Insular Cases

Totally possible here.

We should also note, um, as a matter of history, that this year, 2026, marks the 125th anniversary of what is known as the Insular Cases.

These are a set of appalling, wildly racist Supreme Court decisions that held that people in the US territories are not entitled to the same constitutional rights as those individuals living in the states.

So the Insular Cases have never been overruled.

They are a major obstacle to democracy, self-determination, and constitutional rights in the territories.

If you want to learn more, I recommend the fantastic work of Christina Ponsa-Kraus at Columbia Law School, including a 2022 article in the Yale Law Journal called The Insular Cases Run Amok Against Constitutional Exceptionalism in the Territories.

Uh, we should also note that we at Strict Scrutiny are not alone in our disgust for the Insular Cases.

No less than friend of the pod, Neil Gorsuch, has declared that the Insular Cases are, quote, "long overdue for a reckoning."

They basically said, well, the treaty says citizenship, quote, in the United States, not citizenship of the United States.

And that was all they had, plus the insular cases, to say that they wouldn't follow through on those treaty obligations.

And it really marked a shift, this question of citizenship and territories acquired after 1898. and those that existed beforehand.

The United States has had territories going all the way back to the Constitution itself, when the Constitution was drafted and ratified.

The federal government basically made the decision, we want to have full sovereignty over places like the Virgin Islands, Puerto Rico, and Guam.

But we don't want those people to have any rights other than those that we're willing to give them.

And so that really was the kind of break following 1898, these insular cases, and arguably remains today.

These deeply ingrained racial considerations and racisms.

Now it's a commonwealth with its own government that has no voice in the U.S. Congress or presidential elections and no control over its own defense or environmental policy.

The Philippines were treated similarly to Puerto Rico in a series of cases between 1901 and 1904 collectively called the Insular Cases.

But Hawaii was treated differently because it had a sizable population of American settlers who happened to be white.

Ergo, it became a traditional territory with a path to statehood because white people and also pineapples.

The Supreme Court has weighed in on both, and one of them is a mess.

But then we have a wonderful conversation for you on the insular cases, and after Trump v. Barbara, the birthright citizenship case, where birthright citizenship stands in a special little case coming out of Alaska.

To join us for that conversation is Chief Judge of the Sixth Circuit and number one advisory opinion judicial crush, Judge Jeff Sutton, and Neil Weare, who is the co-director of Right to Democracy.

He was, uh, raised in Guam, and by the way, David, fun fact, he ran in the 2004 Olympics for Guam, the 1500-meter dash.

There are other emergency applications pending at the Supreme Court, including the mail ballot executive order, which is back at the Supreme Court.

The Trump administration has asked them to weigh back in.

So we are waiting for that, and in the meantime, you've got to stick around for our conversation with Chief Judge Jeff Sutton and Olympian Neal Weier [laughs] about the Insular Cases.

Uh, let's start with why Judge Sutton thinks the Northwest Ordinance should be in the Mount Rushmore of American law, along with the Declaration of Independence, the Articles of Confederation, and the U.S. Constitution.