The Imposition of Constitutional Rights

Alvin Padilla-Babilonia* May, 2025

One of the central principles of constitutionalism is that citizenship stands for equal rights under the law. According to this ideal, a U.S. citizen living in Puerto Rico or Guam should have the same constitutional rights as a citizen living on the mainland. However, throughout U.S. history, constitutional rights have been neither uniform nor centralized. While constitutional rights held importance, they coexisted with ideals of democratic self-governance and legal pluralism. Today, Supreme Court justices and legal scholars argue that all constitutional rights should apply in the territories. This view upholds citizenship, equal rights, and the rule of law. But the imposition of constitutional rights overshadows more critical discussions about democracy, pluralism, and decolonization in U.S. territories.

This Article critiques the imposition of constitutional rights in the American empire. It explores the historical and intellectual links between how the Supreme Court extended federal constitutional rights in the states and territories. The extension of constitutional rights was influenced by slavery and territorial expansion, culminating in two doctrines: the doctrine of selective incorporation (for states) and the doctrine of territorial incorporation (for territories). Through these doctrines, the Supreme Court decided to extend to the states and territories only those rights deemed “fundamental,” excluding “methods of procedure,” such as jury rights. Initially, the Supreme Court’s interpretation of fundamental rights aligned with democracy and legal pluralism. However, during the twentieth century, the Supreme Court incorporated nearly all of the Bill of Rights against the states. This raises the question: Would the same “fundamental rights” apply in U.S. territories? Federal courts and legal scholars have yet to provide a normative answer to the questions of which rights should be incorporated in U.S. territories and what, if anything, justifies a different system of rights in the states and territories.

This Article proposes a solution by emphasizing three normative values: democratic self-governance, pluralism, and decolonization. If we genuinely prioritize self-rule, the people living in the territories should determine for themselves whether and how constitutional rights apply there. By reevaluating the overlooked similarities with Native nations, this Article argues that democratic pluralism for colonized peoples is constitutional in the territories. This normative approach can take various institutional forms to resist judicial imposition: legislative override, legislative resistance, legislative avoidance, judicial resistance, and judicial avoidance. Through this normative approach, we can reappraise local debates and bills concerning unanimous jury trials, free speech, campaign financing, and gun control, among other issues. Thus, by theorizing from the territories, we can conceive new ways to reconcile constitutional rights with democracy, pluralism, and decolonization.

Introduction

Constitutional rights apply differently across the American empire. A century ago, the Supreme Court of Puerto Rico decided that women’s suffrage, as enshrined in the Nineteenth Amendment of the U.S. Constitution, did not apply in Puerto Rico.¹ It relied on the idea that the U.S. Supreme Court advanced a mere two years earlier in one of the Insular Cases,² that only fundamental rights applied to citizens in overseas colonies, like Puerto Rico.³ While fundamental rights applied in Puerto Rico, other privileges of Anglo-Saxon origin, such as the right to trial by jury, did not.⁴ When the Supreme Court deliberated over the Insular Cases, constitutional rights held a less central position in U.S. politics, often yielding to principles of democratic self-governance and pluralism.⁵ The Puerto Rican suffrage decision exemplified the worst of this theory of constitutional rights—it left the recognition of core constitutional rights to purported democratic majorities that excluded women from the vote, and it erroneously leveraged cultural tradition to argue against women’s rights.

A hundred years later, however, we have a different conception of constitutional rights. Instead of deferring to self-governance and pluralism, judges now fixate on the text of the Constitution, alongside U.S. history and tradition.⁶ Members of the Supreme Court openly criticize the Insular Cases,⁷ and Supreme Court justices have expressed their view that the scope of constitutional rights in the territories should be based on these same tools of constitutional interpretation: text, original understanding, and historical practice.⁸ The constitutional redemption narrative views the plights of territorial residents as one concerning the constitutional rights of U.S. citizens, and it portrays the Constitution as the means to unlocking equality for colonized people.⁹

However, this narrative overlooks the fact that the extension of equal rights is not the same as facilitating decolonization and democratic self-governance.¹⁰ While the people residing in Puerto Rico could enjoy the Bill of Rights, Puerto Rico would remain excluded from the Electoral College, and from choosing presidents and senators who appoint and confirm the judges who construe the Constitution. Puerto Rican legislation—concerning criminal procedure, civil trials, elections, education, and public safety—would be constrained by the scope of eighteenth- and nineteenth-century constitutional texts they had no role in drafting. Without democratic decolonization, constitutional uniformity is just another form of colonial imposition.¹¹

The debate about how the Constitution applies to the territories overshadows how the imposition of rights can also impair democratic self-governance, pluralism, and decolonization. A new theory of constitutional rights tailored to the unique circumstances of the territories is necessary.¹² This new framework must take democracy, pluralism, and decolonization seriously, without ignoring the internal differences among the people within the territories.¹³

This Article critiques the imposition of constitutional rights within the American empire. It provides a historical account for how the debates over extending constitutional rights in the territories and states developed. These debates—which implicate the Constitution’s written character, enumerated powers, federal courts, democratic self-governance, and pluralism—began with slavery’s extension into territories as the United States expanded west. After the Supreme Court’s decision in Dred Scott v. Sandford,¹⁴ these political arguments were constitutionalized in judicial debates concerning the Bill of Rights in the states, U.S. territories, and overseas colonies.¹⁵

In early incorporation cases, such as Missouri v. Lewis and Hurtado v. California, the Supreme Court extended only those rights deemed “fundamental” and not those that were “methods of procedure,” such as the right to trial by jury and the right to a grand jury.¹⁶ The Court justified this as a defense of state democracy and pluralism.¹⁷ Meanwhile, the doctrine of territorial incorporation, elaborated in the Insular Cases, adopted the same conception of fundamental rights. These cases paid lip service to the ideas of democracy and legal pluralism while denying the territories their capacity to govern themselves.¹⁸

During the twentieth century, however, the Supreme Court incorporated nearly all of the Bill of Rights through the doctrine of selective incorporation while preserving the emphasis on fundamentality.¹⁹ Federal courts provided inconsistent answers on which constitutional rights extended to the U.S. territories. They held that a constitutional right fundamental in the states was also fundamental in Puerto Rico,²⁰ but also held that certain rights fundamental in the states were not so in the Northern Mariana Islands, Guam, or American Samoa.²¹

Prior judicial and scholarly analyses focus on constitutional interpretation and whether the Supreme Court should repurpose or overrule the Insular Cases.²² But merely overruling the Insular Cases and extending all constitutional rights might hinder democratic self-governance, pluralism, and decolonization in the territories. Accordingly, this Article questions whether U.S. constitutional rights ought to apply in U.S. territories. It argues that the peoples of the territories themselves should decide the application and scope of these constitutional rights. The Article, therefore, conceptualizes a new democratic and pluralistic path for extending constitutional rights that resists the imposition of constitutional rights in territories across the American empire.

This Article’s historical narrative concerns a time when debates over constitutional rights in the states and the territories were intricately interwoven. Today, only the Bill of Rights’ incorporation against the states is a central feature of U.S. constitutionalism. The record is incomplete without the history of constitutional rights in the territories and overseas colonies. These constitutional narratives, put together, reveal the open-ended nature of constitutional law, and how debates about rights were subordinated to political considerations of slavery and territorial expansion.

During the nineteenth century, the Constitution did not extend to the territories ex proprio vigore,²³ and the Bill of Rights did not yet constrain state governments.²⁴ These constitutional conventions were tested during the Civil War and Reconstruction.²⁵ Against this backdrop, a new democratic and pluralistic approach to constitutional rights emerged: Fundamental rights were better protected through democratic self-governance, and U.S. constitutionalism needed to leave room for adapting the best of all legal systems—not only Anglo-Saxon methods of procedure.²⁶ Although the Supreme Court seemingly adopted this view in the Insular Cases, those cases denied the territories democratic self-governance. It would be a mistake, however, to overrule the Insular Cases if it meant abandoning the United States’ long history of reconciling constitutional rights with democracy and pluralism.

This Article proceeds in three parts. Part I explores the open-ended nature of constitutional rights and rescues the democratic and pluralistic considerations of the early incorporation cases. Since the Louisiana Purchase, it remains an open question whether the Constitution applies ex proprio vigore in the territories or whether Congress must affirmatively extend the privileges and immunities of citizenship. The politics of slavery and the United States’ territorial expansion shaped this debate. Although certain framers of the Fourteenth Amendment sought to incorporate the Bill of Rights against the states,²⁷ the Supreme Court rejected incorporation through the Privileges or Immunities Clause.²⁸ Instead, the Court incorporated certain fundamental rights through the Due Process Clause while excluding others, like jury guarantees, as “method[s] of procedure.”²⁹ The Insular Cases followed this approach, with the Court deciding that the overseas colonies were unincorporated territories where the Constitution did not apply of its own force.³⁰ The Supreme Court provided the legal and ideological foundation for a limited democratic and pluralistic approach to rights, first in the states and then in the overseas colonies.

