United States v. Vaello Madero

JUSTICE GORSUCH, concurring.¶

A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.¶

I¶

The Insular Cases were the product of what John Hay called a ''splendid little war.'' F. Freidel, The Splendid Little War 3 (1958) (quoting letter from J. Hay to T. Roosevelt). Ostensibly waged to liberate Cuba and avenge the sinking of the Maine , the Spanish-American War proved a boon for the country’s burgeoning colonial ambitions. See J. Cabranes, Citizenship and the American Empire, 127 U. Pa. L. Rev. 391, 392–395, and nn. 3–4 (1978) (Cabranes); K. Wenzer, Theodore Roosevelt and the United States Battleship Maine , 9 Fed. Hist. 111, 113–116, 124–128 (2017). The aging Spanish empire was in no position to defend its island possessions, and several fell to American forces in quick succession. See G. Lawson & G. Seidman, The Constitution of Empire: Territorial Expansion and American Legal History 111 (2004) (Lawson & Seidman). Under the ensuing peace treaty signed in 1898, the United States took possession of Puerto Rico, Guam, and the Philippines. Treaty of Paris, Arts. 1–3, Dec. 10, 1898, 30 Stat. 17551756.¶

But these acquisitions, hard on the heels of the annexation of Hawaii, soon ignited a fierce debate. Some argued that our republican traditions prevented the United States from governing distant possessions as subservient colonies without regard to the Constitution. Others sought to devise new theories by which Congress could permanently rule the country’s new acquisitions as a European power might, unrestrained by domestic law. See Cabranes 395.¶

Leading members of the legal academy provided influential support for those in the second camp. Their work culminated in a series of articles in the Harvard Law Review in 1899. Christopher Langdell argued that the Bill of Rights was “so peculiarly . . . English that an immediate and compulsory application of [those rights] to ancient and thickly settled Spanish colonies would furnish . . . proof of our unfitness to govern dependencies, or deal with alien races.” The Status of Our New Territories, 12 Harv. L. Rev. 365, 386 (1899). James Bradley Thayer contended that “there is no lack of power in our nation . . . to govern these islands as colonies, substantially as England might govern them.” Our New Possessions, 12 Harv. L. Rev. 464, 467 (1899). Abbott Lawrence Lowell submitted that, “apart from treaty or legislation, possessions acquired by conquest or cession do not become a part of the United States,” and “constitutional limitations . . . do not apply.” The Status of Our New Possessions: A Third View, 13 Harv. L. Rev. 155, 176 (1899). Such rules, he said, “are inapplicable except among a people whose social and political evolution has been consonant with our own.” Ibid.¶

The debate over American colonialism made its first appearance in this Court in the form of a tax dispute in Downes v. Bidwell , 182 U. S. 244 (1901). Pursuant to the¶

Foraker Act, Congress erected a civil government in Puerto Rico and imposed a tax on goods exported to, or imported from, the new Territory. See Act of Apr. 12, 1900, ch. 191, §§ 2–3, 31 Stat. 77–78. After incurring a $659.35 tax bill, an importer challenged the Act as inconsistent with the Constitution’s Tax Uniformity Clause, which provides that “all Duties, Imposts, and Excises shall be uniform throughout the United States.” Art. I, § 8, cl. 1; Downes , 182 U. S., at 247, 249.¶

To answer the question whether the Act complied with the Constitution, the Court resolved that it first had to decide whether the Constitution applied at all in Puerto Rico. Ultimately, a fractured set of opinions emerged. Employing arguments similar to those advanced by Professors Langdell and Thayer, Justice Brown saw things in the starkest terms. Applying the Constitution made sense in “contiguous territor[ies] inhabited only by people of the same race, or by scattered bodies of native Indians.” Id ., at 282. But it would not do for islands “inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought.” Id. , at 287. There, Justice Brown contended, “the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible.” Ibid. On his view, the Constitution should reach Puerto Rico only if and when Congress so directed. Id. , at 279.¶

