puerto Rico to the United States, until the Foraker Act (1900), by which Congress organized the territorial government, the collection of duties on goods moving between the United States and Puerto Rico was unconstitutional. In the far more important Downes case, the court upheld collection of duties after passage of the Foraker Act. The apparent meaning of the three cases was that the constitutional status of overseas possessions is for Congress to determine, but constitutional protection is to be assumed in the absence of congressional action. The Justices divided into three schools of thought: four Justices, led by Chief Justice melville w. fuller and Justice john marshall harlan, contended that the Constitution applied automatically and completely to any territory under United States sovereignty; Justice henry b. brown, who wrote the lead opinion in all three cases, believed that Congress, under Article IV, section 3, enjoyed plenary power over the territories and could extend to them all, any part, or none of the Constitution, at its discretion; and four Justices, led by Justice edward d. white, argued that the Constitution applied fully to the territories only after positive action by the Congress to incorporate them into the United States.
In 1903 and 1904 the Court decided four cases dealing with criminal procedure in Hawaii, Puerto Rico, and the Philippines (Hawaii v. Mankichi, Crowley v. United States, Kepner v. United States, Dorr v. United States). The Court made a distinction between fundamental or natural rights, which are constitutionally protected everywhere, and rights merely procedural or remedial, peculiar to Anglo-American jurisprudence, which do not apply in the territories—at least "until Congress shall see fit to incorporate the … territory into the United States." In the former category was protection against double jeopardy; in the latter were indictment by grand jury, trial by jury, and jury unanimity. Dorr (1904) was the first case in which the incorporation of territories doctrine received the formal assent of a majority of the Court.
In the 1905 case of Rasmussen v. United States, the Court unanimously held the jury trial guarantee of the sixth amendment applicable to Alaska. White, writing for himself and six colleagues, demonstrated that Congress had explicitly incorporated Alaska into the United States and thus had brought its residents under complete constitutional protection. Harlan and Brown, in separate concurring opinions, each reiterated his original position on the Constitution and the territories.
In Trono v. United States (1905) and Dowdell v. United States (1911), the Court sustained Philippine criminal convictions obtained through indigenous procedures which would have violated the Sixth Amendment had the Philippines been incorporated territory. But in weems v. united states (1910), the Court ruled that since Congress had extended the protection against cruel and unusual punishment to the Philippines, the protection was identical to that enjoyed by mainlanders under the Eighth Amendment.
The most forceful and consistent opposition to the incorporation doctrine came from Justice Harlan. He argued that all of Congress's power flows from the Constitution, and therefore Congress is bound in its every action by that document's limitations and guarantees. The "occult" doctrine of the insular cases, he said, permitted Congress, contrary to the spirit and genius of the Constitution, to erect a colonial empire and exercise absolute dominion over dependent peoples.
In Board of Public Utilities Commissioners v. Ynchausti (1920), White, by then Chief Justice, was able to report the Court's unanimous acceptance of the incorporation of territories doctrine; and in Balzac v. Porto Rico (1922), Chief Justice william howard taft, for a unanimous Court, applied it as the settled law governing the status of territories.
Dennis J. Mahoney
Bloom, John Porter, ed. 1973 The American Territorial System. Athens: Ohio University Press.
Coudert, Frederick R. 1926 The Evolution of the Doctrine of Territorial Incorporation. Columbia Law Review 66:823–850.
Fuster, Jaime B. 1974 Origins of the Doctrine of Territorial Incorporation and Its Implications Regarding the Power of the Commonwealth of Puerto Rico to Regulate Interstate Commerce. Revista Juridica de la Universidad de Puerto Rico 43:259–294.
Semonche, John E. 1978 Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920. Chaps 5 and 6. Westport, Conn.: Greenwood Press.