American Empire

Social Darwinism and the Insular Cases

Justin Roberts

Abstract

At the height of the age of imperialism, the U.S. joined other global powers by acquiring colonial territories, starting with those gained in the wake of the Spanish-American War. In these newly gained lands, issues relating to their methods of governance and their place in the American constitutional system quickly arose, culminating in several Supreme Court battles. The resulting Insular Cases laid the groundwork for governance and individual rights in the US territories, remaining good law to this day. However, during the Gilded Age and Progressive Era in America—the period in which these cases were decided—Social Darwinist thought pervaded American society. These racist beliefs spread throughout the U.S., using evolutionary science to justify and defend socioeconomic inequalities. Thus, the Supreme Court justices, as products of their society, were heavily influenced by these ideas, guiding their rationale in the Insular Cases. The decisions from the early 20th century continue to create legal problems for those living in the territories to this day, resulting in many dire consequences relating to civil rights, criminal justice, and public health.

Introduction

“Give me liberty or give me death!”1 These were the words of Patrick Henry, exclaimed on the steps of St. John’s Church in Richmond, Virginia, on March 23, 1775.2 Henry, a skilled orator and politician, espoused the revolutionary fervor that gripped many of the American colonists’ minds.3 This sentiment culminated in the Declaration of Independence, issued on July 4th, 1776.4 It proclaimed that “all men are created equal” and “are endowed... with certain unalienable rights... [and] among these are Life, Liberty and the pursuit of Happiness.”5 Thus, these “unalienable rights” have become enshrined in the American governmental system, taking on a foundational form in American ideals, codified into law by the Constitution. The US Constitution explicitly states that “secur[ing] the Blessings of Liberty to ourselves and our Posterity”6 is one of its primary goals. The Constitution sought to create a government that could safeguard and uphold these rights as a matter of guarantee, being the supreme law of the land in the United States of America. However, a racially intolerant and imperialist mindset led the Supreme Court to decide that the inhabitants of American colonial holdings, gained after the Spanish-American War, were not fit to be granted the blessings of life and liberty afforded by the Constitution;7 They were to be governed by an unaccountable Congress—their most sacred rights as Americans granted or destroyed by the whims of a faroff legislature.8

The Spanish-American War

Beginning in February of 1895, Cubans, fueled by nationalist sentiment, revolted against their Spanish overlords.9 A conflict such as this so close to home was bound to garner much attention from the United States. Soon, atrocities from the revolt became the forefront of the American consciousness due to the reporting of newspapers.10 The Spanish hoped to bring a swift end to the rebellion in order to stave off the possibility of US intervention, especially in the face of mounting public pressure for US governmental action.11 Thenpresident William McKinley was staunchly opposed to any intervention in Cuba’s war for independence; however, when the U.S.S. Maine blew up in Havana harbor, “the American public was infected with war fever,” and McKinley could do little to oppose the mass outcry.12 The United States formally declared war on Spain on April 21st , 1898, under the slogan “Remember the Maine, to hell with Spain!”13 Despite immense public confidence,14 Spanish higher-ups and military personnel were keenly aware that they could not win a war against the Americans. Still, they persisted in order to defend the last remnants of the Spanish Empire and Spanish honor.15 The American forces did exceedingly well against the Spanish by fighting on two fronts: one to the South in Cuba and Puerto Rico and one to the West in Guam and the Philippines.16 After a series of catastrophic defeats, the Spanish sued for peace. In the resulting Treaty of Paris, signed on

December 10th, 1898, the United States gained Guam, Puerto Rico, and the Philippines, and Cuba became an American protectorate.17 The short timeframe of the war and American territorial gains led Secretary of State John Hay to describe the Spanish-American War as “A splendid little war.”18 America was now an empire, a characteristic of all major Western powers of the era. Yet, questions remained as to the nature of governance in these new territories, resulting in significant constitutional controversies falling to the Supreme Court to resolve.