Justice White offered a different theory that drew on Professor Lowell’s thinking. See Developments in the LawThe U. S. Territories, 130 Harv. L. Rev. 1616, 1617–1620 (2017). To Justice White, the Constitution’s application depended on “the situation of the territory and its relations to the United States.” Downes , 182 U. S., at 293 (concurring opinion). In some cases, Congress might express an intention to “incorporate” a Territory into the United States at a future date; in a Territory like that the Constitution must apply fully and immediately. Id. , at 339. But in other cases, Justice White argued, only “fundamental” (if unspecified) aspects of the Constitution should have force. Id., at 291. In his judgment, Puerto Rico fell into this second category and remained “foreign to the United States” because, unlike Territories in the American West, Congress had not done enough to indicate its intention to “incorporate” the island. Id. , at 341–342. Still, it would be a mistake to overstate the gap between the theories advanced by Justice White and Justice Brown. At bottom, both rested on a view about the Nation’s “right” to acquire and exploit “an unknown island, peopled with an uncivilized race . . . for commercial and strategic reasons”—a right that “could not be practically exercised if the result would be to endow” full constitutional protections “on those absolutely unfit to receive [them].” Id. , at 306 (White, J., concurring).¶

In dissent, Chief Justice Fuller expressed astonishment that Congress could “keep [a Territory], like a disembodied shade, in an intermediate state of ambiguous existence for an indefinite period.” Id. , at 372. Justice Harlan criticized the Court for “engraft[ing] upon our republican institutions a colonial system such as exists under monarchical governments.” Id. , at 380. And Justice Harlan dismissed Justice White’s supposed middle ground, which he could find nowhere in the Constitution’s terms: “I am constrained to say that this idea of ‘incorporation’ has some occult meaning which my mind does not apprehend.” Id. , at 391.¶

Later decisions blurred the line between Justice Brown’s approach and Justice White’s even further. Eventually, a majority embraced Justice White’s “incorporation” theory, including its suggestion that certain constitutional protections are “fundamental” and therefore apply even in farflung “unincorporated” possessions. Dorr v. United States , 195 U. S. 138, 148–149 (1904). At the same time, it became clear that very few constitutional limits on the power of the federal government could be relied upon in the newly acquired Territories absent a clear congressional statement.¶

See, e.g. , Hawaii v. Mankichi , 190 U. S. 197, 215–216 (1903) (opinion of Brown, J.); id. , at 218–219 (White, J., concurring); Cf. S. Laughlin, The Burger Court and the United States Territories, 36 U. Fla. L. Rev. 755, 773 (1984) (“[W]hile Justice White had won the battle over which doctrine should nominally prevail, Justice Brown had won the war”).¶

Even the right to trial by jury, the Court concluded, was not fundamental enough to apply in unincorporated Territories like Puerto Rico. Balzac v. Porto Rico , 258 U. S. 298, 306, 308–310 (1922). It did not matter to the Court that, by the time it reached the question, Congress had already granted Puerto Ricans U. S. citizenship. See Act of Mar. 2, 1917, § 5, 39 Stat. 953. In the Court’s estimation, the “locality [was] determinative of the application of the Constitution, . . . not the status of the people who live in it.” Balzac , 258 U. S., at 309. And, on the Court’s account, Puerto Rico’s “localities” included “compact and ancient communities” that had not yet developed the “impartial attitude” or “conscious duty of participation” required of citizens by the “Anglo-Saxon” jury trial. Id. , at 310.¶

II¶

The flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of “incorporated” and “unincorporated” Territories. Nothing in it extends to the latter only certain supposedly “fundamental” constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion.¶

The Insular Cases can claim support in academic work of the period, ugly racial stereotypes, and the theories of social Darwinists. But they have no home in our Constitution or its original understanding. In this country, the federal government “deriv[es] its powers directly” from the sovereign people, McCulloch v. Maryland , 4 Wheat. 316, 404–405 (1819), and is empowered to act only in accord with the terms of the written Constitution the people have approved, Marbury v. Madison , 1 Cranch 137, 176–177 (1803). Empires and duchies in Europe may have subscribed to the “doctrine . . . that the people were made for kings, not kings for the people.” The Federalist No. 45, p. 289 (C. Rossiter ed. 1961) (J. Madison). “Monarchical and despotic governments” may possess the power to act “unrestrained by written constitutions.” Downes , 182 U. S., at 380 (Harlan, J., dissenting). But our Nation’s government “has no existence except by virtue of the Constitution,” and it may not ignore that charter in the Territories any more than it may in the States. Id. , at 382.¶