Part II discusses whether a right deemed fundamental and incorporated against the states is also fundamental and incorporated in the territories. Influenced by the doctrine of selective incorporation, federal courts and legal scholars have defended a symmetry of rights in the states and territories, what I call the fundamental-is-fundamental approach. This Part also explores how the Insular Cases and their reinterpretation by Justice Frankfurter and Justice Harlan in Reid v. Covert became their own judicial approach for extending rights in the territories.³¹ Under this framework, which I call the fundamental-is-not-fundamental approach, federal courts determined that certain rights considered fundamental in the states were not fundamental rights in the territories. In cases concerning jury trials,³² citizenship,³³ and the one person, one vote principle,³⁴ federal courts have rejected a symmetric approach to constitutional rights.³⁵

Part III develops an independent argument for pluralism and democratic self-governance in U.S. territories. This Part compares the liberal approach to rights predominant in the United States with pluralistic and democratic understandings of rights. If we take democratic self-governance, pluralism, and decolonization seriously, the peoples of the territories should decide for themselves which constitutional rights apply there. It also argues that democratic pluralism for colonized peoples aligns with constitutional doctrine, and that this framework already exists in the United States’ relationships with Native nations. Finally, this Part outlines multiple institutional forms that the territories can adopt to resist judicial imposition: legislative override, legislative resistance, legislative avoidance, judicial resistance, and judicial avoidance. Democratic pluralism for colonized peoples reconceptualizes local debates and bills concerning unanimous jury trials, free speech, campaign financing, and gun control, among others. This approach offers new pathways for reconciling constitutional rights with democracy, pluralism, and decolonization.³⁶

I. The Extension of Constitutional Rights: Territories, States, and Overseas Colonies

The following Sections examine the co-constitutive relationship between the extension of the Constitution in the U.S. territories and overseas colonies and the incorporation of the Bill of Rights in the states. Although debates surrounding extension peaked in the twentieth century, their foundations were laid much earlier through events like the Louisiana Purchase³⁷ and the intricate interplay between territorial expansion and slavery.³⁸ After the Civil War, the Fourteenth Amendment’s principle drafters wanted to apply the Bill of Rights against the states. The Supreme Court rejected the drafters’ intentions when it abstained from applying the Bill of Rights’ jury provisions to the states, instead allowing individual states to decide whether to apply them based on their own customs and habits.³⁹ This approach was subsequently mirrored in the Insular Cases: Only fundamental rights applied in the overseas colonies, while the Bill of Rights’ methods of procedure did not.⁴⁰

A. Louisiana, Slavery, and the Extension of Constitutional Rights

The Louisiana Purchase sparked the first debate over the Constitution and the Bill of Rights’ extension into annexed territory. The question of whether to extend constitutional rights was linked to the issue of extending slavery into the territories. In the Northwest Ordinance, which governed the Northwest Territory, the extension of rights coincided with the abolition of slavery.⁴¹ But in future territories, the destiny of constitutional rights would become intricately linked with the destiny of slavery.

Article Three of the Louisiana Purchase Treaty provided that once “incorporated,” the inhabitants of the ceded territory would enjoy the rights and immunities of U.S. citizens.⁴² Before incorporation, however, they only benefited from the rights to liberty, property, and religion.⁴³ Because the expansion of constitutional rights hinged on the meaning of “incorporation,” it is essential to determine whether incorporation referred to inclusion as citizens of a territory or as citizens of a state. For President Thomas Jefferson, incorporation did not mean admission into the Union as a state. Instead, incorporation only vested “the inhabitants thereof with all the rights possessed by other territorial citizens of the U.S.”⁴⁴ Similarly, for Jefferson’s Secretary of State, James Madison, it was important to protect the inhabitants’ rights to liberty, property, and religion during “the delay which may be found in constituting them a regular and integral portion of the union.”⁴⁵ Members of Congress defended the Louisiana Treaty because it allowed Congress to eventually incorporate Louisiana as a territory—a decision separate from the question of statehood.⁴⁶ Before incorporation as a territory, the free inhabitants of Louisiana would still be protected in their persons, property, and religion—a proto list of fundamental rights.⁴⁷ After their incorporation as a territory, however, the inhabitants would enjoy the rights and immunities of U.S. citizens.⁴⁸

But even after the inhabitants were incorporated as citizens of the territory, Congress could still grant different constitutional rights to different territories. In 1804, Congress divided Louisiana into two territories—the Territory of Orleans and the District of Louisiana— and applied rights and immunities differently.⁴⁹ Orleans, for example, provided jury trials upon request in all criminal and civil cases, but the twelve-member jury applied only for capital offenses.⁵⁰ Meanwhile, in the District of Louisiana, only civil cases over one hundred dollars went to a jury, but twelve-member juries tried all criminal prosecutions.⁵¹ These differences matched Jefferson’s view that the extension of rights depended on Congress;⁵² these rights would not apply ex proprio vigore.⁵³ The privileges or immunities did not need to be identical among the territories. For example, the Seventh Amendment applied in civil controversies exceeding twenty dollars, but in the District of Louisiana, the Seventh Amendment applied only in controversies of one hundred dollars or greater.⁵⁴ Finally, placing these territories in the same place as “the other territorial governments,” satisfied the “incorporated” language of the third article of the Louisiana Treaty.⁵⁵

After their incorporation as citizens of a U.S. territory, the inhabitants of Louisiana were supposed to enjoy the rights, privileges, and immunities of citizenship. However, concerned Louisianans argued this incorporation as territorial citizens did not give them the “rights” and “immunities” of U.S. citizenship as promised by the Louisiana Treaty.⁵⁶ They decried the congressional ban on the importation of enslaved people in these territories, and they asked for “the right of deciding it for ourselves . . . .”⁵⁷ Reiterating the words of the Treaty’s third article, Louisianans pleaded for their prompt incorporation into the Union as a state with all the rights, privileges, and immunities of U.S. citizens, which they believed included the right to practice slavery.⁵⁸ In response to their letter, Thomas Paine clarified the language and scope of the third article, aligning with the views of Madison, Jefferson, and the majority of Congress: “You are already incorporated . . . .”⁵⁹ Paine contended that “under the name of rights,” Louisianans were asking for the right “to import and enslave Africans.”⁶⁰ To Paine, the right to enslave people was not a constitutional right, and territorial incorporation complied with the Louisiana Purchase Treaty terms.⁶¹

When in 1819 the new Missouri Territory, formed from the Louisiana Territory, sought admission as a state, the tension between territorial expansion, constitutional rights, and slavery reappeared.⁶² Echoing the earlier pleas of Louisianans, proslavery advocates argued that conditioning Missouri’s admission as a state on the prohibition of slavery violated Article Three of the Louisiana Treaty. Representative John W. Taylor, however, understood incorporation as “admission to the rights of citizens,” which was fulfilled in 1804 when Congress extended to Missourians the rights and immunities of citizens.⁶³ Like Paine before him, Taylor argued that these rights did not include the right to enslave people.⁶⁴ Similarly, for Representative Daniel Webster: just as Congress required the Territory of Louisiana to recognize the right to jury trials in a civil law jurisdiction,⁶⁵ and to conduct legislative and judicial proceedings in English,⁶⁶ Congress could require Missouri to prohibit slavery.

These discussions imply that before being incorporated as a territory, residents were safeguarded solely in their persons, property, and religious beliefs. Congress possessed broad authority to extend constitutional rights,⁶⁷ and it did not deem ownership of enslaved people a right or privilege of citizenship. Nevertheless, each of these assumptions faced opposition as the United States acquired more territory and proponents of slavery continued their advocacy.

B. Slavery, Dred Scott v. Sandford, and the Fourteenth Amendment

The Louisiana debates reveal how views on constitutional rights were tied to slavery and its expansion to the territories. But during this time, congressional authority over slavery in the territories was not questioned in constitutional terms. This changed in the 1840s, when solutions to the problem of slavery in the territories—nonintervention, territorial sovereignty, and the free-soil doctrine—were defended as “constitutional imperative[s]” to the exclusion of other potential solutions.⁶⁸ Proponents used property rights to justify slavery, while critics denounced slavery as a transgression of personal liberty.⁶⁹ As a result, the issue of constitutional rights within the territories and states became not only a matter of constitutional interpretation but also intricately linked to the fate of slavery itself.

By the late 1840s, Congress considered whether the Constitution applied by its own force in the territories. In 1848, Senator Isaac Walker introduced an amendment to extend the Constitution into the territories newly acquired from the Mexican-American War.⁷⁰ This led to a famous debate between Senator John C. Calhoun, who believed the Constitution protected slavery and automatically covered the territories, and Senator Daniel Webster, who argued Congress had to extend the Constitution into the territories.⁷¹ For Calhoun, Congress was a “creature of the Constitution,” limited by its enumerated powers, and it could not pick and choose which constitutional provisions to comply with, and which to ignore.⁷² For Webster, however, the Constitution governed only the states. In his view, because the territories were not part of the United States, the constitutional rights of trial by jury and habeas corpus could not extend there by their own force.⁷³ Congress subsumed the matter of constitutional rights in the territories within the broader debate over the expansion of slavery.⁷⁴ After members of Congress reframed the question of slavery in the territories as one concerning constitutional rights, federal courts confronted the matter.⁷⁵

Before Dred Scott, the Supreme Court applied some of the Bill of Rights’ individual liberties to the territories, but only because Congress extended those provisions there. In Webster v. Reid, Justice John McLean applied the Seventh Amendment to the Territory of Iowa because Congress “extended the laws of the United States, including the Ordinance of 1787, over the Territory.”⁷⁶ The Northwest Ordinance had guaranteed, among other rights, the right to trial by jury.⁷⁷ In legislating for the territories, Congress explicitly extended the privileges and immunities of U.S. citizenship.⁷⁸

In Dred Scott v. Sandford, the Supreme Court finally reached the issue and held that since territories were “a part of the United States,” the federal government could not “lawfully deny any right which it has reserved.”⁷⁹ It proceeded to list the rights of the first eight amendments to the Constitution, including the Fifth Amendment, which declares that no person shall be deprived of their life, liberty, or property without due process.⁸⁰ Because of the Fifth Amendment’s general language, the Court reasoned, its prohibitions “extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under Territorial Government.”⁸¹ Moreover, since Congress could not deny these rights, it also could not authorize territorial governments to violate the Constitution.⁸² And because the majority interpreted the right to property to include a right to enslave Africans, neither Congress nor territorial legislatures could prohibit “a citizen from holding and owning property of this kind in the territory of the United States.”⁸³ In their dissenting opinions, Justice Curtis and Justice McLean disagreed on the scope of federal powers over slavery, but they recognized that the Bill of Rights extended to the territories.⁸⁴

Dred Scott focused on Congress’s power to abolish slavery in the territories, but Abraham Lincoln worried that the Supreme Court would hold that the Constitution did “not permit a state to exclude slavery from its limits.”⁸⁵ This is precisely what proslavery advocates wanted.⁸⁶ If the Due Process Clause protected a right to enslave people, and if it applied against states, then enslavers could bring enslaved people into otherwise free states.⁸⁷ Barron v. Baltimore, however, stood in the way. In that case, the Supreme Court declared that the Bill of Rights, specifically the Fifth Amendment, did not apply against state governments because it imposed restrictions only upon the federal government.⁸⁸ While Southerners argued that the Fifth Amendment protected slavery, abolitionists reasoned that the Due Process Clause actually forbade slavery.⁸⁹ A minority also asserted that slavery itself was unconstitutional in all the states.⁹⁰ Therefore, just as in the territories, the question of constitutional rights in the states depended on the future of slavery.

