Page 3 - Suffolk University Law Review
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SUFFOLK UNIVERSITY LA W REVIEW [Vol. L:587
unspoken premise tbat the entities created to govem the territories, populated
by westward migration from the original states, were temporary. The
foundational principies enshrined in the Declaration of Independence would
protect the populations of these territories once they acquired statehood-their
inevitable destiny. Puerto Rico v. Sanchez Valle3 marks a tuming point in the
nineteenth and early twentieth-century case law, and signals an evolution
toward realizing foundational democratic principies in goveming the territories.
The U.S. Supreme Court facilitated the governance of noncontiguous
territories (Hawaii, Alaska, the Philippines, Puerto Rico, Guam, the Virgin
Islands, and American Samoa) acquired by annexation, conquest, or purchase
during the late nineteenth and early twentieth centuries through the doctrine of
nonincorporation, developed in the so-called Insular Cases.4 This doctrine
establishes that, except for those provisions that protect fundamental rights, the
provisions of the U.S. Constitution do not apply ex proprio vigore to
unincorporated territories. Hawaii and Alaska featured small indigenous
minorities, but the bulk of their inhabitants hailed from the continental United
States. In contrast, Puerto Rico, Guam, the Virgin Islands, and American
Samoa boast larger non-American populations, as well as their own unique
culture and national identity. The nonincorporation doctrine gives Congress
constitutional flexibility when governing noncontiguous territories, and leaves
the duration of territorial status indefinitely subject to the autocratic plenary
powers of Congress. This power is limited only by the fundamental rights that
belong to the inhabitants of a territory, such as the right to freedom of speech
With respect to Puerto Rico, this power arises out of Article IX of the Treaty of Paris of 1898. See Treaty of
Peace Berween the United States of America and tbe K.ingdom ofSpain, Spain-U.S., art. IX, Dec. 10, 1898, 30
Stat. 1754 (ceding Spanish territories to Uoited States). Although the argument presented in this Anide
considers all of rhese sources, the analysis is primarily grounded in the constitutional provisión. It should be
noted, however, that sources other than Article IV, Section 3, Clause 2 may be used to justify the invasive use
of these powers to protect national security. Severa! Supreme Court opinions devcloped the plenary powers
doctrine during the nineteenth century. See, e.g., First Nat'l Bank v. Yankton, 101 U.S. 129, 133 (1879)
(noting supreme authority ofCongress to govem territories); United States v. Gratiot, 39 U.S. 526, 538 (1840)
(determining Congress has sote discretion to dispose of territories); Am. Ins. Co., 26 U.S. (l Pet.) at 542
(questioning whether Congress's goveming power stems from Constitution, or ability to acquire territory).
"Such a power is an incident of sovereignty, and continues unril granted away. Congress may not only
abroga te laws of the territorial legislatures, but it may itself legislate directly for the local government. 1t may
make a void act ofthe territorial legislature valid, anda valid act void" Yankton, 101 U.S. at 133.
3. 136 S. Ct. 1863 (2016).
4. See generally Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United States, 195 U.S. 138 (1904);
Dooley v. United States, 183 U.S. 151 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Dooley v. United
States, 182 U.S. 222 (1901); Goetze v. United States, 182 U.S. 221 (1901); De Lima, 182 U.S. l (1901). Toe
United States also acquired the Panama Canal Zone and Guantanamo Bay in Cuba by using the doctrine. See
Hon. Gustavo A. Gelpí, An Experiment in US TerritorialGovernance: The District of the Canal Zone and Its
Federal Court, FED. LAW., June 2016, at 40, 41; see a/so Boumediene v. Bush, 553 U.S. 723, 757-58, 764
(2008) (discussing Insular Cases in context of Guantanamo Bay). President Carter devolved the canal to
Panama, but U.S. armed forces continue to occupy Guantanamo Bay. See Gelpí, supra, at 43; see a/so
Boumediene, 553 U.S. at 754-55 (noting United States retains "complete jurisdiction and control over ... base"
on Guantanamo Bay).
unspoken premise tbat the entities created to govem the territories, populated
by westward migration from the original states, were temporary. The
foundational principies enshrined in the Declaration of Independence would
protect the populations of these territories once they acquired statehood-their
inevitable destiny. Puerto Rico v. Sanchez Valle3 marks a tuming point in the
nineteenth and early twentieth-century case law, and signals an evolution
toward realizing foundational democratic principies in goveming the territories.
