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The Insular Cases and the Emergence of American Empire
When the United States took control of Cuba, Puerto Rico, the Philippines, and Guam following the Spanish-American War, it was unclear to what degree these islands were actually part of the U.S. and, in particular, whether the Constitution applied fully, or even in part, to their citizens. By looking closely at what became known as the Insular Cases, Bartholomew Sparrow reveals how America resolved to govern these territories.
Sparrow follows the Insular Cases from the controversial Downes v. Bidwell in 1901, which concerned tariffs on oranges shipped to New York from Puerto Rico and which introduced the distinction between incorporated and unincorporated territories, to Balzac v. Puerto Rico in 1922, in which the Court decided that Puerto Ricans, although officially U.S. citizens, could be denied trial by jury because Puerto Rico was "unincorporated." There were 35 Insular Cases in all, cases stretching across two decades, cases in which the Court ruled on matters as diverse as tariffs, double jeopardy, and the very meaning of U.S. citizenship as it applied to the inhabitants of the offshore territories. Through such decisions, as Sparrow shows, the Court treated the constitutional status of territorial inhabitants with great variability and decided that the persons of some territories were less equal than those of other territories.
Sparrow traces the fitful evolution of the Court's Incorporation Doctrine in the determination of which constitutional provisions applied to the new territories and its citizens. Providing a new look at the history and politics of U.S. expansion at the turn of the twentieth century, Sparrow's book also examines the effect the Court's decisions had on the creation of an American empire. It highlights crucial features surrounding the cases--the influence of racism on the justices, the need for naval stations to protect new international trade, and dramatic changes in tariff policy. It also tells how the Court sanctioned the emergence of two kinds of American empire: formal territories whose inhabitants could be U.S. citizens but still be denied full political rights, and an informal empire based on trade, cooperative foreign governments, and U.S. military bases rather than on territorial acquisitions.
The Insular Cases and the Emergence of American Empire reveals how the United States handled its first major episode of globalization and how the Supreme Court in these cases, crucially redirected the course of American history.
Sparrow follows the Insular Cases from the controversial Downes v. Bidwell in 1901, which concerned tariffs on oranges shipped to New York from Puerto Rico and which introduced the distinction between incorporated and unincorporated territories, to Balzac v. Puerto Rico in 1922, in which the Court decided that Puerto Ricans, although officially U.S. citizens, could be denied trial by jury because Puerto Rico was "unincorporated." There were 35 Insular Cases in all, cases stretching across two decades, cases in which the Court ruled on matters as diverse as tariffs, double jeopardy, and the very meaning of U.S. citizenship as it applied to the inhabitants of the offshore territories. Through such decisions, as Sparrow shows, the Court treated the constitutional status of territorial inhabitants with great variability and decided that the persons of some territories were less equal than those of other territories.
Sparrow traces the fitful evolution of the Court's Incorporation Doctrine in the determination of which constitutional provisions applied to the new territories and its citizens. Providing a new look at the history and politics of U.S. expansion at the turn of the twentieth century, Sparrow's book also examines the effect the Court's decisions had on the creation of an American empire. It highlights crucial features surrounding the cases--the influence of racism on the justices, the need for naval stations to protect new international trade, and dramatic changes in tariff policy. It also tells how the Court sanctioned the emergence of two kinds of American empire: formal territories whose inhabitants could be U.S. citizens but still be denied full political rights, and an informal empire based on trade, cooperative foreign governments, and U.S. military bases rather than on territorial acquisitions.
The Insular Cases and the Emergence of American Empire reveals how the United States handled its first major episode of globalization and how the Supreme Court in these cases, crucially redirected the course of American history.
- GenresHistory
312 pages, Paperback
First published January 1, 2006
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Displaying 1 - 4 of 4 reviews
January 17, 2012
You might think that reading about a series of Supreme Court cases ostensibly dealing with tariffs and the newly acquired colonies of Puerto Rico, Guam, Cuba & the Philippines would be boring...well, it's not the most riveting reading, but it is well written, well researched and very thoughtful. I actually enjoyed reading this for my research, unlike a lot of books written about the Constitution, law, and the treatment of various indigenous people.
If this is your area (post-colonial studies, American empire, Constitutional law and citizenship), then this is an invaluable resource.
If this is your area (post-colonial studies, American empire, Constitutional law and citizenship), then this is an invaluable resource.
July 16, 2019
A thoroughly disappointing look at some of the strangest cases ever to come to the U.S. Supreme Court. The "Insular Cases," begun in 1901 and continuing until 1922, dealt with the seeming imponderable question of how the United States Constitution, coming out of a republic founded on an anti-colonial revolt, applied to a colonial empire acquired from Spain (as well as from the Hawaiian monarchy and the German and Danish governments (who sold the US American Samoa at the same time)).
The only real clause in the Constitution that the Supreme Court could hang its hat on in the Insular Cases was the "territorial clause" in Article IV, which the Supreme Court last wrestled with in Dred Scott v. Sanford and the run-up to the Civil War. In the antebellum period, the Court had upheld pretty expansive congressional authority over the colonies. Chief Justice Marshall in American Insurance Company v. Canter (1819) said that any ports acquired by treaty would be treated as foreign "until they are established as domestic by an Act of Congress." In Fleming v. Page (1850), Chief Justice Roger Taney said that cargo shipped from Mexico could be treated as imports by the Polk administration, even though the US occupied the land at the time. In Murphy v. Ramsey (1872) the Court said that the government could disenfranchise people in Utah Territory for polygamy, despite the 15th amendment.
