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Supreme Court Blows Chance to End Racist Legacy – Bloomberg Law

By Ediberto Román
The Insular Cases, which deny citizens of Puerto Rico and four other US territories full constitutional rights, remain good law after the US Supreme Court denied review of a case involving birthright citizenship. Florida International University College of Law’s Ediberto Román looks at the flawed logic used by the court and argues the time is now to overturn these centuries-old cases.
Normally, when the US Supreme Court denies a certiorari petition, such a decision isn’t noteworthy. However, when a denial endorses racism, colonialism, and subjugation of millions of US citizens, that is worthy of mention, and condemnation.
In Fitisemanu v. United States, the high court was asked to overturn early 20th-century rulings known as the Insular Cases. John Fitisemanu, who was living in Utah, was born in American Samoa. His US passport noted that he was a non-citizen US national, and he argued that people born in the unincorporated territory are entitled to “birthright citizenship,” which is automatic for those born on US soil.
To clarify, all US citizens are US nationals, but not all US nationals are US citizens with the rights that go along with that status.
The Insular Cases upheld subordinate status of those living in overseas US island possessions. In the heated political period following the Spanish-American War, the high court considered whether the Constitution followed the flag. In other words, the court had to determine whether the inhabitants of the newly acquired lands had full constitutional rights.
In a series of decisions spanning more than two decades, the court concluded in the Insular Cases that these new members of the American landscape did not possess rights that US citizens take for granted. This included the right to vote and representation in the federal government.
Coming to the conclusion to deny the people of these lands full constitutional rights, the court created a legal fiction using an oxymoron, describing these lands as “foreign in a domestic sense.”
What is truly noteworthy and merits scorn is that the Insular Cases are blatantly racist, justifying the denial of rights with language calling the inhabitants of the newly acquired lands “savage tribes” filled with “alien races.” The court found these lands to be “inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought.”
According to the court—the same one that decided the infamously racist Plessy v. Ferguson decision—the people of these lands were unworthy of the rights associated with “Anglo-Saxon principles.”
Despite the shameful racist underpinnings of these decisions, and repeated efforts over several cases to overturn them, the Supreme Court over 100 years later repeatedly endorsed the Insular Cases, not only upholding them, but effectively endorsing the tortured logic and tragic tenor of their conclusions.
One would think this court would be more enlightened, or at the very least knowledgeable about what they are upholding—the language and logic of these decisions were utterly shameful and embarrassing not only then, but even more so now. To have this high court repeatedly endorse such holdings is unconscionable.
Not only did this court refuse to strike down the Insular Cases in Fitisemanu and consequently denied birthright citizenship of the inhabitants of the American island territories, it has also repeatedly upheld the Insular Cases.
The court in April in United States v. Vaello-Madero embraced the logic of the Insular Cases, rejecting the view that those in the US territories should receive equal treatment with other US citizens.
The only justification for making US citizens of the US territories ineligible for federal government benefits programs is that they resided in a colonial possession. Such unequal treatment reeks of naked violations of the 14th Amendment’s Equal Protection Clause.
But sadly, because of the Insular Cases, the is no equal protection for the inhabitants of US colonies.
Perhaps ironically, that conclusion is held not only by this academic, but also by conservative Justice Neil Gorsuch, who in Vaello-Madero wrote a separate decision calling for the overturning of the Insular Cases. However, only Justice Sonia Sotomayor, whose family is from the territory of Puerto Rico, shares this view.
Where are the other liberal justices on this obvious shameful denial of rights? And as one might expect, Justice Brett Kavanaugh and the ill-informed rest of the majority used the shame of the Insular Cases to continue to deny rights.
Yes, some cert denials merit mention and condemnation. It’s time to end the Insular Cases.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Ediberto Román is a law professor and nationally acclaimed constitutional law, immigration, and critical race theory scholar at Florida International University in Miami. He has published dozens of articles, essays, book chapters, and books on post-colonial discourse and constitutional law.
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