The Insular Cases’ departure from the Constitution’s original meaning has never been much of a secret. Even commentators at the time understood that the notion of territorial incorporation was a thoroughly modern invention. 1 The Insular Cases deviated, too, from this Court’s prior and longstanding understanding of the Constitution. In 1898, the very same year as the Spanish-American War, a lopsided majority of this Court judged it “beyond question” that the Constitution’s jury-trial guarantees reached “the territories of the United States.” Thompson v. Utah , 170 U. S. 343, 346–347 (1898) (Harlan, J.). Nearly 80 years before that, the Court held that the Constitution’s Tax Uniformity Clause constrained legislation governing the District of Columbia. Loughborough v. Blake , 5 Wheat. 317, 319 (1820) (Marshall, C. J.). In between, this Court reached¶

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1 See C. Littlefield, The Insular Cases, 15 Harv. L. Rev. 169, 169–170 (1901); F. Coudert, The Evolution of the Doctrine of Territorial Incorporation, 26 Colum. L. Rev. 823, 832 (1926) (Coudert); see also M. Ramsey, Originalism and Birthright Citizenship, 109 Geo. L. J. 405, 435 (2020); Lawson & Seidman 196–197.¶

similar conclusions in case after case. 2¶

With the passage of time, this Court has come to admit discomfort with the Insular Cases. See Reid v. Covert , 354 U. S. 1, 14 (1957) (plurality opinion); Financial Oversight and Mgmt. Bd. for Puerto Rico v. Aurelius Investment, LLC , 590 U. S. ___, ___–___ (2020) (slip op., at 21–22). But instead of confronting their errors directly, this Court has devised a workaround. Employing the specious logic of the Insular Cases, the Court has proceeded to declare “fundamental”—and thus applicable even to “unincorporated” Territories—more and more of the Constitution’s guarantees. See S. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Texas L. Rev. 1, 241–243 (2002) (collecting cases).¶

That solution is no solution. It leaves the Insular Cases on the books. Lower courts continue to feel constrained to apply their terms. See, e.g. , Fitisemanu v. United States , 1 F. 4th 862, 873 (CA10 2021); Tuaua v. United States , 788 F. 3d 300, 306–307 (CADC 2015). And the fictions of the Insular Cases on which this workaround depends are just that. What provision of the Constitution could any judge rightly declare less than fundamental? On what basis could any judge profess the right to draw distinctions between incorporated and unincorporated Territories, terms nowhere mentioned in the Constitution and which in the past have turned on bigotry? There are no good answers to these bad questions.¶

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2 See, e.g. , Springville v. Thomas , 166 U. S. 707, 708–709 (1897) (Seventh Amendment jury-unanimity requirement applied in Utah Territory); Wilkerson v. Utah , 99 U. S. 130, 137 (1879) (Eighth Amendment prohibition on cruel and unusual punishment applied in Utah Territory); Reynolds v. United States , 98 U. S. 145, 154, 158, 162 (1879) (Sixth Amendment jury-trial and confrontation rights and First Amendment free-exercise right applied in Utah Territory); see also Cross v. Harrison , 16 How. 164, 193, 197–198 (1854) (domestic law, including the Tax Uniformity Clause, applied in California).¶

This workaround, too, has proven as ineffectual as it is inappropriate. Perhaps this Court can continue to drain the Insular Cases of some of their poison by declaring provision after provision of the Constitution “fundamental” and thus operative in “unincorporated” Territories. But even one hundred years on, that pitiable job remains unfinished. Still today under this Court’s cases we are asked to believe that the right to a trial by jury remains insufficiently “fundamental” to apply to some 3 million U. S. citizens in “unincorporated” Puerto Rico. At the same time, the full panoply of constitutional rights apparently applies on the Palmyra Atoll, an uninhabited patch of land in the Pacific Ocean, because it represents our Nation’s only remaining “incorporated” Territory. 3 It is an implausible and embarrassing state of affairs.¶

