WASHINGTON – Judge Neil M. Gorsuch last month issued a 10-page unanimous opinion that constituted a plea. The Supreme Court, he wrote, must find a case in which one can override a series of discredited decisions made in the early 1900s that were based on racist assumptions and imperial ambitions.
The rulings, known as Insular Cases, said some U.S. territories, such as Puerto Rico and Guam, are not entitled to all the protections of the Constitution.
“The errors in the isolated cases are as fundamental as they are shameful,” Judge Gorsuch wrote, adding: “Insular cases have no basis in the constitution and instead rest on racial stereotypes. They deserve no place in our law.”
The court, he wrote, should override these decisions in “an appropriate case.” He seemed to have one in mind. Last year, the U.S. Court of Appeals for the 10th Circuit in Denver relied on the Insular case to deny birthright citizenship to persons born in American Samoa.
Judge Gorsuch cited the decision, Fitisemanu v. The United States, three times.
Last week, just six days after Judge Gorsuch delivered his opinion, a petition asking the judges to review this decision arrived at the Supreme Court. It asked the judges to decide, “whether the isolated cases should be set aside.”
The Insular Cases, issued between 1901 and 1922, said that so-called unincorporated territories had second-class status because, as a justice put it in 1901, they were “people of an uncivilized race” who were “absolutely unfit to receive” “immediate granting of citizenship.”
American Samoa, consisting of islands in the South Pacific, became an American territory in 1900. Its inhabitants live in a kind of constitutional limbo.
A federal law states that American Samoan are “citizens, but not citizens, of the United States at birth,” who nonetheless owe “permanent allegiance to the United States.”
As the petition put it, “they are nowhere citizens.”
If they move to other parts of the United States, they cannot vote in state or federal elections, serve on juries, or be officers in the armed forces. However, they can serve in the military, and American Samoans have signed up for a strikingly high pace.
Three men born in American Samoa, living in Utah, sued for citizenship, and Judge Clark Waddoups of the Utah Federal District Court ruled in their favor. He rejected the federal government’s argument that the constitution does not require citizenship of birth for people born in non-incorporated territories, and that “any means here should come from Congress, not the federal judiciary.”
Judge Waddoups also rejected the views of the government of American Samoa, which said that citizenship should not be imposed on the wishes of many citizens who fear it would jeopardize their traditional cultural and religious practices.
The judge ruled instead of the challengers, relying on the citizenship clause in the 14th Amendment, which states that “all persons born or naturalized in the United States and subject to its jurisdiction are nationals of the United States.”
A split panel of three judges from the U.S. Court of Appeals for the 10th Circuit overturned Judge Waddoups’ decision with reference to the Insular cases.
Judge Carlos F. Lucero, who wrote for the majority, acknowledged that the cases “have become controversial” and “have been criticized for being equivalent to a license for further imperialist expansion and for being based at least in part on racist ideology.”
However, Judge Lucero concluded that “the Insular cases provide the correct framework for the application of constitutional provisions to the unincorporated territories.” Within that framework, he wrote, the plaintiffs were not entitled to citizenship at birth as a constitutional right.
Congress is free to grant American Samoa birthright citizenship, as it has done to persons born in Puerto Rico, Guam, the Northern Mariana Islands, and the US Virgin Islands. But the constitution, he wrote, is silent on the matter.
Judge Lucero added that it may be possible to “reuse” the island cases “in order to preserve the dignity and autonomy of the peoples of America’s overseas territories”, especially by protecting the indigenous culture and traditions.
But in his concluding statement last month, Judge Gorsuch was skeptical of what he called “a revisionist narrative” as a matter of both logic and law.
“Attempts to recycle Insular cases cover only the worst of their logic in new clothes,” he wrote.
“Basically,” Judge Gorsuch wrote, “the constitutional limitations of federal power do not activate a court’s uneducated assessment of a territory’s local customs or contemporary currents in public opinion or academic theory.”
Justice Gorsuch is not alone in criticizing the Insular cases. In a dissent in last month’s decision, which was about the availability of some social security services in Puerto Rico, Judge Sonia Sotomayor wrote that the cases were “based on both disgusting and false beliefs.” In an argument in 2019 in a case stemming from the Puerto Rican debt crisis, Judge Stephen G. Breyer said the cases had cast a “dark cloud”.
The Supreme Court has developed what Judge Gorsuch called a solution to avoid the worst implications of the Insular cases, ruling that most constitutional rights are so fundamental that they must apply in all territories.
“That solution is no solution,” he wrote. “It leaves Insular Cases on the books.”