Since the extension of constitutional rights was subordinated to sectional views of slavery, one of the main concerns after its abolition was the future of constitutional rights, especially for Black people in the South.⁹¹ Influenced by antislavery constitutionalism, some Republicans argued that the Bill of Rights applied to the states and that Black people were U.S. citizens, contrary to Dred Scott.⁹² The Fourteenth Amendment codified this position.⁹³ Its Citizenship Clause overruled Dred Scott, while its Privileges or Immunities Clause was drafted to overrule Barron and incorporate the Bill of Rights against the states.⁹⁴ Leading proponents of the Fourteenth Amendment indicated that they intended the Amendment to compel the states to obey the Bill of Rights.⁹⁵ Accordingly, the Fourteenth Amendment aimed to “protect all rights of citizens.”⁹⁶

Under the Fourteenth Amendment, U.S. citizens enjoyed privileges or immunities, but no one, regardless of their citizenship status, could be deprived of “life, liberty, or property, without due process of law.”⁹⁷ This construction resembled Article Three of the Louisiana Treaty: Citizens of the United States enjoyed “all the rights, advantages and immunities,” while as persons, they were protected in their “liberty, property, and . . . religion.”⁹⁸

The debate over slavery and the extension of constitutional rights in the territories led to the abolition of slavery and the eventual extension of constitutional rights in the states. The second sentence of the Fourteenth Amendment, however, limits only the states.⁹⁹ While the abolitionists who inspired the Reconstruction Amendments believed the Due Process Clause applied in the territories,¹⁰⁰ this same view was held by proslavery advocates and finally adopted in Dred Scott.¹⁰¹ Moreover, leading Republicans, such as Representative Thaddeus Stevens and Senator Charles Sumner, argued that the Southern states “reverted to the condition of territories” by seceding from the Union.¹⁰² As territories, Congress could condition their readmission into the Union on the Fourteenth Amendment’s ratification, just as Congress conditioned the admission of new states on the adoption of certain rights.¹⁰³ The North’s view of the seceding states as “conquered provinces” aligns more with Jefferson and Webster’s view of congressional power over the territories, than the ex proprio vigore view of Calhoun and Chief Justice Taney.¹⁰⁴ While Stevens and Sumner believed the Fourteenth Amendment extended the Bill of Rights to the states, it was unclear what this meant for constitutional rights in the territories.¹⁰⁵

C. Constitutional Rights, Democracy, and Pluralism

Although the text and history of the Fourteenth Amendment suggested that federal constitutional rights applied against state governments, the Supreme Court swiftly ruled that the Privileges or Immunities Clause was not a basis for establishing new constitutional rights.¹⁰⁶ Instead, the Supreme Court attempted to reconcile constitutional rights with democratic self-governance and the accommodation of other cultures and legal systems, particularly in future civil law territories.¹⁰⁷ Democracy and pluralism, then, justified not extending an Anglo-American “method of procedure,” such as the grand jury,¹⁰⁸ to the states.¹⁰⁹ Instead, only the “fundamental principles” applied in the states.¹¹⁰ Justice Harlan, however, argued that the Constitution, not individual justices, was the best source to identify the rights that applied in the states.¹¹¹ These ideas about fundamental rights, the written nature of the Constitution, democracy, and pluralism are crucial because they set the stage for the debate on extending the Constitution to overseas colonies.¹¹²

Despite criticism of the Supreme Court’s interpretation of the Privileges or Immunities Clause,¹¹³ the Slaughter-House Cases represent the first judicial effort after Reconstruction to balance democracy and constitutional rights.¹¹⁴ Justice Miller’s opinion upheld progressive state legislation by a racially integrated legislature against the claims of white butchers who sought to assert their property rights.¹¹⁵ The Supreme Court held that the “one pervading purpose” of the Fourteenth Amendment was “the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”¹¹⁶ But outside of this domain, the Amendment did not change the “theory of the relations of the State and Federal governments.”¹¹⁷ Under this theory, the state governments have the powers for “domestic and local government, including the regulation of civil rights.”¹¹⁸ As a result, the Fourteenth Amendment did not curtail the states’ authority to exercise police powers in regulating the slaughterhouse industry to safeguard public health. The Supreme Court, therefore, refused to transform itself into “a perpetual censor upon all legislation of the States, on the civil rights of their own citizens.”¹¹⁹ Its respect for local democracy and state citizenship is a recurrent consideration in debates about the extension of constitutional rights in the states.

The Slaughter-House Cases emphasized the protection of Black people in the South, upheld progressive legislation over property rights, and rejected judicial interference with a reconstructed legislature. Three years later, however, in United States v. Cruikshank, the Supreme Court interfered with Reconstruction legislation and denied the civil and political rights of Black people.¹²⁰ In Cruikshank, the federal government prosecuted white supremacists for “banding” or “conspiring” to prevent Black freedmen from enjoying the rights secured by the Constitution.¹²¹ The Supreme Court, however, overturned the convictions.¹²² The indictment included certain rights—the right to assemble, the right to bear arms, the right to vote, and the right to due process of law—that the Supreme Court understood, citing the Slaughter-House Cases, as rights of state citizenship; they were, thus, not rights secured by the Constitution of the United States.¹²³ Although the Slaughter-House Cases developed a democratic theory of rights to support progressive state legislation without ignoring the “pervading purpose” of the Fourteenth Amendment,¹²⁴ the Court in Cruikshank betrays this theory by refusing to enforce federal legislation that protected Black citizens from oppression and violence.¹²⁵

If the Slaughter-House Cases attempted to reconcile constitutional rights with democracy, then Walker v. Sauvinet and Missouri v. Lewis evaluated the Fourteenth Amendment in the context of an expanding empire that needed to accommodate new territories with diverse legal systems.¹²⁶ In Walker, the Supreme Court declined to incorporate the Seventh Amendment through the Fourteenth Amendment’s Due Process Clause. Instead, the states could “regulate trials in their own courts in their own way.”¹²⁷ Meanwhile, in Lewis, Missouri’s judicial system was challenged under the Fourteenth Amendment’s Equal Protection Clause because it provided different forms of appeal for different counties. The Supreme Court recognized the right of each state to “regulate its internal affairs.”¹²⁸ Nothing in the Constitution, including the Reconstruction Amendments, prevented a state from adopting “the civil law and its method of procedure” for some counties and “the common law and its method of procedure” for others.¹²⁹ The Fourteenth Amendment, therefore, does not “secure to all persons in the United States the benefit of the same laws and the same remedies.”¹³⁰ While one region of a state might recognize the right to trial by jury, another region does not have to.¹³¹ Writing in 1880, the Supreme Court reasoned that if a Mexican state is acquired by treaty and added to a U.S. state, the “new State might allow the Mexican laws and judicature to continue” in that portion of the state.¹³² By balancing the Fourteenth Amendment with legal pluralism, Missouri v. Lewis provided an additional element for courts to consider when deciding which constitutional rights extend across the United States.

In Hurtado v. California, the Supreme Court combined the democratic conception of rights and the pluralistic conception of rights for the first time. The case considered whether the Fifth Amendment’s right to grand jury indictment applied in state criminal prosecutions through, as in Walker, the Fourteenth Amendment’s Due Process Clause.¹³³ In the Court’s view, democratic self-governance could protect fundamental rights through “a progressive growth and wise adaptation to new circumstances and situations.”¹³⁴ The Constitution was made to govern people “from many nations and of many tongues,” and it should not “exclude the best ideas of all systems and of every age,” but integrate them into “new and not less useful forms.”¹³⁵ The Supreme Court reasoned that the Due Process Clause encompassed “those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”¹³⁶ But these fundamental principles are better secured by “the right of the people to make their own laws, and alter them at their pleasure.”¹³⁷ Constitutional rights, therefore, are better protected through self-governance and adapting legal systems.¹³⁸

Justice Harlan, in his dissenting opinion in Hurtado, introduced the argument that the Due Process Clause extended against the states the same protections, including grand jury indictments, “which had been imposed upon the general government.”¹³⁹ Due process required a grand jury indictment rather than an indictment from information, which was reserved for misdemeanors. For Justice Harlan, the meaning of due process of law was found in “the Constitution itself” and the “settled usages and modes of proceeding” from the common law.¹⁴⁰ In other words, the Bill of Rights itself declared the fundamental rights.¹⁴¹

Although Justice Harlan lost the incorporation debate in Hurtado, his position began making small inroads in 1897 when the Supreme Court incorporated the Takings Clause against the states.¹⁴² That same year, the Supreme Court also recognized a right to contract.¹⁴³ Since then, due process has come to encompass both the incorporation of fundamental rights and substantive due process protections for individual liberty. In Holden v. Hardy, the Supreme Court analyzed these two conceptions of due process together.¹⁴⁴ For Justice Brown, the incorporation cases—Walker v. Sauvinet, Missouri v. Lewis, and Hurtado v. California—distinguished the “principles of justice which inhere in the very idea of free government” from the “methods by which justice is administered,” which are “subject to constant fluctuation.”¹⁴⁵ Thus, the Constitution should not be construed to prevent self-governance and legislation for the “public welfare.”¹⁴⁶ Providing an example of strict constructionism’s risks, the Supreme Court reiterated that if Congress annexed civil law territories, it should consider leaving “its traditions, laws and systems of administration unchanged.”¹⁴⁷ Only the Constitution’s “fundamental principles” could limit democratic self-governance and accommodation.¹⁴⁸

In Maxwell v. Dow, Justice Peckham reinterpreted the Slaughter-House Cases as standing for the non-incorporation of the Bill of Rights.¹⁴⁹ Citing extensively from the Slaughter-House Cases, the Supreme Court decided, for the first time, that the Privileges or Immunities Clause did not incorporate the Bill of Rights.¹⁵⁰ Meanwhile, following Hurtado v. California, the Supreme Court decided that the rights to grand jury indictment and a twelve-person jury were not within the scope of the Due Process Clause.¹⁵¹ Instead, they are matters to “be determined by the citizens of each State for themselves.”¹⁵² Justice Harlan, once again dissenting, argued that the privileges or immunities of citizens of the United States included the Bill of Rights and that courts should not pick and choose the rights that apply against state governments.¹⁵³

These constitutional arguments regarding the incorporation of constitutional rights in the states echoed the original debates about extending the Constitution to the territories. One year after Maxwell, the Supreme Court had to decide whether the approach to rights in the territories and the states would persist in the United States’ new overseas colonies.