Social Darwinism and “The White Man’s Burden”

Before examining the legal proceedings involving these recently acquired territories, it is essential that we first understand the societal context in which these decisions were made so that we may better understand the court's thinking and rationale. In 1859, Charles Darwin published On the Origin of Species, shifting people’s views of humanity’s position in the natural world.19 Darwin’s work explained that natural selection was the driving force behind evolution, providing evidence from his meticulous research of finches in the Galapagos Islands.20 His work proved to be of great interest not only to scientific circles but also to the public at large.21 As Darwin’s work began to permeate society, many began to apply his theories of natural selection and evolution to socioeconomic conditions in the form of what became known as Social Darwinism. These Social Darwinists believed it was irrational to try to direct natural processes. Because they felt social ills, such as poverty, resulted from the social “unfitness” of the downtrodden, they saw it as unconstitutionally unreasonable for the government to intervene in socioeconomic inequalities with regulations and laws. Additionally, according to researchers at Rutgers University, “Social Darwinists believe that humans, like plants and animals, are engaged in a ruthless genetic competition such that the ascendancy of ‘the fittest’ benefits the whole species... to justify laissez-faire capitalism, wealthy White Anglo-Saxon Protestant (WASP) men were deemed biologicallysuperior to the lower classes, who were blamed for a culture of dependency.”22 Based on their metaanalysis of American political opinions, they found that those with a Social Darwinist perspective were vastly more likely to “defend a system of racial inequalities... [and] patriarchy.”23 This ideology pervaded American political thought throughout the Gilded Age and Progressive Era and made any notion of expanding civil rights of minorities untenable as these minorities were seen as biologically inferior and predestined to the subserviency of white men. As much as any justice may claim to be completely objective, one’s perspective and society will skew what they believe to be empirical fact. As such, this Social Darwinist ideology would have poisoned the Supreme Court’s views of this period. This ideology was even further cemented into American society by “scientists” whose racist views seeped into empirical reality, furthering the idea of racial inferiority in particular. For example, infamous anthropologist Samuel George Morton built off the pseudoscience of

phrenology in examining human skulls to present “a quantitative argument not only for racial hierarchies of intelligence but also for the separate origins of races, elevating racial differences among humans to differences among species.”24 So-called race science was prevalent in anthropology’s early days, providing a scientific backbone for racist views and policies. This development in scientific thought led many to believe that the goals of racially inclusive regulations, like the Civil War Amendments, were against the will of nature and, thus, should be abandoned. This type of culture would especially be hostile to the widespread expansion of civil rights for those who weren’t white men. These beliefs were espoused in the Supreme Court of the United States. In his dissent in Moore v. Dempsey(1923), Justice McReynolds called African-Americans a “‘race of children.’”25 This case arose when African-American civil rights organizers were attacked by a white mob, resulting in the deaths of many Black and a few white men.26 This attack caused Frank Moore, a Black man, to be tried and convicted of murdering a member of the violent white mob; however, during the trial, an angry group of white Southerners surrounded the courthouse, and law enforcement had witnesses tortured before they testified.27 In his dissent, McReynolds claimed that the case “show[ed] no irregularity.”28 The racial animosity found in this dissent highlights Social Darwinist views of white supremacy. Thankfully, the court overturned Moore’s conviction, but the foul language used by the dissenting justices demonstrates the Social Darwinist ideology present on the court. This Social Darwinist thought gave way to the idea of the “White Man’s Burden.” Many ardent imperialists believed that it was the white man’s duty to civilize the “savage” peoples of the world through imperial rule.29 This term was coined by the British imperial poet Rudyard Kipling who wrote a poem of the same name in response to America’s conquest of the Philippines in the Spanish-American war.30 The idea that native peoples of nonwhite areas are savage or uncivilized is nearing the zenith of racial animosity. This further provided justification for imperial rule in an era where most global powers held imperial territories— such as Guam, Puerto Rico, and the Philippines in the U.S.—and guided many people’s world view during the Gilded Age and Progressive Era in America, including those sitting on the Supreme Court.

