Right Patient, Wrong Diagnosis: How Justice Gorsuch Mistakes the 'Rotten Foundation' of the Insular Cases and Why it Matters

Abstract

On April 21, 2022, Justice Gorsuch issued a concurring opinion in United States v. Vaello Madero strongly criticizing the Insular Cases that have governed the application of the U.S. Constitution to overseas U.S. territories for more than a century. Justice Gorsuch passionately argues for overturning the Insular Cases as a moral imperative.

Justice Gorsuch’s frustration with the Insular Cases is commendable and, presumably, shared by many. His specific diagnosis of where the Insular Cases went wrong, however, is fundamentally flawed. In this Essay, the author explains how Gorsuch both oversimplifies the holdings of the Insular Cases and overstates the role of stereotypes in driving those decisions. These facts matter. By misdiagnosing the problem, Justice Gorsuch risks prolonging the very constitutional uncertainty that he rightfully finds so intolerable.

Keywords: Constitution, Insular Cases, Bill of Rights, Territorial Incorporation Doctrine, Constitutional Avoidance, Judicial Minimalism