Judicial Antifederalism

By Anthony M. Ciolli
April 1, 2023

The United States has a colonies problem.  The more than 3.5 million Americans who live in the U.S. territories of American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands lack some of the most fundamental rights and protections, such as the right to vote.  This is due to a series of decisions decided more than a century ago, collectively known as the Insular Cases, in which the U.S. Supreme Court held that the “half-civilized,” “savage,” “ignorant and lawless” “alien races” that inhabited America’s overseas territories were not entitled to the same constitutional rights and protections afforded to Americans residing in the mainland United States, based on the idea of the white man’s burden and similar, then prevalent theories of white supremacy.

For decades, the Insular Cases have had “nary a friend in the world,”  with even the Supreme Court repeatedly imploring that they “should not be further extended.”  Yet despite their firm placement within the constitutional anticanon and having “long been reviled” by all corners of the legal community for several decades, the Insular Cases have never been overruled by the Supreme Court.  Perhaps most surprisingly, the lower federal courts in recent years have ignored the Supreme Court’s admonition and extended the Insular Cases to cover a whole host of new situations.

The failure of the Supreme Court to overrule the Insular Cases—and the lower federal courts’ extension of them even after the Supreme Court instructed them to the contrary—is unprecedented.  Why, then, do the Insular Cases not only persist, but thrive, despite virtually unanimous condemnation from all sides of the political and legal spectrums?  This Essay attributes the longevity of the Insular Cases to an unlikely source:  the failure of Congress to timely extend the well-known principle of judicial federalism, operative in all fifty states, to the five presently unincorporated territories.