The Insular Cases

With the aforementioned societal context in mind, we will now discuss the notable court cases revolving around the American Empire. The Insular Cases are a set of about 35 cases decided between 1901 and 1922 that created the groundwork for governance in the American colonial holdings.31 One of the most important of these Insular Cases is Downes v. Bidwell (1901). The case arose from a controversy over congressionally imposed duties on imports from Puerto Rico—the Constitution mandates that “all Duties, Imposts and Excises... be uniform throughout the United States.”32 Writing for the five-justice majority, Justice Henry Billings Brown wrote that “[t]he Constitution was created by the people of the United States,

as a union of states, to be governed solely by representatives of the states[—i]n short, the Constitution deals with states, their people, and their representatives.”33 Using this logic as a template, the majority reasoned that the federal Constitution does not apply to American territories unless otherwise mandated by Congress.34 This remains the current status of the American territories to this day. With the court bound by stare decisis, the precedent set by Downes v. Bidwellmakes it improbable for residents of these territories to gain all the rights and responsibilities granted by the Constitution through the court system. They are residents of the United States but are not subject to the Constitution of the United States. With a thorough reading of Brown’s opinion, it becomes evident that a Social Darwinist mindset heavily influenced his reasoning. He wrote that the territories were “inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible.”35 The Justice feared that if the Constitution applied to the territories automatically, “[their inhabitants’] children thereafter born, whether savage or civilized... [would be] entitled to all the rights, privileges and immunities of citizens.”36 The racist substance of his opinion resembles the Social Darwinist view that some races are somehow less “fit” than whites and should, therefore, be inferior on the social hierarchy. The majority believed territorial inhabitants were unable to understand “Anglo-Saxon principles” because these “savage” people differ from whites in “modes of thought.” However, he also stated that this condition should only be “for a time”—presumably until the Americans could civilize the savages, as per the “White Man’s Burden.” Yet, nearly 120 years after the Court handed down Downes, the territories’ status constitutionally remains unchanged. Now that we’ve discussed the territories’ constitutional status, it is necessary to discuss the case that became the territories’ legalstatus framework: Balzac v. Porto Rico (1922). The case arose when Jesus Balzac, an editor of a local paper in Puerto Rico, was charged with and convicted of “criminal libel for publishing a series of articles critical of the territorial governor.”37 Balzac argued that his actions were protected under the 1st Amendment and that he had a 6th Amendment right to a trial by jury, which he was denied.38 In his opinion, Chief Justice William Howard Taft stated “that neither the Philippines nor Porto Rico [sic] was territory which had been incorporated in the Union or become part of the United States,” and, therefore, the Constitution remained inoperative, as per Downes . 39 This is the first case in which the Supreme Court formally adopted the incorporated/unincorporated system—incorporated territories were ones in which the full force of the Constitution was in effect. The majority further affirmed the disparaging doctrine adopted in Downes, leaving the territories’ fate in the hands of congressional legislation—in a state of constitutional limbo until Congress decided to incorporate them into the U.S. The cases of Downes v. Bidwell (1901) and Balzac v. Porto Rico (1922) have had long-lasting effects. Of the five major and habited US territories—Guam, Puerto Rico, the Northern Mariana Islands, the U.S. Virgin Island, and American Samoa—all are unincorporated.40 The Constitution only applies to these islands in so far as Congress has

legislated. The long-abandoned idea of the “White Man’s Burden” continues to influence American governance, infecting our legal systems further with the plagues of institutionalized racism and discrimination.

Contemporary Consequences

As can probably be surmised, the Insular Caseshave led to many difficulties for modern-day American territories. While these consequences may be numerous, this article will only cover three major contemporary issues: citizenship in American Samoa, rights of detained persons in Guantanamo Bay, and problems relating to COVID-19 and relief efforts.

