Excerpted From: Claire Lisker, Geographic and Linguistic Belonging:  A Prerequisite for Full Constitutional Rights, 39 Chicana/o-Latina/o Law Review 183 (2023) (136 Footnotes) (Full Document)


ClaireLiskerThe “anticanon” refers to a collection of “deplorable” Supreme Court cases that have been widely condemned in the legal community. Scholars include these cases in the anticanon, not because “[t]here is consensus within the legal community that the cases are wrongly decided,” but rather, as Jamal Greene explains, because “there is disagreement, even irreconcilable disagreement, as to why.” Greene continues: “This feature of anticanon cases is indispensable, as it enables multiple sides of contemporary constitutional arguments to use the anticanon as a rhetorical trump,” meaning anticanon cases may be cited negatively to advance various--even divergent--legal arguments. Yet, with little exception, they are only cited negatively. However, not all cases generally thought of as “deplorable” are relegated to the anticanon. Some remain a part of mainstream judicial reasoning, and Greene's characterization of the anticanon suggests that those non-anticanon deplorable cases typically meet at least one of the following criteria: 1) they remain controlling precedent, 2) they have not earned a consensus as to their erroneousness; 3) they do not represent a departed-from principle that litigators and judges can caution against, when urging distinct contemporary arguments. The Insular Cases, a collection of cases decided between 1901 and 1922, meet all three criteria. They are disgraceful because of their racist rhetoric and exclusive conception of rights, yet they are still controlling; they are regarded by many--but not by all--as wrongly decided; and the country has not abandoned the divisive and racialized conception of Anglo-Saxon American “belonging” that they perpetuated. That these deplorable cases are not in the anticanon evidences that they continue to pollute our legal system and the societal norms that germinate from it.

The Insular Cases determined for the first time how to apply the U.S. Constitution to the territories the U.S. acquired in the Spanish-American War of 1898. v. Bidwell, one of the best-known of the Insular Cases, held that the Constitution does not automatically apply to the territories, explaining that for the territories to be subject to U.S. jurisdiction does not make them “of the United States,” meaning they are not “a part of the American family.” In Bidwell, the Court presumed that it had the power to prescribe those terms based in part on Johnson v. M'Intosh, a prior, infamous case in which the Court justified the colonization of indigenous lands with violently racist imperialist philosophies and declared, “The title by conquest is acquired and maintained by force. The conqueror prescribes its limits.” Whereas the Bidwell Court applied the Constitution in full to territories that the U.S. sought to incorporate as states, such as Alaska, it applied only “fundamental” constitutional rights to the others, absent a congressional statute conferring a fuller slate of rights. U.S. citizenship was not deemed fundamental example, Puerto Rico did not gain birthright citizenship until the Jones Act in 1917 could citizenship trigger access to full constitutional rights. The Insular Cases are infamous for their white supremacist and colonialist rhetoric. For instance, the Bidwell Court referred to residents in various U.S. territories as “alien races,” “savage,” and incapable of being governed by “the administration of government and justice, according to Anglo-Saxon principles,” due to their different “religion[s], customs, laws, methods of taxation, and modes of thought.”

Bidwell, which was decided by the same Justices who decided Plessy v. Ferguson noxious blow to Reconstruction and an anticanon case the same skepticism about the ability of Puerto Ricans to govern themselves that white southerners espoused about Black people during Reconstruction. Coming eleven years after the Massacre at Wounded Knee which “marked the end of the Indian Wars,” the Insular Cases helped usher in the expansion of the Anglo-Saxon colonial project beyond U.S. continental boundaries to offshore lands.

The Insular Cases' two-tiered conception of citizenship survives to this day, perpetuating the subordination the Court judicially created and producing other perverse outcomes. At the time of the Insular Cases, the Court created this notion of U.S.-belonging to cultivate and disseminate its racist Anglo-Saxon imperialist principles. Today, the U.S. continues to value how much one “belongs” in the U.S. more than their personhood, as evidenced by it conferring weaker legal protections when its Anglo-Saxon nationalist interests--in enforcing geographic boundaries by policing its borders and in maintaining the supremacy of the English language--are implicated.

In this Article, I consider the injurious legacy of the racialized judicial innovation that an individual's rights can vary according to how much they “belong” to the Anglo-Saxon U.S. polity, a construct anchored largely-- albeit not solely--in the Insular Cases. In particular, I argue that today, the U.S. closely safeguards 1) its territorial sovereignty--as constructed, an inherently ethno-racialized conception, and 2) its idea of English linguistic supremacy as an instrument of exclusion, both at the expense of citizens' legal rights and access to remedies. As evidenced by recent Fourth Amendment jurisprudence and Court decisions vindicating English-only restrictions, our legal system has undercut minority rights in furtherance of these two interconnected values, infecting our social fabric with prejudicial norms. The Insular Cases, by manufacturing this legacy and retaining their vitality in our current legal system, remain not “the main drama in the story of constitutional redemption,” but the “unchanging architecture of colonial sovereignty often relegated to the backdrop.”

[. . .]

The Latine population in the U.S. has grown to 6.1 million as of 2020, making it the “second largest racial or ethnic group, behind White Americans.” As of 2019, 61.5 percent of the U.S. Latine population reported having Mexican roots, with the second largest group, Latines with Puerto Rican roots, composing 9.7 percent of the U.S. Latine population. However, Latines remain under the cloud of the Insular Cases and the concept of liminality that these cases pioneered: that a citizen's full enjoyment of their constitutional rights is conditional on their fully “belonging” in the U.S., which is defined by ethno-racialized metrics. Today, an individual's access to justice may at times depend less on their personal entitlement to constitutional rights and more so on how well they and their legal claims align with the U.S.'s fundamental interests in territorial sovereignty and the supremacy of the English language. Courts are less willing to vindicate individuals' procedural and substantive rights when doing so may challenge the U.S.'s ability to safeguard its Anglo-Saxon national identity.

Recognition that the Insular Cases were racist and imperialistic appears to be widespread, as exemplified by Justice Neil Gorsuch's assertion that they “have no foundation in the Constitution and rest instead on racial stereotypes,” are “shameful,” and “deserve no place in our law.” Yet, despite mounting pressure on the Supreme Court to overturn these cases, including from influential legal voices like the American Bar Association the Supreme Court has not seized the opportunity to overrule them.

Nonetheless, even if our highest Court were to vacate this precedent, the Insular Cases would be unlikely to qualify for the anticanon due to their enduring stain on our legal system. Cleansing the U.S. of the legacy left by the Insular Cases--and our country's other Anglo-Saxon imperialist decisions that preceded them--would require more than a “feigned dissolution,” the Court's act of “overrul[ing] a precedent because of the negative connotations it has acquired, without disassembling its component philosophies or methods.” While it is a long overdue necessity for the Supreme Court to overrule the Insular Cases, it must also undertake a serious examination of how it balances constitutional interests against sovereignty interests. Only if our nation unlearns the tendency to view rights as secondary to conceptions of belonging--whether territorial, linguistic, or otherwise--can all citizens enjoy the full and fair protections that our constitutional system of justice is meant to offer.

Claire Lisker, J.D., 2023, New York University School of Law; B.A., 2018, University of Pennsylvania.