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The Empire Forgotten: The Application of the Bill of Rights to U.S. Territories

42 Pages Posted: 21 Nov 2005  

Alan Mygatt-Tauber

affiliation not provided to SSRN

Date Written: November 17, 2005

Abstract

"The Empire Forgotten: The Application of the Bill of Rights to U.S. Territories" examines the history of the Insular Cases, a series of cases decided by the United States Supreme Court at the turn of the twentieth century, dealing with the extension of the Bill of Rights to recently acquired territories of the United States. It begins with an examination of the history of territorial acquisition by the United States, starting with the Northwest Territories and continuing up through the Treaty of Paris at the end of the Spanish-American War.

Through this historical examination, the paper traces the various laws and treaties made by Congress, and how the Treaty of Paris, unlike prior treaties, lacked a provision guaranteeing rights to citizens of the newly acquired territories. It was this lack that lead to the decisions by the United States Supreme Court, holding that the full Bill of Rights, specifically the right to a jury trial, did not apply to these newly acquired "insular" territories.

Part III of the paper begins with an examination of the Court's decision in Dred Scott v. Sanford, the first application of the Bill of Rights to United States territory not yet a state. It notes that in that case, Chief Justice Taney held that the Bill of Rights, and specifically the right to a jury trial, applied in U.S. territories. It then moves on to an examination of the "Uniform Duties Clause Cases," in which the Court first addressed the Government's relationship to the insular territories, and ruled that they were not part of "the United States" as that term was used in the Constitution.

It then moves on to examine the Insular Cases themselves, and the creation of the Territorial Incorporation Doctrine, which holds that the Constitution only applies fully to territories that Congress has incorporated into the United States. Since Congress has not incorporated the insular territories, the Court held that the right to a jury trial did not apply. It traces the evolution of the Territorial Incorporation Doctrine from its first articulation in Justice White's concurring opinion in Downes v. Bidwell through its eventual adoption by the full Court in Balzac v. Porto Rico (sic).

The paper then examines the distinction between procedural and fundamental rights, only the latter of which have been incorporated. It notes that the Court held that the right to a jury trial is procedural, rather than fundamental, and therefore citizens of the insular territories could not claim this right. The paper moves on to a discussion of the racist language and assumptions underlying the Territorial Incorporation Doctrine before moving on to an examination of several solutions to the problem of this unequal application of the Bill of Rights.

Four possible solutions are suggested, and the benefits and detriments of each are explored before the paper finally concludes that the best action to solve for this unequal application of the Bill of Rights is for Congress to fully incorporate the Insular Territories.

Keywords: extraterritorial, constitution, territories, Insular Cases, jury trial, Territorial Incorporation Doctrine, incorporation, unincorporated

Suggested Citation

Mygatt-Tauber, Alan, The Empire Forgotten: The Application of the Bill of Rights to U.S. Territories (November 17, 2005). Available at SSRN: https://ssrn.com/abstract=850284 or http://dx.doi.org/10.2139/ssrn.850284

Alan Mygatt-Tauber (Contact Author)

affiliation not provided to SSRN

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