I. American Samoan Citizenship

The 14th Amendment states that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”41 Yet, as discussed above, the Constitution does not apply to the American island territories. However, by a congressional act, all those born in the United States’ inhabited area, including the territories, are American citizens—with one major exception: American Samoa.42 All those born in American Samoa are given the odd status of “non-citizen nationals.”43 Under this distinction, American Samoans are freely able to live and travel throughout the United States; however, they cannot vote; serve on juries; work in many public sector jobs, including running for Congress; petition the government for immigrant status on behalf of family members; and must navigate the cumbersome naturalization process to gain American citizenship—the same process as any immigrant born abroad would have to do, even though American Samoans were born in America.44 These facts are not only horrible on their own but are made worse by the fact that the American Samoan Army Recruiting Station ranked #1 in the recruitment of new service members for three consecutive years.45 American Samoans continuously fight and die for the United States, yet they are relegated to a second-class status as a matter of law due to their American national designation. The Insular Casesand inaction on the part of Congress deny American Samoans US citizenship to which they are justly entitled, and it is incumbent upon this nation to assure that no American—or anyone else—is given an inferior status to others.

II. Guantanamo Bay

Acquired by lease from the government of Cuba after the Spanish-American War, the United States has “‘ultimate sovereignty’” over the lands that hold the Guantanamo Bay Naval Base (GTMO) “‘[s]o long as the United States of America shall not abandon the area’” and continues to pay its rent, according to the legally binding agreements surrounding the land transfer.46 Currently used to hold “the worst of the worst,”47 according to former Press Secretary Ari Fleischer, GTMO confines those who the U.S. suspects of terrorism for an

indeterminant amount of time.48 While interred in GTMO, many detainees routinely face harsh interrogation and torture in an attempt to glean useful information for the United States’s War on Terror.49 Aside from the apparent humanitarian concern and moral depravity of such tactics, the U.S. has a poor track record in detaining “the worst of the worst” in the facility. For example, in 2002, “[o]f the 212 Afghans at the base, almost half were, in the assessments of the US forces, either entirely innocent, mere Taliban conscripts, or had been transferred to Guantánamo with no reason for doing so on file.”50 Not only do US forces use illegal and disgusting interrogation techniques on these prisoners to gain information but also many of the tortured detainees are “entirely innocent” or do not hold any intelligence of value—all while being held without habeas corpus rights, in general. While many criminal justice reform advocates may desire constitutional protections to extend to GTMO prisoners, the Insular Casesappear to create a roadblock to any meaningful path forward. In Rasul v. Bush (2004), the Supreme Court held that detainees at GTMO may petition federal courts for a writ of habeas corpus, thereby providing some legal recourse to be released from unlawfully prolonged detentions.51 However, while a win for the detainees, Justice Kennedy’s concurrence leaves the door open for catastrophe; according to the former justice, “Guantanamo Bay is in every practical respect a United States territory.”52 This sentence may seem mundane on its surface, but, in light of the Insular Cases, if Guantanamo Bay is considered a US territory, the Constitution and, therefore, its criminal justice protections do not apply, leaving these detainees confined by the will of US naval forces, of the President, and of Congress. As such, automatic constitutional protections for prisoners, like habeas corpus, are constrained by the Insular framework, laid out over a century ago.

III. COVID-19 Relief

Our long-standing history of relegating the US territories to the sidelines has had disastrous consequences for the islands, especially in light of the current pandemic. When Congress passed the CARES Act, it allocated $30 billion for assistance to state and local governments.53 Of this funding, only $55,070,127 went to all the US territories combined with the lion’s share going to Puerto Rico at $41,889,822.54 Although Puerto Rico on its own has a greater population than 21 states,55 the three smallest states in the Union—Wyoming, Vermont, and Alaska—have received $66,393,163, $54,457,870, and $71,248,123 in CARES Act funding, respectively.56 This discrepancy is not, as should be obvious, based on the relative populations of the territories versus the states but instead based on the U.S.’s constant neglect of her nonstate holdings. However, it is not only the CARES Act that gives disproportionate funding to the states; “[u]nequal treatment in federal programs like Medicaid has left these remote islands with fragile health care systems.”57 Additionally, these islands have been “[u]nderfunded and weakened by natural disasters — hurricanes Irma and Maria, typhoons Mangkhut and Yutu and the Puerto Rico earthquakes... [meaning] the U.S. territories could be quickly overpowered by the coronavirus.”58 These statistics are not reassuring, especially because

the COVID-19 pandemic has been worse in the U.S. than anywhere else in the world. In all crises, it seems as though the US territories are an afterthought, and the cause of this is rooted in our legal philosophy surrounding these islands. We treat these holdings in most cases as we treat them constitutionally: relegated to an inferior status.