The case before us only defers a long overdue reckoning. Rather than ask the Court to overrule the Insular Cases, both sides in this litigation work from the shared premise that the equal protection guarantee under which Mr. Vaello Madero brings his claim is a “fundamental” feature of the Constitution and thus applies in “unincorporated” Territories like Puerto Rico. See Tr. of Oral Arg. 10–11; Brief for¶

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3 The atoll lies approximately 1,000 miles from Hawaii. Palmyra Atoll, Dept. of Interior, Office of Insular Affairs (last visited Apr. 19, 2022), https://www.doi.gov/oia/islands/palmyraatoll (Palmyra Atoll DOI Overview). When Congress supposedly “incorporated” Hawaii as a Territory, it included Palmyra, then a Hawaiian possession. See Act of Apr. 30, 1900, ch. 339, §§ 2–5, 31 Stat. 141–142; Hawaii v. Mankichi , 190 U. S. 197, 211 (1903) (Congress “formally incorporated” Hawaii in 1900); United States v. Fullard-Leo , 331 U. S. 256, 259 (1947). Ultimately, however, the atoll was not folded into Hawaii on statehood, and it remained under federal control. See Act of Mar. 18, 1959, Pub. L. 86–3, § 2, 73 Stat. 4; Act of July 12, 1960, § 48, 74 Stat. 424. So today our bureaucracies endow that Territory alone a capital “T” in their official lists while the others, Puerto Rico included, earn only a lowercase “t.” See Palmyra Atoll DOI Overview.¶

United States 12. Proceeding on the parties’ shared premise, the Court applies the Constitution and holds that the conduct challenged here does not offend its terms. All that may obviate the necessity of overruling the Insular Cases today. But it should not obscure what we know to be true about their errors, and in an appropriate case I hope the Court will soon recognize that the Constitution’s application should never turn on a governmental concession or the misguided framework of the Insular Cases. Asked why he dissented in those cases year after year, Justice Harlan replied that ''no question can be settled until settled right.'' Coudert 842. We should settle this question right.¶

To be sure, settling this question right would raise difficult new ones. Cases would no longer turn on the fictions of the Insular Cases but on the terms of the Constitution itself. Disputes are sure to arise about exactly which of its individual provisions applies in the Territories and how. Some of these new questions may prove hard to resolve. But at least they would be the right questions. And at least courts would employ legally justified tools to answer them, including not just the Constitution’s text and its original understanding but the Nation’s historical practices (or at least those uninfected by the Insular Cases). See Fitisemanu , 1 F. 4th, at 883 (Tymkovich, C. J., concurring); see also NLRB v. Noel Canning , 573 U. S. 513, 525 (2014); id. , at 572–574, and n. 1 (Scalia, J., dissenting); W. Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 13–21 (2019). Nor, in any event, can the difficulty of the task supply an excuse for neglecting it. 4¶

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4 In the last few years, some have attempted a revisionist account of the Insular Cases. On this view, this Court’s decision to withhold full constitutional protection from “unincorporated” Territories (now) serves the beneficial end of safeguarding traditional cultures. See, e.g. , Fitisemanu , 1 F. 4th, at 870. Put aside the amicus briefs from the Governor of Puerto Rico, territorial advocacy groups, and the U. S. Virgin Islands expressing vehement disagreement with the Insular Cases. Put aside, too,¶

*¶

Because no party asks us to overrule the Insular Cases to resolve today’s dispute, I join the Court’s opinion. But the time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them. We should follow Justice Harlan and settle this question right. Our fellow Americans in Puerto Rico deserve no less.¶

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the uncomfortable truth that recent attempts to repurpose the Insular Cases merely drape the worst of their logic in new garb. At bottom, the Constitution’s restraints on federal power do not turn on a court’s unschooled assessment of a Territory’s local customs or contemporary currents in public opinion or academic theory. Our government may not deny constitutionally protected individual rights out of (purportedly) benign neglect any more than it may out of animus.¶