More on Normative Puzzles

by David Golove

I’d like to pick up on the thread begun by Tim and Peter. Kal’s discussion of the Insular Cases follows the traditional understanding that places them in a normatively negative light, as important constitutional facilitators of colonialism and as reflecting the era’s racism. Clearly, it was both of those things, though it is worth noting (depressingly) that the anti-imperialism movement was itself, to a considerable extent, infused with (and indeed propelled by) racism. At least since Eisentrager and Reid, however, much of the focus of criticism has been on the Court’s willingness to apply the Bill of Rights only partially (on a kind of natural law theory) to the insular territories. Why should non-white persons be entitled only to a lesser bundle of constitutional rights? Yet, as Peter points out, the main impact, at least as I understand it, of the Court’s ruling about the Bill of Rights was that the jury trial right did not apply in Puerto Rico and the other insular possessions, and that ruling seems at least plausible, and perhaps justified normatively, in view of the different (civil law) traditions that predated the U.S. conquests. So, my question is, did the Court’s failure to find the Bill of Rights applicable in full actually facilitate violations of basic rights in the territories, and would overruling Downes and its progeny in this respect be a significant improvement from a human rights perspective? My intuition is that the Bill of Rights ruling was not the normatively most problematic aspect of Downes. One might point, alternatively, to the (constitutional) economic implications of “non-incorporation” as more crucial, but, here again, it is not clear, at least to me, whether non-incorporation was more a privilege than a burden on the citizens of the territories. A final possibility is that what was really crucial was the understanding that the insular possessions were not on even the slow track to statehood and that their citizens, therefore, had no expectation of exercising political rights in the United States. In this respect, the decisions marked a great divergence from prior understandings during the westward expansion, and it opened the possibility that the United States could hold these territories as colonies in perpetuity. That sounds pretty bad, but even here, one might point out that incorporation might have been worse. Consider the fact that Puerto Rico still has not opted for statehood, and the Philippines presumably prefers the fact that it achieved independence rather than unbreakable membership in the U.S. political system. In any case, my point is that I’m really puzzled by the normative issue. I’m hoping Kal can enlighten us on this point?

Let me also briefly respond to Kal’s earlier response to my comments simply by noting that Kal’s point – that the Ross case explicitly discusses extraterritoriality, not municipal v. international law jurisdiction – is entirely fair. I do believe, as Kal anticipates, that, though the Court focuses on extraterritoriality, behind its decision lies the distinction between municipal and international jurisdiction. I would underscore that Ross and its progeny were very late 19th Century and early 20th Century decisions. By that time, the territoriality doctrine, though long underwritten by the distinction between municipal and international jurisdiction, had begun to reify, and courts were less likely to discuss or perhaps even understand the underlying basis for the doctrine. If one returns to the period between the Founding and the post-Civil War era, the relationship between territoriality and municipal v. international law jurisdiction becomes clearer. Obviously, this is a technical question, which perhaps Kal and I can pursue further without dragging others along with us!

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