The Originalist Case Against the Insular Cases

San Diego Legal Studies Paper No. 25-013

77 Florida Law Review (forthcoming 2025)

78 Pages Posted: 27 Mar 2025 Last revised: 12 Apr 2025

See all articles by Michael D. Ramsey

Michael D. Ramsey

University of San Diego School of Law

Date Written: March 26, 2025

Abstract

Concurring in United States v. Vaello Madero, Justice Neil Gorsuch argued that the Insular Cases are contrary to the Constitution’s original meaning and should be overruled. The Supreme Court’s decisions in the Insular Cases, which created a second-class constitutional status for U.S. overseas territories, have also been criticized by leading originalist scholars such as Professors Gary Lawson and Michael Paulsen. However, there is no fully developed scholarly assessment of the Insular Cases from an originalist perspective; their inconsistency with an originalist approach is more assumed than proven. This Article fills that gap. Using the methodology of original public meaning, it considers the constitutional status of U.S. territories from the founding era through the early nineteenth century to the constitutionalization of U.S. citizenship in the Fourteenth Amendment.

Although the matter is somewhat more complicated than Justice Gorsuch’s concurrence may suggest, this Article finds no foundation in traditional originalist sources for the Insular Cases’ differential treatment of overseas territories. To the contrary, it concludes that U.S. territories were widely understood to be broadly encompassed by the Constitution without differentiation until an academic and judicial reassessment at the beginning of the twentieth century, impelled by U.S. acquisition of territories with substantial non-white populations, set the stage for the Court’s newly invented doctrine. This Article thus concludes that Justice Gorsuch’s assessment is correct and should carry weight with the Court’s originalist-oriented majority. Finally, this Article examines from an originalist perspective the implications for territorial government of overruling the Insular Cases, which it concludes would be significant but not substantially destabilizing.

Keywords: territories, constitutional law, insular cases, Puerto Rico, American Samoa, Guam, Virgin Islands, Northern Marianas Islands, incorporation, originalism

Suggested Citation

Ramsey, Michael D., The Originalist Case Against the Insular Cases (March 26, 2025). San Diego Legal Studies Paper No. 25-013, 77 Florida Law Review (forthcoming 2025), Available at SSRN: https://ssrn.com/abstract=5195246 or http://dx.doi.org/10.2139/ssrn.5195246

Michael D. Ramsey (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-4145 (Phone)
619-260-2218 (Fax)

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