D. The Bill of Rights in U.S. Territories and Overseas Colonies

From the Louisiana Purchase to Dred Scott, the expansion of the Constitution into U.S. territories was a pivotal constitutional inquiry throughout the nineteenth century. After the Spanish-American War, this question gained renewed attention in the Insular Cases.¹⁵⁴ Through the doctrine of territorial incorporation, the Supreme Court decided that in incorporated territories, like Alaska, the Constitution applied ex proprio vigore; although in unincorporated territories, like Puerto Rico and the Philippines, it did not.¹⁵⁵ The Supreme Court had previously recognized the extension of certain provisions of the Bill of Rights to U.S. territories,¹⁵⁶ but in other cases, it applied only the “fundamental limitations” of the Constitution.¹⁵⁷ Thus, by the time the Supreme Court decided the Insular Cases, it had not settled whether the Constitution fully applied in the U.S. territories.¹⁵⁸ Moreover, in the Insular Cases, the Supreme Court extensively cited its holdings in early incorporation cases that certain methods of procedure did not apply in the states.¹⁵⁹ The right of the people to govern themselves and pluralistic accommodation to the territories’ civil law systems justified not extending jury rights, just as in the U.S. states.¹⁶⁰ Justice Harlan, dissenting in the Insular Cases, similarly argued that the Constitution applied in the territories. But neither the majority nor the dissenting opinions provided a justification for imposing a foreign constitutional system on these colonized peoples.

The prevailing constitutional understanding prior to Dred Scott was that the Constitution did not apply ex proprio vigore in the territories. Did the Reconstruction Amendments change this understanding?¹⁶¹ In the 1878 case Reynolds v. United States, the Supreme Court reexamined how far constitutional rights extended in the territories.¹⁶² Despite upholding a grand jury indictment made by fifteen members, as opposed to the minimum sixteen members required in federal prosecutions, the Court decided that the First Amendment applied “everywhere throughout the United States, so far as congressional interference is concerned.”¹⁶³ The unspoken assumption in the Court’s opinion was that Congress had more freedom to shape matters of procedure than to shape fundamental rights. The Court also implied that at least some of the Constitution’s provisions, like the First Amendment, applied on their own force.¹⁶⁴

But eleven years later, in a case involving the Territory of Utah, the Supreme Court refused to extend the Constitution to the territory and, instead, applied the fundamental rights approach it was developing contemporaneously in the states.¹⁶⁵ In the Court’s view, when Congress legislated for the territories, it was limited only by “those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments,” and applying these limitations only through “inference and the general spirit of the Constitution,” rather than “direct application.”¹⁶⁶

Uncertainty about whether the Constitution applied of its own force in the territories continued in American Publishing Co. v. Fisher.¹⁶⁷ The Supreme Court decided that the right to a jury trial in civil cases applied in the Utah Territory because of the Seventh Amendment, Congress, or “all together.”¹⁶⁸ In Fisher, the Supreme Court described as a “matter of dispute” whether the Constitution “operates ex proprio vigore” in the territories.¹⁶⁹ Ironically, two years later, it asserted that the extension of the constitutional right to trial by jury was “no longer an open question.”¹⁷⁰ Justice Harlan, the author of the opinion, failed to mention previous cases emphasizing that Congress extended the right to a jury trial in the territories. However, Justice Harlan was also the sole member of the Supreme Court who believed that the Bill of Rights applied everywhere.¹⁷¹ Thus, before the turn of the twentieth century, it was by no means settled whether the Constitution extended ex proprio vigore to any territory of the United States.¹⁷²

After the Spanish-American War, the United States took control of the Philippines, Guam, and Puerto Rico. White Anglo-Saxons could not settle in these territories, and the United States also believed its new colonies lacked the capacity for self-rule.¹⁷³ In Downes v. Bidwell, one of the Insular Cases, the Supreme Court analyzed, among other things, whether the Constitution applied ex proprio vigore in the overseas colonies.¹⁷⁴ In a plurality opinion for the Court, Justice Brown wrote that because Congress extended the Constitution in previously acquired territories, the Constitution did not apply of its own force.¹⁷⁵ In his view, only “such [constitutional] prohibitions as go to the very root of the power of Congress to act at all, irrespective of time or place” applied in the territories.¹⁷⁶ The Bill of Rights included provisions like that, which Justice Brown called “natural rights.”¹⁷⁷ These rights included freedom of speech, freedom of religion, personal liberty, individual property, due process, and equal protection. But other rights, called “remedial rights,” like the right to vote and Anglo-Saxon “methods of procedure,” did not apply everywhere.¹⁷⁸ Justice Brown, who wrote the opinion in Holden v. Hardy, applied the same distinction he had developed in the early incorporation cases to the overseas colonies.¹⁷⁹ The states and the territories were not limited by all constitutional provisions.¹⁸⁰ Even if Puerto Ricans were “aliens,” they were “to be protected in life, liberty and property.”¹⁸¹ For Justice Brown, therefore, Congress could govern Puerto Rico, but it would be limited by the same constitutional restrictions that applied to previous territories.

While Justice Brown relied on the idea that the Constitution had not been “extended,”¹⁸² Justice White emphasized that the difference was that Puerto Rico had not been incorporated.¹⁸³ Justice White agreed with Justice Brown that the question was not whether the Constitution applied, “but whether the provision relied on is applicable.”¹⁸⁴ Justice White clarified that some “restrictions of so fundamental a nature,” what Justice Brown called natural rights, applied in all territories.¹⁸⁵ But to determine which rights apply in each territory, Justice White focused on each territory’s “relations to the United States.”¹⁸⁶ The crucial question was whether Puerto Rico had been “incorporated into and become an integral part of the United States[.]”¹⁸⁷ Citing Jefferson and the debates over the Louisiana Purchase, Justice White argued that Louisiana was not incorporated as a territory through the treaty-making power.¹⁸⁸ Instead, Congress held the power to incorporate the territory into the Union.¹⁸⁹ Prior to incorporation, the territory could be governed as a “mere dependency,”¹⁹⁰ and Congress was limited by “the right to personal liberty and individual property.”¹⁹¹ But, once incorporated, the inhabitants were recognized with the same “privileges of citizenship and the rights and immunities which pertained to the Northwest Territory.”¹⁹² Before incorporation, therefore, Congress could not “destroy the liberties of the people of Porto Rico,” even though it did not have to recognize all of the rights and privileges of citizenship.¹⁹³ This was not only the constitutional understanding during the Louisiana debates but also the distinction between fundamental rights and “all the rights” of citizens prevailing in the states.¹⁹⁴

Unsurprisingly, Justice Harlan dissented in Downes, as he did in the early incorporation cases.¹⁹⁵ Instead of asserting that “Congress possesses powers outside of the Constitution,” Justice Harlan emphasized that the United States had a written constitution with enumerated powers.¹⁹⁶ Because Congress “is the creature of the Constitution,”¹⁹⁷ it could not be bound by some provisions and not others.¹⁹⁸ Even if the United States wished to become a “world power,” it needed to do so constitutionally.¹⁹⁹ Throughout its history, the United States had, and could have, what one contemporary described as “constitutional colonies.”²⁰⁰ Justice Harlan was not against imperialism itself, but he rejected the notion that the courts could decide which constitutional provisions applied in the territories. Constitutional rights applied everywhere, whether in a state or a colony.

These debates focused on constitutional interpretation, but little was said about the undemocratic nature of extending a foreign constitution to a colony.²⁰¹ Because Downes did not concern constitutional rights, the Supreme Court did not resolve the tensions between rights and democracy in a colonial setting. In future cases, the Supreme Court followed the same pluralistic approach to rights present in the early incorporation cases but declined to adopt their democratic values. In the overseas colonies, legal pluralism coexisted with colonialism rather than democratic self-governance.

When the Supreme Court addressed the extension of constitutional rights in the overseas colonies, it abandoned the democratic emphasis that allowed the people themselves to have the final say on the application and scope of constitutional rights. For example, in Hawaii v. Mankichi, the Court considered whether a 9-3 jury verdict, rather than a unanimous 12-0 verdict, was unconstitutional in Hawaiʻi, a U.S. territory at the time.²⁰² Justice Brown, who wrote the opinion for the Court, once again distinguished between “two rights”: those that are “fundamental in their nature” and those that are “merely a method of procedure.”²⁰³ Since a verdict of only nine jurors was “suited to the conditions of the islands,” the Supreme Court refused to invalidate the municipal legislation.²⁰⁴ Justice White, concurring, argued that because Hawaiʻi was not incorporated until 1900, only the Constitution’s “fundamental provisions . . . were by their own force applicable to the territory.”²⁰⁵ Justices Brown and White, therefore, adopted Maxwell’s distinction between procedural and fundamental rights.²⁰⁶ However, Justice Brown extended this distinction to all territories (since it was up to Congress to extend the Constitution),²⁰⁷ while Justice White limited it to the unincorporated territories.²⁰⁸ Similarly, in Dorr v. United States, the Supreme Court denied that the right to a jury trial was fundamental in the Philippines.²⁰⁹ In each of these cases, Justice Harlan again dissented, citing his views in Hurtado, Thompson, and Maxwell.²¹⁰ Each justice sought a one-size-fits-all approach to the question of constitutional rights in the states and the overseas colonies, while concealing the colonial premises of their decisions.

