Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause

The Insular Cases, a series of Supreme Court decisions in the early 1900s concerning the constitutional status of the colonies acquired from Spain at the conclusion of the Spanish-American War, have rightly played a central role in the discussion of Congress’ relationship with the current U.S. territories. Overruling those decisions, which are racist in their rationale, is long overdue. Their repudiation, however, will not change the separate and unequal status of the territories as compared to the states under the Constitution. Because the Constitution distinguishes territories from states, formal decolonization—namely, ceasing to be a territory—is a necessary precondition to equal status under the Constitution (or, as Chief Justice John Marshall once wrote, “complete equality”). Stated in more precise terms, so long as the territories remain territories, their residents will not be equal to the residents of the states under the law. But that formal inequality was always meant to be temporary. The Constitution does not authorize colonial rule indefinitely because the territorial status, properly understood, is impermanent in character. Moreover, to cease to be a territory, the Constitution recognizes only two options: statehood or independence (which includes free association). As this Article demonstrates, the Constitution’s text and related historical practice provide a fresh outlook on how to make the constitutional case for decolonization and bring much-needed equality to the residents of the territories—America’s long-forgotten citizens.