Conclusion

While the U.S. has made significant progress on civil rights since the Insular Cases, we have not come far enough. The echoes of our nation’s racist past continue to be a blight on our society, creating the massive social and economic inequalities that we must grapple with—brought to the forefront of American political thought recently due to the Black Lives Matter Movement. The peoples of the United States of America should not be given less rights depending on their physical location within the country. The court even designated much of the problematic laws relating to the territories as temporary. It has been 120 years. It’s time for the Constitution to apply to the whole of the United States. We cannot assure equal rights for all if the supreme law of the land in the U.S. is inoperative for millions of Americans. From civil rights to criminal justice reform to public health policy, the US territories have largely been ignored since their acquisition. The events of the past year have proven just how poorly the U.S. performs in these areas even in the states—the territories have even further to go to adequately respond to these issues. The 13 Colonies broke away from Great Britain to escape governmental abuses—to escape a government that was unaccountable to the Americans and that continuously mistreated them. Today, it is now the U.S. federal government that is unaccountable to millions of its people, ignoring their needs and consistently leaving them as an afterthought. This is antithetical to the American ethos, and something must change.

Justin Roberts is a sophomore at the University of Pennsylvania majoring in Political Science with a concentration in American Politics and a minor in Economics.

Notes

1“‘Give Me Liberty Or Give Me Death!’,” Colonial Williamsburg (Colonial Williamsburg Organization, March 3, 2020), https://www.colonialwilliamsburg.org/learn/deep-dives/give-me-liberty-or-give-me-death/. 2Ibid. 3History.com Editors, “Patrick Henry,” History.com (A&E Television Networks, November 9, 2009), https://www.history.com/topics/american-revolution/patrick-henry.

4Thomas Jefferson et al., “Declaration of Independence: A Transcription,” National Archives and Records Administration (National Archives and Records Administration), accessed January 21, 2021, https://www.archives.gov/founding-docs/declaration-transcript. 5Ibid. 6Madison, James, Thomas Jefferson, Thomas Paine, and John Adams. “The Constitution of the United States: A Transcription.” National Archives and Records Administration. National Archives and Records Administration. Accessed January 21, 2021. https://www.archives.gov/founding-docs/constitution-transcript. 7Downes v. Bidwell, 182 U.S. 244, 287 (1901) 8Ibid., 286 9EDITED BRAD K. BERNER - FOREWORD KALMAN, SPANISH-AMERICAN WAR: a Documentary History with Commentaries(Place of publication not identified: FAIRLEIGH DICKINSON UP, 2016), 6. 10Ibid., xi. 11Ibid., 28. 12Ibid. 13The Spanish American War: Explained (Short Animated Documentary), YouTube(Google LLC, 2019), https://www.youtube.com/watch?v=CaOKfu7ZK7I. 14See note 9 above, 28. 15See note 13 above. 16Ibid. 17Ibid. 18Ibid. 19J. David Archibald, Charles Darwin: a Reference Guide to His Life and Works(Lanham, MD: Rowman & Littlefield, 2019), xxxvii. 20Ibid., xxxvii-xxxix. 21Ibid., xxxvii. 22Lina H. Saud and Laurie A. Rudman, “Justifying Social Inequalities: The Role of Social Darwinism - Laurie A. Rudman, Lina H. Saud, 2020,” SAGE Journals, January 6, 2020, https://journals.sagepub.com/doi/abs/10.1177/0146167219896924. 23Ibid. 24Paul Wolff Mitchell, “The Fault in His Seeds: Lost Notes to the Case of Bias in Samuel George Morton's Cranial Race Science,” PLoS biology (Public Library of Science, October 4, 2018), http://www.ncbi.nlm.nih.gov/pubmed/30286069. 25Moore v. Dempsey, 261 U.S. 86, 99 (1923). 26Ibid., 87-88. 27Ibid., 89. 28Ibid., 96. 29Rudyard Kipling, “The White Man's Burden,” Internet Modern History Sourcebook (Fordham University, August 1997), http://www1.udel.edu/History-old/figal/Hist104/assets/pdf/readings/11whitemanburden.pdf. 30Ibid. 31Gordon Silverstein, “One Constitution, Indivisible? The Insular Cases and American Constitutional Interpretation,” PS: Political Science & Politics50, no. 02 (March 31, 2017): pp. 520-524, https://doi.org/10.1017/s1049096516003115. 32U.S. Const. art. I, sec. 8. 33See note 7 above, 251. 34Ibid., 287. 35Ibid. 36Ibid., 279. 37Howard Gillman, Mark A. Graber, and Keith E. Whittington, American Constitutionalism, 2nd, vol. 2 (New York, NY: Oxford University Press, 2017), 294.