In Rassmussen v. United States, the Supreme Court declared a federal statute governing the U.S. territories unconstitutional.²¹¹ The Code for Alaska, which was a U.S. territory at the time, allowed six-member juries for misdemeanor trials.²¹² Each justice agreed that this was unconstitutional. Their disagreements—over what in this case is called the “doctrine of incorporation”—illustrate what would eventually become known as the “doctrine of territorial incorporation.”²¹³ Justice White, long concurring, now wrote the Court’s opinion that when Congress granted citizenship to the inhabitants of the Alaska territory, it had incorporated the inhabitants’ land into the union.²¹⁴ Although prior decisions focused on the constitutional rights of unincorporated territories, this was the first time the Court determined the status of constitutional rights in incorporated territories.²¹⁵ In earlier cases, as we have seen, the Court expressed ambivalence toward whether the Constitution applied of its own force in the territories.²¹⁶ For Justice White, however, these cases stood for the proposition that in the incorporated territories, the Constitution had “inherent operation” and that “acts of Congress purporting to extend the Constitution were considered as declaratory.”²¹⁷ Justice Brown, now concurring, defended the old constitutional understanding of Jefferson and Webster: “Congress in dealing with newly-acquired territory is unfettered by the Constitution, unless it formally or by implication extends the Constitution to it . . . .”²¹⁸ Since there was no definition of incorporation, the “only true test was whether Congress intended to apply it or not in the particular case.”²¹⁹ What was disruptive about the doctrine of incorporation was not that fundamental rights alone applied in the unincorporated territories, but that, for the first time, all the rights of citizens applied ex proprio vigore in the incorporated territories.

In Balzac v. Porto Rico, the Supreme Court unanimously pronounced this doctrine of incorporation the “settled law of the court.”²²⁰ Jesús Balzac, a newspaper editor, demanded a Sixth Amendment jury trial after local authorities charged him with criminal libel.²²¹ The case challenged whether Puerto Rico became an incorporated territory—where the Sixth Amendment applies—after Congress extended U.S. citizenship to its inhabitants.²²² The Supreme Court concluded that Congress did not intend to incorporate Puerto Rico.²²³ And since the right to a jury trial was not considered a fundamental right, it was not extended to the unincorporated territory of Puerto Rico.²²⁴

This same standard was used in the early incorporation cases, but the connection went unnoticed as the democratic and pluralistic approach to rights was distorted to govern overseas colonies. Balzac, for example, denied incorporating the right to a jury trial because of the different legal traditions in common law and civil law jurisdictions.²²⁵ For the Supreme Court, Filipinos and Puerto Ricans, “trained to a complete judicial system which knows no juries, living in compact and ancient communities, with definitely formed customs and political conceptions, should be permitted themselves to determine how far they wish to adopt this institution of Anglo-Saxon origin, and when.”²²⁶ While there was a clear racial and imperial logic to this,²²⁷ unincorporated territories and state governments were limited only by fundamental rights. Colonized peoples could decide how Anglo-Saxon methods of procedure fit within their legal systems.²²⁸

While the distinction made in Balzac was a pretext for racist ideology, democratic self-governance and respect for different cultures and legal traditions are defendable on the grounds of self-determination.²²⁹ As the Supreme Court renewed the process of incorporation in the states in the twentieth century, could the democratic and pluralistic approach to rights survive in the territories? Or would the Supreme Court continue a one-size-fits-all approach to the question of constitutional rights?

II. Fundamental Rights: One-Size-Fits-All?

This Part explores two current judicial approaches to the extension of constitutional rights in U.S. territories: the fundamental-is-fundamental approach and the fundamental-is-not-fundamental approach. The first is influenced by the selective incorporation of the Bill of Rights.²³⁰ In Palko v. Connecticut, the Supreme Court held that only those fundamental rights at “the very essence of a scheme of ordered liberty” would be gradually incorporated against the states through the Due Process Clause.²³¹ In Palko’s aftermath, Justice Frankfurter and Justice Black articulated two contrasting constitutional visions: Justice Frankfurter emphasized democratic self-governance and legal pluralism,²³² while Justice Black focused on constitutional interpretation.²³³ These arguments shaped the extension of the Bill of Rights not only in the states but also in the territories. Federal courts often held that a fundamental right in the states was also a fundamental right in Puerto Rico.²³⁴

The second judicial approach is influenced by Reid v. Covert.²³⁵ In Reid, Justice Black denounced the Insular Cases and extended the jury trial right to civilians abroad.²³⁶ However, in a concurring opinion, Justices Frankfurter and Harlan II wrote that certain constitutional protections did not automatically apply in acquired territories.²³⁷ Following Justices Frankfurter and Harlan II, federal courts concluded that a right could be fundamental in the states but not necessarily in American Samoa or the Northern Mariana Islands.²³⁸ The ways in which these two approaches interact with the Insular Cases are distinct: The first one aims to overrule them in the name of equal rights while the second one seeks to repurpose them to protect culture and self-determination.

A. Selective Incorporation and U.S. Territories: Fundamental = Fundamental

The Insular Cases adopted the “fundamental rights” approach of the early incorporation cases, but the Supreme Court had not yet formally incorporated the Bill of Rights at that point. In Twining v. New Jersey, for example, the Supreme Court declined to incorporate the Fifth Amendment’s right against self-incrimination, but it left open the potential to extend rights deemed “fundamental in due process.”²³⁹ The Supreme Court defended the right of the people to govern themselves from a “forced construction of the Federal Constitution,”²⁴⁰ and it asserted that the right against self-incrimination was not found “outside the domain of the common law.”²⁴¹ Under this reading, a right could not be “essential to due process,” if its denial “is the practice in the civil law.”²⁴² The Supreme Court, then, continued to apply a democratic and pluralistic conception of rights.

In Palko v. Connecticut, the Supreme Court modified its incorporation approach, but it still refused to incorporate certain rights, such as the protection against double jeopardy.²⁴³ Some enumerated rights—freedom of speech, freedom of religion, and freedom of the press—applied against the states through the Due Process Clause.²⁴⁴ Other rights, however, including trial by jury and grand jury indictment, did not because they were “not of the very essence of a scheme of ordered liberty.”²⁴⁵ According to Justice Cardozo, only a “[f]ew would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them.”²⁴⁶ This idea of ordered-liberty rights, akin to the rights of “all free government,”²⁴⁷ left room for democratic and pluralistic evaluations of how different legal systems safeguard rights.

With selective incorporation looming, what was to be the role of constitutional rights after the Lochner Era?²⁴⁸ Two justices appointed to defend the New Deal, Justices Black and Frankfurter, took different approaches to the relationship between constitutional rights and democracy. In the 1940s, the Supreme Court was asked to overrule Twining in Adamson v. California, but a 5-4 majority declined to overturn precedent, and refused to incorporate the right against self-incrimination..²⁴⁹ For Justice Frankfurter, the justices who decided Hurtado and Palko were “mindful of the relation of our federal system to a progressively democratic society.”²⁵⁰ Requiring “procedural arrangements” (e.g., grand jury indictment, civil jury trials) based on “narrow or provincial” views of what is essential to justice would be “to confound the familiar with the necessary.”²⁵¹ Justice Frankfurter’s approach to incorporation was the prevailing democratic and pluralistic approach.

Meanwhile, Justice Black followed the dissenting approach of Justice Harlan in Hurtado and Twining.²⁵² Citing the history of the Privileges or Immunities Clause, Justice Black argued that the Fourteenth Amendment incorporated the first eight amendments. The fundamental rights approach, which Justice Black associated with natural law, would encourage justices to substitute “the language of the Bill of Rights” with their “own concepts of decency and fundamental justice.”²⁵³ While Justice Black relied primarily on the Privileges or Immunities Clause, he also considered that, under the logic of Palko, the right against self-incrimination was fundamental and applicable against the states through the Due Process Clause.²⁵⁴ If Justice Frankfurter was for a democratic and pluralistic approach to rights, Justice Black was for redeeming the text and history of the Constitution.

Within the next three decades, the Supreme Court, led by Justice Black’s dissent in Adamson, incorporated most of the rights guaranteed by the Bill of Rights. However, it did so through the Due Process Clause (protecting “any person”), as opposed to the Privileges or Immunities Clause (protecting “citizens of the United States”).²⁵⁵

In Duncan v. Louisiana, the Supreme Court incorporated the right to a jury trial, the paradigmatic method of procedure, against the states.²⁵⁶ While Palko’s approach to rights was determining whether “a civilized system could be imagined that would not accord the particular protection,” the “new approach” was determining whether the right was fundamental to “an Anglo-American regime of ordered liberty.”²⁵⁷ The Supreme Court thus abandoned the pluralistic carefulness of an era where territorial expansion was still possible. And while Justice Black was inspired by Justice Harlan, Justice Harlan’s own grandson, Justice John Marshall Harlan II, was influenced by Justice Frankfurter’s legacy on the Court. For Justice Harlan, the Fourteenth Amendment “was meant neither to incorporate, nor to be limited to, the specific guarantees of the first eight Amendments.”²⁵⁸ Quoting Mankichi, one of the Insular Cases, Justice Harlan II wanted to rescue the distinction between fundamental rights and methods of procedure.²⁵⁹ The virtue of the earlier incorporation approach was that it rejected “nationwide uniformity in details” and left room for “state experimentation and disparity.”²⁶⁰ Justice Fortas explored an alternative to both Justice Black and Justice Harlan II’s approaches: He incorporated the right to a jury trial but not the rule of unanimous verdicts from twelve jurors.²⁶¹ Four years later, through Justice Powell’s concurring opinion and controlling vote in Apodaca v. Oregon, the Court adopted the position that the right to a jury trial did not include a right to a unanimous verdict.²⁶² But this partial incorporation was only a drop in an ocean of total incorporation decisions. The pluralistic and democratic approach to rights was abandoned for a symmetric, Anglo-American explosion of rights.²⁶³

Through the doctrine of selective incorporation, the Supreme Court expanded the rights it considered fundamental. Does this mean that those same rights became “fundamental” through the doctrine of territorial incorporation? In Puerto Rico, both federal courts and constitutional scholars understood the fundamental rights under the selective incorporation doctrine as applying there as well.²⁶⁴ However, by the time selective incorporation was underway, Puerto Rico had already adopted a constitution with a similar bill of rights, leaving out only a few methods of procedure.²⁶⁵ As a result, local and federal courts did not have many opportunities to directly address whether stateside fundamental rights were considered “fundamental” in Puerto Rico too.