The U.S. Supreme Court facilitated the governance of noncontiguous
territories (Hawaii, Alaska, the Philippines, Puerto Rico, Guam, the Virgin
Islands, and American Samoa) acquired by annexation, conquest, or purchase
during the late nineteenth and early twentieth centuries through the doctrine of
nonincorporation, developed in the so-called Insular Cases.4 This doctrine
establishes that, except for those provisions that protect fundamental rights, the
provisions of the U.S. Constitution do not apply ex proprio vigore to
unincorporated territories. Hawaii and Alaska featured small indigenous
minorities, but the bulk of their inhabitants hailed from the continental United
States. In contrast, Puerto Rico, Guam, the Virgin Islands, and American
Samoa boast larger non-American populations, as well as their own unique
culture and national identity. The nonincorporation doctrine gives Congress
constitutional flexibility when governing noncontiguous territories, and leaves
the duration of territorial status indefinitely subject to the autocratic plenary
powers of Congress. This power is limited only by the fundamental rights that
belong to the inhabitants of a territory, such as the right to freedom of speech
With respect to Puerto Rico, this power arises out of Article IX of the Treaty of Paris of 1898. See Treaty of
Peace Berween the United States of America and tbe K.ingdom ofSpain, Spain-U.S., art. IX, Dec. 10, 1898, 30
Stat. 1754 (ceding Spanish territories to Uoited States). Although the argument presented in this Anide
considers all of rhese sources, the analysis is primarily grounded in the constitutional provisión. It should be
noted, however, that sources other than Article IV, Section 3, Clause 2 may be used to justify the invasive use
of these powers to protect national security. Severa! Supreme Court opinions devcloped the plenary powers
doctrine during the nineteenth century. See, e.g., First Nat'l Bank v. Yankton, 101 U.S. 129, 133 (1879)
(noting supreme authority ofCongress to govem territories); United States v. Gratiot, 39 U.S. 526, 538 (1840)
(determining Congress has sote discretion to dispose of territories); Am. Ins. Co., 26 U.S. (l Pet.) at 542
(questioning whether Congress's goveming power stems from Constitution, or ability to acquire territory).
"Such a power is an incident of sovereignty, and continues unril granted away. Congress may not only
abroga te laws of the territorial legislatures, but it may itself legislate directly for the local government. 1t may
make a void act ofthe territorial legislature valid, anda valid act void" Yankton, 101 U.S. at 133.
3. 136 S. Ct. 1863 (2016).
4. See generally Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United States, 195 U.S. 138 (1904);
Dooley v. United States, 183 U.S. 151 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Dooley v. United
States, 182 U.S. 222 (1901); Goetze v. United States, 182 U.S. 221 (1901); De Lima, 182 U.S. l (1901). Toe
United States also acquired the Panama Canal Zone and Guantanamo Bay in Cuba by using the doctrine. See
Hon. Gustavo A. Gelpí, An Experiment in US TerritorialGovernance: The District of the Canal Zone and Its
Federal Court, FED. LAW., June 2016, at 40, 41; see a/so Boumediene v. Bush, 553 U.S. 723, 757-58, 764
(2008) (discussing Insular Cases in context of Guantanamo Bay). President Carter devolved the canal to
Panama, but U.S. armed forces continue to occupy Guantanamo Bay. See Gelpí, supra, at 43; see a/so
Boumediene, 553 U.S. at 754-55 (noting United States retains "complete jurisdiction and control over ... base"
on Guantanamo Bay).
