The Insular Cases: Constitutional experts assess the status of territories acquired in the Spanish–American War (video)

More than 100 years after the U.S. Supreme Court decided a series of cases that left citizens of territories including Puerto Rico, Guam and the American Samoa with only limited Constitutional rights, Harvard Law School hosted a conference to reconsider the so-called Insular Cases and the resonance they continue to hold today.

First Circuit Judge Juan Torruella gave the keynote address titled “The Insular Cases: A Declaration of their Bankruptcy and My Harvard Pronouncement.”

Credit: Heratch Photography First Circuit Judge Juan Torruella gave the keynote address titled “The Insular Cases: A Declaration of their Bankruptcy and My Harvard Pronouncement.”

On Feb. 19, HLS hosted “Reconsidering Insular Cases,” a conference that moved through the past century with a panel on historical perspectives and lessons, a panel on contemporary issues regarding the territories, and one on the future status of Puerto Rico. The Honorable Juan Torruella, a First Circuit judge, gave a keynote address titled “The Insular Cases: A Declaration of their Bankruptcy and My Harvard Pronouncement.”

Dean Martha Minow opened the conference by confessing that during her time as a law student, she had never heard of the Insular Cases, and that she now teaches constitutional law with a casebook that does not include the cases. Nevertheless, she noted their “incredible historical importance and contemporary relevance,” which speak to the importance of equality, citizenship, sovereignty and territory.

Columbia Law Professor Christina Duffy Ponsa opened the first panel by recounting the basic narrative of the Insular Cases and then offering a critique of that historical perspective. Ponsa explained that although the United States launched the Spanish-American war under the guise of liberating Cuba, it quickly proceeded to conquer Puerto Rico, the Philippines and Guam. Although the war was short, Ponsa noted, the armed struggle gave way to a constitutional struggle with consequences that continue today.

The Constitutional struggle involved answering whether the United States can acquire territories and their peoples without ever making those territories into states—in short, whether the “Constitution follows the flag.” Both sides of the imperialist debate, Ponsa said, were “saturated with racist attitudes,” with one side arguing that the people living in the territories could not govern themselves and needed help, and the other side arguing that acquiring territories would eventually lead to statehood and therefore wanting nothing to do with colonies.

Panelists (L-R) Michael Williams, Rogers Smith, and Chimène Keitner with moderator Gerald Neuman discuss contemporary issues regarding the territories.

Credit: Heratch Photography Panelists (L-R) Michael Williams, Rogers Smith, and Chimène Keitner with moderator Gerald Neuman discuss contemporary issues regarding the territories.

The Insular Cases eventually settled the question by holding that the newly acquired territories belonged to, but were not a part of, the United States. The cases created a distinction between incorporated and unincorporated territories that remains today. The consequence was that in territories including Puerto Rico and Guam, constitutional protections do not apply unless they are fundamental, and territories have no ultimate guarantee of statehood.

Professor Gerald Neuman, co-director of the Human Rights Program, who co-organized the conference with Professor Tomiko Brown-Nagin, noted that the conference was particularly timely because a recent referendum in Puerto Rico showed widespread dissatisfaction with its current territorial status, and litigation is pending regarding the citizenship status of American Samoans. Although the conference raised “awareness of the unacceptable character of the colonialist impulse that underlay the initial structure of U.S. territorial acquisitions 100 years ago … and the urgency of reforming the situation as regards Puerto Rico,” Neuman noted, it also highlighted the disagreements about how that reform should take place and whether the same solution is needed for both Puerto Rico and other territories.

Following the panel on historical perspectives, Torruella delivered a keynote address focusing on the continued colonial relationship between the United States and Puerto Rico and advocating for a rejection of the Insular Cases as a representation of the thinking of a “morally bankrupt era” that failed to promote the basic notion that all citizens are equal before the law.

Said Brown-Nagin after the conference: “The Insular Cases conference brought the U.S. territories from the borders to the center of conversation. The forum offered a much-needed opportunity for scholars to give voice to people overlooked and histories neglected in conventional treatments of United States history, in legal studies, and in the news. The focus on the territories enabled a rich, multi-dimensional discussion of sovereignty and citizenship, culture and community, race and place, and the Court’s role in defining these shifting categories.”

View additional conference video:

Panel I: History: Perspectives and Lessons

Panelists: Christina Duffy Ponsa (Columbia Law School); Efrén Rivera Ramos (University of Puerto Rico School of Law); Bartholomew H. Sparrow (University of Texas at Austin); Moderator: Tomiko Brown-Nagin (HLS)

Panel II: Contemporary Issues Regarding the Territories

Panelists: Chimène Keitner (University of California, Hastings School of Law); Rogers Smith (University of Pennsylvania); Michael Williams, Esq.; Moderator: Gerald Neuman (HLS)

Panel III: The Future Status of Puerto Rico

Panelists: Rafael Cox Alomar, Esq.; Andres López, Esq.; Carlos Gorrín Peralta (Inter-American University of Puerto Rico School of Law) Moderator: Richard Fallon (HLS)