In 1953, one year after Puerto Rico ratified its constitution, the First Circuit held in Mora v. Mejias that the Due Process Clause continued to apply in Puerto Rico.²⁶⁶ However, the court deemed it “unnecessary” to decide whether the Fifth Amendment or the Fourteenth Amendment applied.²⁶⁷ The Supreme Court followed this either-or approach in Calero-Toledo v. Pearson Yacht and Examining Board v. Flores de Otero.²⁶⁸ However, Chief Justice Rehnquist’s dissent in Flores de Otero, rejected this method and argued that “it is quite possible that neither provision operates as a direct limitation upon the authority” of Puerto Rico’s elected legislature: The Fourteenth Amendment applies to states, and the Fifth Amendment applies to Congress.²⁶⁹ In his view, the local legislature should be limited only by its constitution or the restrictions directly extended by Congress.²⁷⁰ He did not believe that the Constitution applied in its entirety ex proprio vigore.²⁷¹

These cases concerned due process; they did not address other rights incorporated through the Fourteenth Amendment’s Due Process Clause, such as freedom of speech or the right to trial by jury. They implied, however, that the fundamental rights included in due process, whether substantive or incorporated, applied in Puerto Rico. Federal courts found that the fundamental rights recognized in the states were also fundamental in Puerto Rico. In Montalvo v. Colon, the U.S. District Court of Puerto Rico decided that Roe v. Wade applied to the territory.²⁷² The court noted similarities between the doctrine of selective incorporation and the Insular Cases: Both concern the application of “fundamental rights.”²⁷³ Therefore, courts should “assume” that a right deemed fundamental for purposes of the Fourteenth Amendment is “applicable to Puerto Rico.”²⁷⁴ In a footnote, however, the three-judge court noted that one of the judges, Judge Coffin, “would not foreclose a measure of flexibility in the sensitive federal-Commonwealth relations” and left open “the possibility of recognizing a difference in rights existing in the states vis-a-vis Puerto Rico.”²⁷⁵ But this pluralistic cautiousness, reminiscent of the earlier incorporation approach,²⁷⁶ did not preclude the recognition of a woman’s right to terminate her pregnancy. Meanwhile, in Torres v. Delgado, the district court concluded that since Duncan recognized the right to trial by jury as fundamental, it was also a fundamental right in Puerto Rico.²⁷⁷ Even though “consideration must be given to the unique history and status of Puerto Rico, rights applicable to the states under the Fourteenth Amendment will be found similarly applicable to the Commonwealth.”²⁷⁸ A right that is fundamental in the states must also be fundamental in Puerto Rico.

The Supreme Court soon followed the fundamental-is-fundamental approach of Calero and Flores de Otero in cases beyond the Due Process Clause. In Torres v. Puerto Rico, it decided that Puerto Rico’s law enforcement must comply with the “fundamental Fourth Amendment.”²⁷⁹ Justice Brennan, concurring, added that the Insular Cases were “not authority for questioning the application of the Fourth Amendment—or any other provision of the Bill of Rights—to the Commonwealth of Puerto Rico in the 1970’s.”²⁸⁰ Similarly, in Rodriguez v. Popular Democratic Party, the Supreme Court reasoned that voting rights in Puerto Rico “are constitutionally protected to the same extent as those of all other citizens of the United States.”²⁸¹ In all of these cases, the explosion of rights during the 1960s and 1970s extended to Puerto Rico.

This symmetric approach meant that Puerto Rican statutes met the same fate as their state counterparts. For instance, in El Vocero v. Puerto Rico, the Supreme Court held that a Puerto Rican statute that allowed preliminary hearings to occur in private was irreconcilable with Press-Enterprise, a case involving a California statute.²⁸² Because the free speech clause “fully applies to Puerto Rico,” the Court’s decision in Press-Enterprise applied to both the states and Puerto Rico, regardless of “Puerto Rican tradition” protecting the right to privacy.²⁸³ For the Supreme Court, the local defense of tradition was “misplaced.”²⁸⁴ The rights involved in these cases—due process, free speech, privacy, and freedom from unreasonable searches and seizures—are all recognized in the Constitution of Puerto Rico.²⁸⁵ Therefore, the Supreme Court was not concerned about the extension of these rights in the territories but instead focused on their scope.²⁸⁶

These judicial opinions about Puerto Rico underscored the island’s similarities with the states. The cases focused less on the congressional extension of rights, an approach federal courts had often applied to Guam and the Virgin Islands.²⁸⁷ Because of this judicial approach, constitutional scholars from Puerto Rico asserted that a right deemed fundamental against the states through the Fourteenth Amendment was also fundamental in Puerto Rico.²⁸⁸ Any right incorporated against the states through the Fourteenth Amendment would also apply in Puerto Rico, whether through the Fifth Amendment or the Fourteenth Amendment. In other words, if a right is not fundamental in the states, it cannot be fundamental in Puerto Rico.²⁸⁹ But when a right is fundamental in the states, it must be fundamental in Puerto Rico.²⁹⁰ In Puerto Rico, then, the selective incorporation doctrine, through its similarities with the approach of the Insular Cases, changed what is considered a fundamental right and who gets to decide what is a fundamental right. Debates surrounding constitutional interpretation within the framework of Anglo-American liberty have overshadowed the potential for embracing a democratic and pluralistic approach to rights.

B. Reid v. Covert and the U.S. Territories: Fundamental ≠ Fundamental

While selective incorporation transformed what was a fundamental right in Puerto Rico, federal courts followed a different approach for the territories in the Pacific—American Samoa, Guam, and the Northern Mariana Islands. If the decisions concerning Puerto Rico adopted the constitutional interpretation arguments of Justice Black and the first Justice Harlan, the judicial opinions addressing the remaining territories embraced the democratic and pluralistic considerations of Justice Frankfurter and the second Justice Harlan. A fundamental right in the states was a fundamental right in Puerto Rico. But in American Samoa, Guam, and the Northern Mariana Islands, a fundamental right of the Fourteenth Amendment was not necessarily a fundamental right in the territories.²⁹¹ The origins of this fundamental-is-not-fundamental approach, which considers the pluralistic differences among territories, track back to Justice Frankfurter and Justice Harlan II’s reinterpretation of the Insular Cases in Reid v. Covert.²⁹²

There, the Court considered whether Congress could authorize military trials against the wives of members of the armed forces without a jury trial. In a prior case, the Supreme Court relied on the Insular Cases to conclude that Congress did not need to provide a trial by jury because it was not a fundamental right. Since these rights were not fundamental, Congress could authorize military trials against the spouses of military personnel without a jury trial.²⁹³ In Reid v. Covert, the Supreme Court reversed itself in a plurality opinion by Justice Black and two concurring opinions by Justices Frankfurter and Harlan II.²⁹⁴ In these opinions, the justices revised their arguments for and against extending rights in the states. They also addressed the question of constitutional rights outside the continental United States.

In his plurality opinion, Justice Black argued that the United States “can only act in accordance with all the limitations imposed by the Constitution.”²⁹⁵ Echoing his arguments in Adamson, Justice Black criticized the Court’s decision in Dorr, one of the Insular Cases, for suggesting that only fundamental rights applied abroad. Justice Black believed this allowed courts to “pick[] and choos[e]” among constitutional provisions.²⁹⁶ For Justice Black, the Insular Cases were inconsistent with previous territorial cases, like Thompson v. Utah, which extended the Bill of Rights everywhere.²⁹⁷ He would, therefore, distinguish the Insular Cases as involving “the power of Congress to . . . govern temporarily territories with wholly dissimilar traditions and institutions.”²⁹⁸ These cases should not “be given any further expansion,” for the idea that the Bill of Rights does not apply when inconvenient would “destroy the benefit of a written Constitution.”²⁹⁹ While Senator Calhoun employed this argument for defending the extension of slavery in the territories, Justice Black, following Justice Harlan’s dissents in the Insular Cases, embraced the argument that the Constitution’s written form, not individual justices, determined how rights applied outside the continental United States.