Thus in the first main case, Downes v. Bidwell (1901), a divided court said that Congress could impose tariffs on goods imported from "Porto Rico," despite the annexation of the islands by treaty. Henry Billings Brown, a Harvard Law- educated Detroit US District judge steeped in admiralty law, gave the majority opinion, explaining that the Dred Scott decision about Constitution applying in the territories was dicta and against the vast majority of Supreme Court decisions. Brown said artificial rights, like the right to a jury, had no application unless Congress extended them, but "certain principles of natural justice inherent in the Anglo-Saxon character" like freedom of worship and speech, personal liberty and property, due process, immunities from searches and seizures, and "other immunities" did naturally extend. Justice Edward White wrote a concurring decision, joined by three other justices, that said that only if a territory was "incorporated" by treaty did any rights extend, and the 1899 Treaty of Paris did not "incorporate" Porto Rico. (He cribbed from Abbot Lawrence Lowell's Harvard Law Review article about the upcoming cases that suggested this previously unknown distinction). Chief Justice Fuller joined with three dissenters to say that all of the Constitution ex proprio vigor followed the flag, and claimed that this was a clear corruption of the republic.
Over the next few years, the court was often split 5-4, and Henry Billings Brown was the swing. In DeLima v. Bidwell, Brown sided with the previously dissenting four justices, and said that since Porto Rico was transferred by treaty first, it could not impose tariffs before Congress decided to do so. He also decided that the territories were effectively part of the US sometimes (like for coasting regulations in Huus v. New York Steamship Company). In other cases, like Gonzalez v. Williams (1904), the Court decided that Porto Ricans were not "aliens" under the immigration laws, and so couldn't be stopped at port. Slowly, however, the Court adopted White's "incorporation" doctrine, and left the islanders with very little in way of rights that could not be taken over by Congress.
Unfortunately, the author of this book seems to have little understanding about whether the Court ruled based on statutory or constitutional clauses, on why certain distinctions about territories were important or not, and how the Insular Cases fit into the broad stretch of American constitutional law. The book thus took a fascinating story, covered it in minutiae, and failed to pull a coherent narrative out of it. There probably is a better version out there.
The only real clause in the Constitution that the Supreme Court could hang its hat on in the Insular Cases was the "territorial clause" in Article IV, which the Supreme Court last wrestled with in Dred Scott v. Sanford and the run-up to the Civil War. In the antebellum period, the Court had upheld pretty expansive congressional authority over the colonies. Chief Justice Marshall in American Insurance Company v. Canter (1819) said that any ports acquired by treaty would be treated as foreign "until they are established as domestic by an Act of Congress." In Fleming v. Page (1850), Chief Justice Roger Taney said that cargo shipped from Mexico could be treated as imports by the Polk administration, even though the US occupied the land at the time. In Murphy v. Ramsey (1872) the Court said that the government could disenfranchise people in Utah Territory for polygamy, despite the 15th amendment.
Thus in the first main case, Downes v. Bidwell (1901), a divided court said that Congress could impose tariffs on goods imported from "Porto Rico," despite the annexation of the islands by treaty. Henry Billings Brown, a Harvard Law- educated Detroit US District judge steeped in admiralty law, gave the majority opinion, explaining that the Dred Scott decision about Constitution applying in the territories was dicta and against the vast majority of Supreme Court decisions. Brown said artificial rights, like the right to a jury, had no application unless Congress extended them, but "certain principles of natural justice inherent in the Anglo-Saxon character" like freedom of worship and speech, personal liberty and property, due process, immunities from searches and seizures, and "other immunities" did naturally extend. Justice Edward White wrote a concurring decision, joined by three other justices, that said that only if a territory was "incorporated" by treaty did any rights extend, and the 1899 Treaty of Paris did not "incorporate" Porto Rico. (He cribbed from Abbot Lawrence Lowell's Harvard Law Review article about the upcoming cases that suggested this previously unknown distinction). Chief Justice Fuller joined with three dissenters to say that all of the Constitution ex proprio vigor followed the flag, and claimed that this was a clear corruption of the republic.
Over the next few years, the court was often split 5-4, and Henry Billings Brown was the swing. In DeLima v. Bidwell, Brown sided with the previously dissenting four justices, and said that since Porto Rico was transferred by treaty first, it could not impose tariffs before Congress decided to do so. He also decided that the territories were effectively part of the US sometimes (like for coasting regulations in Huus v. New York Steamship Company). In other cases, like Gonzalez v. Williams (1904), the Court decided that Porto Ricans were not "aliens" under the immigration laws, and so couldn't be stopped at port. Slowly, however, the Court adopted White's "incorporation" doctrine, and left the islanders with very little in way of rights that could not be taken over by Congress.
Unfortunately, the author of this book seems to have little understanding about whether the Court ruled based on statutory or constitutional clauses, on why certain distinctions about territories were important or not, and how the Insular Cases fit into the broad stretch of American constitutional law. The book thus took a fascinating story, covered it in minutiae, and failed to pull a coherent narrative out of it. There probably is a better version out there.
January 25, 2013
Sparrow wrote an excellent book on the Insular Cases. His writing aptly presents the historical, social, and intellectual background behind the decisions. He also shows why the doctrines adopted by the cases remain relevant in the 21st Century. After all, the Insular Cases sanctioned the discrimination and disenfranchisement to which the U.S. citizens of Puerto Rico are subjected to on an everyday basis.
October 5, 2016
Sparrow does a fascinating job of summing up and explaining a varity of cases that make-up the Insular Cases, describing how US Supreme Court judges perspective and the timing all gave in to the rise of US imperialism.
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