38Ibid. 39Balzac v. Porto Rico, 258 U.S. 298, 305 (1922) 40“Introduction,” Harvard Law Review130, no. 6 (April 10, 2017): p. 1617, https://doi.org/https://harvardlawreview.org/2017/04/us-territories-introduction/. 41U.S. Const. Amend XIV, sec. 1. 42Gabriela Meléndez Olivera and Adriel I. Cepeda Derieux, “‘Nationals’ but Not ‘Citizens’: How the U.S. Denies Citizenship to American Samoans,” American Civil Liberties Union (ACLU News & Commentary, May 22, 2020), https://www.aclu.org/news/voting-rights/nationals-but-not-citizens-how-the-u-s-denies-citizenship-toamerican-samoans/. 43Ibid. 44Ibid. 45Blue Chen-Fruean, “American Samoa Army Recruiting Station Again Ranked #1 Worldwide,” American Samoa Army Recruiting Station Again Ranked #1 Worldwide | Pacific Islands Report (Pacific Islands Report, July 17, 2017), http://www.pireport.org/articles/2017/07/17/american-samoa-army-recruiting-station-againranked-1-worldwide. 46Fiona De Londras, “Guantánamo Bay: Towards Legality?,” Modern Law Review71, no. 1 (January 7, 2008): pp. 36-58, https://doi-org.proxy.library.upenn.edu/10.1111/j.1468-2230.2008.00680.x. 47Ari Fleischer (Washington, DC: CSPAN, 2002). 48John Oliver, “Guantánamo: Last Week Tonight with John Oliver (HBO),” YouTube (Home Box Office and Google, LLC, October 10, 2016), https://www.youtube.com/watch?v=KEbFtMgGhPY. 49Carol Rosenberg, “What the C.I.A.’s Torture Program Looked Like to the Tortured,” The New York Times, December 4, 2019, https://www.nytimes.com/2019/12/04/us/politics/cia-torture-drawings.html. 50David Leigh and James Ball, “Guantánamo Bay Files: Caught in the Wrong Place at the Wrong Time,” The Guardian (Guardian News and Media, April 25, 2011), https://www.theguardian.com/world/2011/apr/25/guantanamo-files-wrong-place-time. 51Rasul v. Bush, 542 U.S. 466 (2004). 52Ibid. 53“State-by-State Breakdown: Delivery of Initial $30 Billion of CARES Act Public Health and Social Services Emergency Fund,” hhs.gov (Department of Health and Human Services), accessed February 7, 2021, https://www.hhs.gov/sites/default/files/state-by-state-breakdown-delivery-of-initial-30-billion-cares-act.pdf. 54Ibid. 55Ryan Struyk, “More Americans Live in Puerto Rico than 21 States (and Other Things to Know),” CNN Politics (CNN News, September 26, 2017), https://www.cnn.com/2017/09/26/politics/puerto-rico-state-hurricanemaria/index.html. 56See note 53 above. 57Gretchen Sierra-Zorita, “The Incomplete Coronavirus Map - US Territories Left Behind,” The Hill (The Hill, April 16, 2020), https://thehill.com/opinion/healthcare/492799-the-incomplete-coronavirus-map-us-coloniesleft-behind. 58Ibid. 59See note 35 above.

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