The Past Must Not Be the Present: Legislative Supremacy and Judicial Duty in the Insular Cases

In the aftermath of the Spanish-American War and the subsequent Treaty of Paris (1898), the United States acquired the territories on Guam, the Philippines and Puerto Rico. In the process of creating new governments and regulating trade, Congressional policies led to legal challenges over the application of habeas corpus in Cuba, the universality of duties and tariffs between the United States and the territories, and, the extension of trial by jury to the territories. In what would become known as the Insular Cases, the Supreme Court legitimized a policy of imperialism as it allowed Congress the plenary power to treat the territories, and their inhabitants, as being “foreign in a domestic sense.” In this legal limbo, Congress possessed the plenary power to create policies for the territories while, at the same time, it denied the territories Constitutional rights and protections.

It is my argument that the Insular Cases controversy represents a debate over what role the United States would play in foreign affairs at the beginning of the 20^th century. This debate centers on romantic narratives of the United State’s duty to itself and the rest of the world. According to Hayden White, romantic narratives employ a good versus evil or redemption versus sin plotline to understand the development of a conflict. In relation to the Insular Cases, this romantic style of narrative justifies the acquisition and governance of the territories while also providing a means to critique their acquisition and rule. When dissenting in the Insular Cases, Justice Harlan argues that the constitutional silence from which the plurality and then majority legitimize Congressional power to deny the inhabitants of the acquired territories creates a crisis in republican government as it undermines the constitution of the United States. To emphasize this crisis in republicanism, Justice Harlan employs rhetorical echoes that compares the Insular Cases to three of the most important debates during the American Revolution and the constitutional ratification debates: the problem of imperium in imperio, the problem of legislative supremacy, and the denial of fundamental right of trial by jury, especially trial by jury. Though unsuccessful, Justice Harlan’s critique in his Insular dissents provides scholars with a means to critique imperialism through a Constitutional framework, allowing for the development of an anti-imperialistic legal and political rhetoric.