The Insular Cases: A Troubled Past and a Hopeful Future
- WULR Team
- Apr 15
- 5 min read
An analysis of the Insular Cases
Published April 15th, 2026
Written by Nathan May
As most high school civics alumni know, the Constitution is the supreme law of the land. It is above executive power, above legislative creep, and uses the judiciary to enforce its word. There is a doctrine completely separate from the Constitution. It is a phantom in the court's imagination, existing prior to and apart from the supreme law of the land. The “Plenary Powers Doctrine” gives the right for the federal government to exercise foreign affairs power. This rarely-taught doctrine gives the federal government the right to govern peoples in Native American lands and territories as they see fit. The government, for example, could dissolve a tribe’s charter, dismiss a locally elected government in a territory or install their own rule, at their discretion. This could happen with or without any reason, all with judiciary approval.
The McKinley era from 1897-1901, was the McKinley presidency, colonialistic catch-up, protective tariffs, and an expanding U.S. domestic industry. After the Spanish-American War, the U.S. found itself, for the first time, needing to answer the question of citizenship for newly acquired lands. Looking back, The U.S. has not faced this expansion for the first time. The Indian Wars and subsequent domination was not only an armed conflict, but a culture war. The “white man's burden” is a phrase used in exploration times to portray the colonists as saviors. It is their job to “civilize and baptise" these foreign peoples. Unequivocally, this was racist rhetoric, even contemporarily. The American “civilized” culture moreover used the same logic against Native Americans. For example, L. Frank Baum, the author of The Wizard of Oz, had this quote after the Hunkpapa Lakota leader, Sitting Bull, died shortly before the Wounded Knee massacre, “The Whites, by law of conquest, by justice of civilization, are masters of the American continent… Why not annihilation? Their glory has fled, their spirit broken, their manhood effaced; better that they die than live the miserable wretches that they are.” This was not a niche mentality at the time, and led to the American culture of thinking that foreigners, especially non-white peoples, were culturally inferior to Americans.
During McKinley’s time, this was still the mandate of the day. After the Spanish-American War, the US had acquired sovereignty of the isles of Puerto Rico, Philippines and Guam. In addition, Cuba was occupied by the military until its independence in 1902. McKinley wanted sovereignty of these territories without giving the people citizenship or constitutional rights of any kind. There was only one time the constitution mentioned territories and has since been called the territories clause. This gave Congress unlimited legislative power to do what they see fit within territories. The solution came from the judiciary in a series of decisions named “The Insular Cases”. Mostly 5-4 decisions, this gave Mickelney his desired sovereignty without rights. The decisions also split territories into "incorporated" and “unincorporated”. In the unincorporated territories, the Constitution would not always be applicable. Along with no promises of political representation within the US “Belonging to, but not part of”, on the other hand, incorporated states like Hawaii and Alaska were destined for statehood and had full political and constitutional rights. This classification of states did not come from geo-political maneuver, nor popular vote or congressional acceptance. It came from a subsequent doctrine of “racial differences". The non-white inhabitants of the former Spanish holdings were judicially deemed incapable of self-governance or US citizenship or constitutional rights.
Even when the Insular Cases were being adjudicated, they were controversial. The decisions were almost always divided 5-4 and inconsistent application between the two biggest new holdings Puerto Rico and the Philippines was a sharply criticized policy. Puerto Rico was seen as an asset to Latin America and was planned to be held indefinitely. While the Philippines was seen as a temporary territory and was planned to be autonomous in the future. The Filipino people gained independence in 1946 after World War II. Additionally, the Insular Cases gave the unincorporated territories rights "fundamental to a scheme of ordered liberty”. This has since been up to judicial interpretation of what rights are considered "fundamental" and the courts have to grant the territories rights in a process that mirrors selective incorporation. The judiciary has since selected rights such as due process and freedom of speech as “fundamental rights”. In opposition, the right to a jury trial and the Second Amendment for example has been left out of the fundamental cutoff. Congress can also grant rights through legislation. One example of this is the Jones Cct in 1917 granting citizenship to the people of Puerto Rico. This gives congress the power to grant rights to the unincorporated territories, which they seldom choose to do. The US has since gained several other unincorporated territories since the Insular Cases, American Samoa, the U.S. Virgin Islands and the Northern Mariana Islands.
In November 2025, Quentin Veneno requested a writ of certiorari to hear his case: Veneno v. United States in the Supreme Court. Veneno, an Apache member, was convicted of domestic assault by the U.S. government on Indian tribal land. Veneno challenged congress’ plenary power; its authority in the constitution to criminalize conduct in Indian Country. His writ was subsequently denied. Interestingly, there were two dissenters: Neil Gorsuch and Clarence Thomas. In Gorsuch’s dissent, joined by Thomas, he touched on the issue of the territories. This was because a precedent case for congressional Indian conduct cited the Insular Cases as precedent. Along with this standard procedure, he slipped in a bombshell for the Insular Cases: “(The Territories) clause… does not endow the Federal Government with plenary power even within the territories themselves.” This was the first time a justice questioned the plenary power doctrine within territories. Gorsuch also cited his concurring opinion in United States v. Valleo Madero. He went after the Insular Cases directly “ The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.” He went on to use sharp language rebuking the racist rhetoric of the time. Along with quoting passages from Federalist 45 “that the people were made for kings, not kings for the people.” Across the aisle, Justice Sotomayor viewed the Insular Cases in much the same way. Notably born from Puerto Rican parents, Justice Sotomayor has been a passionate crusader against the Insular Cases.
The United States Constitution is a document that has borne wars, liberty and the oldest continuous democratic system. Judicial incompetence spawned a racist antithesis of the constitution. Born from the culture of racial superiority at the time, the Insular Cases have been a blemish on what the U.S. represents in the popular imagination. Recently, justices have been susceptible to change. With fiery language from Justice Gorsuch, the path for the ever elusive 5 votes to end this precedent seems within the Judiciary's fingertips. As the echoes of America's imperial century become reality in Venezuela and Greenland. Will the Insular cases' precedent chase those echos into the twenty-first century?
