[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H. Res. 279 Introduced in House (IH)]
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117th CONGRESS
1st Session
H. RES. 279
Acknowledging that the United States Supreme Court's decisions in the
Insular Cases and the ``territorial incorporation doctrine'' are
contrary to the text and history of the United States Constitution,
rest on racial views and stereotypes from the era of Plessy v. Ferguson
that have long been rejected, are contrary to our Nation's most basic
constitutional and democratic principles, and should be rejected as
having no place in United States constitutional law.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 26, 2021
Mr. Grijalva (for himself, Ms. Plaskett, Mr. Sablan, Mr. San Nicolas,
Miss Gonzalez-Colon, Ms. Velazquez, Mr. Garcia of Illinois, and Mr.
Torres of New York) submitted the following resolution; which was
referred to the Committee on the Judiciary, and in addition to the
Committee on Natural Resources, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
RESOLUTION
Acknowledging that the United States Supreme Court's decisions in the
Insular Cases and the ``territorial incorporation doctrine'' are
contrary to the text and history of the United States Constitution,
rest on racial views and stereotypes from the era of Plessy v. Ferguson
that have long been rejected, are contrary to our Nation's most basic
constitutional and democratic principles, and should be rejected as
having no place in United States constitutional law.
Whereas territories have been an important part of the United States since the
beginning of our Nation, starting with the Northwest Territory in 1787,
with Chief Justice John Marshall writing for the Supreme Court in 1820
that ``the United States'' is ``the name given to our great republic,
which is composed of States and territories'' (Loughborough v. Blake, 18
U.S. (5 Wheat.) 317, 319 (1820));
Whereas today the United States has 5 populated territories, American Samoa, the
Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the
Virgin Islands of the United States, which together have a population of
over 3,500,000 residents, equal to the population of the 5 smallest
States combined, more than 95 percent of whom are racial or ethnic
minorities;
Whereas Puerto Rico and Guam have now been a part of the United States since
1898, American Samoa since 1900, the Virgin Islands of the United States
since 1917, and the Commonwealth of the Northern Mariana Islands since
1986;
Whereas until the Insular Cases were decided in the early 1900s, the Supreme
Court long recognized that Congress' powers over the territories, while
broad, were ``not absolute and unlimited'', but rather subject ``to such
restrictions as are expressed in the Constitution'' (Murphy v. Ramsey,
114 U.S. 15, 44 (1885));
Whereas following the acquisition of Hawaii, Puerto Rico, Guam, and other
overseas territories in 1898, the Supreme Court's decisions in the
Insular Cases broke from its prior precedent to establish a doctrine of
territorial incorporation, creating for the first time a distinction
between so-called ``incorporated'' territories, where the United States
Constitution applies ``in full'', and ``unincorporated'' territories,
where the Constitution applies ``only in part'' (Boumediene v. Bush, 553
U.S. 723, 757 (2008));
Whereas the judgment of the Court in Downes v. Bidwell (182 U.S. 244 (1901)),
the most prominent of the Insular Cases, was delivered by Justice Henry
Billings Brown, the author of Plessy v. Ferguson's doctrine of
``separate but equal'', who wrote that America's newly acquired overseas
territories were ``inhabited by alien races, differing from us in
religion, customs, . . . and modes of thought'', making it impossible to
govern ``according to Anglo-Saxon principles'';
Whereas Justice Edward White, who in a separate 3-Justice plurality developed
the territorial incorporation doctrine in Downes, expressed concerns
over the ``evils'' of admitting ``millions of inhabitants'' of ``unknown
islands, peopled with an uncivilized race'', who he believed would be
``absolutely unfit'' for citizenship;
Whereas 4 Justices dissented in Downes, with Chief Justice Melville Fuller
commenting that ``[g]reat stress is thrown upon the word
`incorporation,' as if possessed of some occult meaning'', and Justice
John Marshall Harlan expressing that the ``idea of `incorporation' . . .
is enveloped in some mystery which I am unable to unravel'';
Whereas Justice Harlan, who penned the lone dissent to Plessy v. Ferguson, also
wrote a series of powerful dissents to the Insular Cases, declaring in
Downes that ``[t]he idea that this country may acquire territories
anywhere upon the earth, by conquest or treaty, and hold them as mere
colonies or provinces--the people inhabiting them to enjoy only such
rights as Congress chooses to accord to them--is wholly inconsistent
with the spirit and genius, as well as with the words, of the
Constitution'';
Whereas the Insular Cases and the territorial incorporation doctrine have long
received significant criticism from the Supreme Court and a broad range
of jurists and legal scholars;
Whereas, in 2008, the Supreme Court stated 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'',
expressing further that ``over time the ties between the United States
and any of its unincorporated Territories [may] strengthen in ways that
are of constitutional significance'' (Boumediene v. Bush, 553 U.S. at
758, 765 (2008));
Whereas, in 2020, the Supreme Court questioned the ``continued validity'' of the
Insular Cases, indicating ``that the Insular Cases should not be further
extended'' (Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., 140
S.Ct. 1649, 1665 (2020));
Whereas Judge Juan Torruella, who served on the United States Court of Appeals
for the First Circuit from 1984 until his death in 2020, labeled the
territorial incorporation doctrine a ``doctrine of separate and
unequal'', writing that ``the Insular Cases represent classic Plessy v.
Ferguson legal doctrine and thought that should be eradicated from
present-day constitutional reasoning'' because they run contrary to
``the most basic precept for which this nation stands: the equality
before the law of all its citizens'';
Whereas Chief Judge Gustavo Gelpi, who has served on the United States District
Court for the District of Puerto Rico since 2006, has called the Insular
Cases' territorial incorporation doctrine ``a doctrine of pure judicial
invention, with absolutely no basis in the Constitution and one that is
contrary to all judicial precedent and territorial practice'';
Whereas legal scholars with a wide range of views have criticized the Insular
Cases and the territorial incorporation doctrine, with prominent
originalist legal scholar Gary Lawson writing that ``there is nothing in
the Constitution that even intimates that express constitutional
limitations on national power apply differently to different
territories'', and leading Constitutional Law Professor Sanford Levinson
calling the Insular Cases ``central documents in the history of American
racism'';
Whereas the territorial incorporation doctrine established by the Insular Cases
is still used to perpetuate the second-class treatment of Americans
living in the territories, from the denial of citizenship, to the denial
of voting rights, to the denial of equality in Federal benefits
programs; and
Whereas the time has come to expressly reject the Insular Cases as both contrary
to the Constitution's text and history and as incompatible with our
Nation's core values: Now, therefore, be it
Resolved, That the House of Representatives--
(1) recognizes that America's constitutional and democratic
principles apply throughout the United States, including both
States and territories;
(2) acknowledges that the Insular Cases are contrary to the
text and history of the Constitution;
(3) acknowledges that the Insular Cases are relics of the
racial views of an earlier era that have no place in our Nation
today; and
(4) rejects the Insular Cases and their application to all
present and future cases and controversies involving the
application of the Constitution in United States territories.
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