Our constitutional rights should be the same, no matter where we live. Yet the federal government argues that under the controversial Insular Cases doctrine it has the power to turn the constitutional rights of Americans in U.S. territories on and off, including the basic right of citizenship by birth.
The American principle of limited government is incompatible with a doctrine that permits Congress to define for itself its constitutional limitations.
The Insular Cases were decided by the same Supreme Court that decided Plessy v. Ferguson and established what First Circuit Judge Juan Torruella has called a “doctrine of separate and unequal.” But while Plessy was later overturned by Brown v. Board of Education, the Supreme Court has never had the opportunity to squarely reconsider the Insular Cases. Tuaua v. United States may be that opportunity.
The Supreme Court has recently given signs that the Insular Cases may be on shaky ground. In Boumediene v. Bush, Justice Kennedy wrote for the Court that “[t]he Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.” He also expressed that “[i]t may well be that over time the ties between the United States and any of its unincorporated Territories strengthen in ways that are of constitutional significance.”
- Tell us what you think about Congress having the power to turn constitutional rights on and off in the territories.
- Make a donation now to help us challenge the Insular Cases. Your contribution could help bring an end to the Insular Cases’ doctrine of “separate and unequal.”
- Learn more about Tuaua v. United States.