While Justice Black saw a break in the approach to rights in cases like Thompson and Dorr, Justice Frankfurter recognized a doctrinal throughline connecting the cases involving Florida and Utah to the cases involving Puerto Rico and the Philippines.³⁰⁰ This long view acknowledged that “constitutional restrictions on the Government did not automatically apply” even in those former territories.³⁰¹ The early twentieth century, then, was not the first time the United States acquired territories where “many of our laws and customs found an uncongenial soil because they ill accorded with the history and habits of their people.”³⁰² Contrary to Justice Black, Justice Frankfurter recognized the uncertainty in the rights approach of these nineteenth-century territories, contrasting cases like Thompson, which Justice Black understood as applying the Bill of Rights everywhere, with Late Corporation, which extended only the “fundamental limitations.”³⁰³ For Justice Frankfurter, who was also against extending the Fifth and Sixth Amendments to the states,³⁰⁴ Justice Black’s approach could frustrate congressional powers under the Territorial Clause.³⁰⁵ Instead, the “‘fundamental right[s]’ test” of the Insular Cases could “provide an illustrative method for harmonizing” constitutional rights and territorial government.³⁰⁶

Justice Harlan II was the only one who changed sides in Reid. In Reid, Justice Harlan II disowned the Court’s prior interpretation of the Insular Cases.³⁰⁷ But he did not consider them “historical anomalies,” like Justice Black.³⁰⁸ Instead, much like Justice Frankfurter, Justice Harlan II carved out a path forward for reconciling constitutional rights and pluralistic territorial government. For Justice Harlan II, there are constitutional rights “which do not necessarily apply in all circumstances in every foreign place.”³⁰⁹ In some circumstances, extending constitutional rights (for instance, the right to trial by jury) may be “impractical and anomalous.”³¹⁰ Under this retelling, the Insular Cases held that “the particular local setting, the practical necessities, and the possible alternatives are relevant to a question of judgment” as to whether Congress needed to extend the right to trial by jury overseas.³¹¹ If Congress did not extend a constitutional right to a territory, federal courts could consider these pluralistic considerations to decide whether the right applied.³¹² Justice Harlan II’s opinion in Reid v. Covert advocates for examining the pluralistic reasons why a constitutional right fundamental in the states may not be fundamental in a particular territory—the fundamental-is-not-fundamental approach.³¹³

If the approach to rights discussed in Section I.C was pluralistic and democratic, then in Justice Harlan’s concurrence in Reid the pluralistic outweighs the democratic.³¹⁴ Congress could decide, over the desires of the territorial legislatures, to extend a constitutional right, even if the Constitution did not require it. The territorial legislatures are free to decide the validity only of rights that Congress chose not to extend, such as grand jury indictment or the civil jury trial. Only when Congress declined to extend a constitutional right could territorial and federal courts evaluate pluralistic considerations to determine whether the territorial legislature (or Congress) violated a fundamental right.

The incorporation of the right to trial by jury in Duncan v. Louisiana led federal courts to revisit whether that right, while fundamental in the states, was fundamental in the territories. In King v. Morton, the D.C. Circuit decided that Duncan did not overrule Balzac, which declined to recognize that the right to a jury trial was a fundamental right.³¹⁵ Instead, due to the pluralistic considerations of American Samoa, including the “customs and traditions of which the criminal law takes no notice,” it concluded that it may be “impractical and anomalous” to recognize the right to trial by jury.³¹⁶

Although Justice Harlan’s impractical and anomalous approach influenced the D.C. Circuit, the Ninth Circuit followed Justice Frankfurter’s concurrence in Northern Mariana Islands v. Atalig.³¹⁷ The Atalig Court held that the right to trial by jury could be fundamental in the states but not in the Northern Mariana Islands.³¹⁸ The Ninth Circuit ruled that the Bill of Rights did not apply ex proprio vigore in the territories and that the Covenant of the Northern Mariana Islands provided the last word on the application of the Constitution.³¹⁹ Applying the Insular Cases and Justice Frankfurter’s opinion in Reid, the Court concluded that, despite Duncan, the right to trial by jury was not a fundamental right.³²⁰ Although both the doctrine of incorporation (states) and the doctrine of territorial incorporation (territories) use the “label ‘fundamental rights,’” they had distinct purposes.³²¹ In the states, fundamental rights were those associated with an “Anglo-American regime of ordered liberty,”³²² but in the territories, they were limited to those that are “the basis of all free government.”³²³ Otherwise, applying Duncan’s new approach to fundamental rights would require federal courts to “extend almost the entire Bill of Rights to such territories.”³²⁴ This distinction between fundamental rights, which the Ninth Circuit attributed to the Insular Cases, helped to “avoid imposition of the jury system on peoples unaccustomed to common law traditions.”³²⁵

Atalig, like Morton before it, exemplified how the pluralistic approach to rights continued in the territories, even after Duncan abandoned it. But where Morton focused on whether the extension of the right would be impractical or anomalous, Atalig continued the original conception of fundamental rights. Faithful to the idea of fundamental-is-not-fundamental, however, these two cases rejected Duncan’s parochial conception of fundamental rights. Instead, they asked whether the right involved was “fundamental” in an “international sense.”³²⁶

The fundamental-is-fundamental approach adopted for Puerto Rico contrasts sharply with the fundamental-is-not-fundamental approach for the Northern Mariana Islands, American Samoa, and Guam. While the one person, one vote principle applied in Puerto Rico, federal courts did not consider it a fundamental right in the Northern Mariana Islands.³²⁷ While Obergefell applied in Puerto Rico,³²⁸ the legality of same-sex marriage remains an open question in American Samoa.³²⁹ While the U.S. District Court of Puerto Rico considered the right to abortion a fundamental right in Puerto Rico, Congress extended the right to abortion to Guam through the Fourteenth Amendment without deciding whether it was a fundamental right.³³⁰ At the turn of the twentieth century, fundamental rights provided a one-size-fits-all approach to the extension of constitutional rights in the states and territories. Now, however, fundamental rights apply differently not only in the territories and the states but also among territories.³³¹ This does not mean that stateside fundamental rights never apply in the territories or that they can override a congressional extension of a constitutional right.³³² But federal courts relied on the Insular Cases and Reid v. Covert to answer difficult questions about colonial governance, the protection of cultures, the imposition of legal systems, and self-determination in a postcolonial world.

This pluralistic approach to constitutional rights in the territories repurposes the Insular Cases.³³³ Legal scholars acknowledge the racist and imperialist underpinnings of the Insular Cases.³³⁴ But following the reinterpretation of these cases by Justice Harlan II, federal courts have leveraged the Insular Cases to avoid imposing foreign legal systems upon U.S. territories while protecting the territories’ cultures and access to self-determination.³³⁵ For legal scholar Stanley K. Laughlin, the best-known defender of this repurposing approach, a constitutional right might be fundamental in the states without being fundamental in the territories if its application is impractical or anomalous.³³⁶ Repurposing the Insular Cases through Justice Harlan II’s concurrence in Reid is a way to defend the fundamental-is-not-fundamental approach to constitutional rights in the territories.

These days, however, overruling the Insular Cases rather than repurposing them has more friends in legal scholarship, Congress, and the federal courts.³³⁷ For these legal scholars, most notably Christina D. Ponsa-Kraus, there is no need to repurpose the Insular Cases to protect culture and land in the territories since traditional standards of review provide adequate means for accommodation.³³⁸ But protecting culture, on its own, is not enough to suspend “the laws of constitutional physics.”³³⁹ Similarly, Justice Gorsuch recently described repurposing as “a revisionist account of the Insular Cases” to protect “traditional cultures.”³⁴⁰ For Justice Gorsuch, determining which provisions of the Constitution apply in the territories must depend on the text, original understanding, and history of those provisions, not upon the “fictions of the Insular Cases.”³⁴¹ An “unschooled assessment of a Territory’s local customs or contemporary currents in public opinion,” is not enough to “deny constitutionally protected individual rights.”³⁴² In the past, local customs and democratic governance served as a restraint against the judicial imposition of individual rights within states and territories.³⁴³ At present, however, the Supreme Court is considering a uniform approach but in the opposite direction: Individual rights will apply equally everywhere.

III. The Future of Constitutional Rights in U.S. Territories

Debates about the extension of constitutional rights in the states and territories have generated arguments about the written character of the Constitution, enumerated powers, and who determines fundamental rights. Part I provided an intellectual history of these arguments by tracking the parallels between debates concerning the territories,³⁴⁴ states,³⁴⁵ and overseas colonies.³⁴⁶ Part II focused on how past debates about rights influenced the two present approaches to constitutional rights in the U.S. territories. This third and final Part considers the future of fundamental rights in the American empire by developing a normative argument for pluralism and democratic self-governance in U.S. territories.

First, I propose a form of democratic pluralism that empowers colonized peoples to decide whether and how constitutional rights should apply to them.³⁴⁷ I then explore how this normative assessment fits within existing constitutional doctrine.³⁴⁸ Finally, I use Puerto Rico as a case study to apply the democratic and pluralistic approach to local debates about gun control, criminal procedure, and campaign finance reform.³⁴⁹

A. Democratic Pluralism for Colonized Peoples

A normative approach to constitutional rights in U.S. territories must first consider who are the nomos, the “autonomous interpretive communities” claiming or resisting these rights.³⁵⁰ Each of the five U.S. territories—Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, and the U.S. Virgin Islands—constitute a nomos as territorially defined islands with distinct historical narratives, legal systems, and cultures. While each territory is its own nomos, they are now interconnected through the American empire. Accordingly, this is a normative approach to constitutional rights by and for these colonized peoples.³⁵¹ Political philosophy has long debated how cultures and stateless nations, like Quebec, challenge a liberal understanding of rights.³⁵² Some theorists argue that “[g]iven the absence of strong territorially based minorities, the American union has never faced a ‘Quebecan’ challenge.”³⁵³ But a Quebecan challenge already exists in the hidden American empire.³⁵⁴ The U.S. territories are territorially based minorities challenging constitutionalism, rights, and federalism.³⁵⁵ This challenge requires a normative answer, not only a doctrinal one,³⁵⁶ that considers pluralism, democratic self-governance, and the colonial imposition of laws.

Approaching constitutional rights from the perspectives of colonized peoples allows us to see what legal liberalism usually ignores.³⁵⁷ Ideals of neutrality, equality, and the rule of law require judges to develop constitutional rights through legal reasoning.³⁵⁸ Through constitutional interpretation and reasoned elaboration, liberal judges can find the appropriate set of individual rights that should apply to all citizens.³⁵⁹ Citizenship becomes a source of rights, or in the words of Chief Justice Warren, “the right to have rights.”³⁶⁰

The “ideology of legal centralism,” under which law is “uniform for all persons,” replaced the democratic and pluralistic conception of constitutional law and rights.³⁶¹ As critics pointed out, “liberal legalism” required “the equal treatment of all citizens before the law” and reinforced the separation between law and politics.³⁶² If liberal citizenship stands for equal rights under the law,³⁶³ then U.S. citizens living in territories are denied the same rights as their continental brethren.³⁶⁴ The responsibility for addressing unequal rights falls to federal courts through their interpretation of constitutional law.³⁶⁵ This framing, which has restricted political discourse in the U.S. territories, neglects the normative limitations of legal liberalism. It fails to acknowledge that many groups are differently situated, including colonized peoples.³⁶⁶

Liberal blindness to difference is not only an oversight but inherent in the liberal notion of equality. As Iris Marion Young wrote, this equality is “conceived as sameness,” meaning that the law must “apply to all in the same way” and become “blind to individual and group differences.”³⁶⁷ Liberalism’s once emancipatory potential for equal rights and universal citizenship was twisted into an instrument to “perpetuate rather than undermine oppression.”³⁶⁸ Applied to colonized peoples, the liberal approach to rights perpetuates oppression because it limits decolonization³⁶⁹ and reduces land protections.³⁷⁰ Rather than equality through extending and enforcing individual rights, U.S. territories should have “special rights” that consider cultural differences.³⁷¹

Accommodation for group differences led to a pluralistic approach to rights that emphasized “group-differentiated rights” over individual rights.³⁷² Against a liberalism that views constitutional rights as comprehending an “identical basket of rights and immunities,”³⁷³ multiculturalism views “universal” individual rights as a “reflection of one hegemonic culture.”³⁷⁴ For Charles Taylor and Will Kymlicka, it is necessary to protect minority cultures against assimilation and imposition because culture shapes identity formation and provides “alternative models of social organization.”³⁷⁵ Instead of a “centralized judicial review” where individual rights apply the same way everywhere, Kymlicka argues that if there are differences in fundamental principles then national minorities should be exempt from the “federal bills of rights and judicial review.”³⁷⁶ If we take cultural pluralism as a normative value, Puerto Rico and the other U.S. territories should demand accommodation when differences arise concerning constitutional rights.³⁷⁷

But protecting culture should not be the singular consideration of a normative approach to rights in the U.S. territories. According to the feminist critique of multiculturalism, arguments for accommodating minority cultures can lead to a cultural reification that restricts the potential for real change.³⁷⁸ Culture should not be seen as frozen in time.³⁷⁹ When culture is defended as apolitical to get legal accommodations, it repeats the liberal mistake of trying to separate law and politics. The reality is that, in the words of Seyla Benhabib, “[c]ulture is political.”³⁸⁰ Culture is not a value to be protected at all costs because culture can be tied to oppression, especially against women and children.³⁸¹ Any normative assessment must consider the “internal differences” between members of a culture or territory, especially if vulnerable groups would bear the burden of territorial accommodation.³⁸² For the state to balance not only the accommodation of the minority group but also the individual members, Ayelet Shachar proposes designing different “legal-institutional mechanisms,”³⁸³ including “joint governance.”³⁸⁴ To that end, a normative approach to rights in the territories must recognize: culture as “dynamic”;³⁸⁵ that arguments for accommodation should not end political debates;³⁸⁶ and that the territories and federal government must design institutional arrangements that address the problem of internal differences.

The feminist critique of multiculturalism is most convincing when addressed to religious groups within a state or immigrant community.³⁸⁷ Pluralism, however, is not the only value at stake in a normative approach and the feminist critique does not fully address the claim among colonized peoples to democratic self-governance³⁸⁸ and self-rule.³⁸⁹ A normative approach to rights in the U.S. territories must be both pluralistic and democratic. If we take self-rule seriously, the peoples living in the territories should decide for themselves whether and how constitutional rights apply there.³⁹⁰ Legal frameworks for protecting culture, such as land alienation restrictions, should not separate law and politics. Instead, culture should be part of the democratic dialogue.³⁹¹ Territorial legislatures should consider not only the political views of the culture’s representatives but also the perspectives of cultural dissidents or even outsiders. Doing so ensures that the political outcome represents the views of the democratic community.

A democratic and pluralistic approach will benefit not only the territories but also the broader conversation about rights and democracy. Through this approach, we can see that our fundamental rights—freedom of speech, freedom of religion, the right to due process—“admit of various normative reconstructions.”³⁹² The U.S. territories can be, in Justice Brandeis’s famous formulation, laboratories of democracy to “try novel social and economic experiments.”³⁹³ Experimentation can be defended in cultural terms, such as accommodations to preserve language or to protect indigenous land. But the democratic and pluralistic approach also extends to legislation—for example, a rule allowing a preliminary hearing instead of a grand jury—that reflects the political community’s collective deliberation on how to guarantee due process.

The main criticism of this democratic approach in the territories is that constitutional rights should not be left to the will of majoritarian political institutions.³⁹⁴ “The very purpose of a Bill of Rights,” in the words of Justice Robert H. Jackson, “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”³⁹⁵ Regardless of the merits of this approach in the states,³⁹⁶ there are three objections to this view of judicial review in the U.S. territories.

First, if we think of a U.S. territory as its own self-governing community, nothing stops territorial courts from protecting the Bill of Rights or local rights.³⁹⁷ The second objection is that we could create a narrow understanding of fundamental rights, a floor, that territories cannot abridge through majority vote. Floor-setting is the standard move for multicultural liberals who want to reconcile multiculturalism and liberalism by distinguishing “fundamental rights” from all “privileges and immunities.”³⁹⁸

A weak form of democratic pluralism for colonized peoples could consider certain fundamental rights to apply in a territory regardless of the local population’s wishes; but to truly respect pluralism and democratic self-governance, fundamental rights cannot mean all rights.³⁹⁹ Fundamental rights should be limited to the basic liberties “that no society that did not protect them would count as democratic,” including “freedom of speech and the freedom to take a part in public life.”⁴⁰⁰ But societies should have a “degree of discretion in determining the detailed specification of the basic liberties it protects.”⁴⁰¹ Fundamental rights, narrowly understood, are compatible with a democratic and pluralistic approach to the rights of the territories. Accordingly, Congress and federal courts should interfere only when, through those policies, the territory would cease being democratic in an international sense.⁴⁰²

The third and most important objection to applying Justice Jackson’s theory of judicial review in the territories is that imposing judicial interpretation of rights will only reproduce colonialism. The danger of an expansive list of fundamental rights, as we have now with the selective incorporation doctrine, is that it continues a colonial legacy of imposing laws on colonized people.⁴⁰³ If European imperialism was a “legal enterprise,”⁴⁰⁴ a normative approach to constitutional rights should consider not only pluralism and democratic self-governance but also decolonization as a normative value. A common response to cultural arguments is that territories like American Samoa or the Northern Mariana Islands can pursue independence if they want their own system of rights. Decolonization, however, should mean something different from independence. Rather than viewing decolonization as the elimination of alien rule, we should think of decolonization as undoing colonial dependence.⁴⁰⁵ As such, democratic pluralism for colonized peoples must reject the imposition of laws through “paternalistic colonialism.”⁴⁰⁶

The people of the territories should not be “subject to the constitution of their conquerors, which they had no role in drafting.”⁴⁰⁷ The risk is that, by accommodating colonial peoples, this reform legitimizes or makes colonialism more palatable. But this reform need not be reformist; it can be a “non-reformist reform[]” that “redistribute[s] power and reconstitute[s] who governs and how.”⁴⁰⁸ By empowering colonized peoples to decide for themselves how constitutional rights apply in the territories, they can meaningfully exercise self-determination while preserving a formal right to decolonization.

Together, these three normative values—pluralism, democratic self-governance, and decolonization—must be part of any approach to constitutional rights in the U.S. territories. Congress can materialize a democratic pluralism for colonized peoples by extending constitutional rights only after dialogue, negotiation, and agreement with the territories.⁴⁰⁹ Moreover, the Supreme Court should not impose its views of constitutional rights in the territories. New institutional arrangements can lead toward an asymmetric federalism that reconsiders both the singular place of the U.S. territories within the federal system and the internal differences among people living in each territory.⁴¹⁰

B. A Constitutional Defense of Democratic Pluralism for Colonized Peoples

We have seen two approaches to constitutional rights in the U.S. territories: the fundamental-is-fundamental approach and the fundamental is-not-fundamental approach. These approaches correspond with two different views toward the Insular Cases. The first view would overrule the Insular Cases, which according to this stance’s supporters would mean that the Bill of Rights would fully apply in the territories.⁴¹¹ The second view aspires to repurpose the Insular Cases to protect indigenous culture and land alienation restrictions.⁴¹² While the first defends liberal citizenship, the second defends multicultural citizenship.

In this Section, I situate my approach to the question of constitutional rights in the territories as a third possibility, and I defend the constitutionality of this approach. Democratic pluralism for colonized peoples is consistent with the cultural and self-determination values of repurposing the Insular Cases. However, by treating culture as a political concept, this approach goes beyond the doctrinal limitations of the Insular Cases, as exemplified by Justice Harlan II’s impractical and anomalous standard in Reid v. Covert.⁴¹³ Accordingly, my approach is also compatible with the views of individuals who want to overrule the Insular Cases. It can help us to consider what system of rights should apply if the Insular Cases are overruled. The constitutional case for democratic pluralism for colonized peoples considers the status of constitutional rights prior to the Insular Cases, as well as the pluralistic approach to rights concerning Native nations.⁴¹⁴

Doctrinally, the argument for democratic pluralism for colonized peoples is compelling. Save for one 1898 decision by Justice Harlan,⁴¹⁵ the Supreme Court has never held that constitutional rights extend to the territories on their own force.⁴¹⁶ Critics of the Insular Cases have focused on how federal courts have sanctioned fewer constitutional rights for unincorporated territories by distinguishing them from incorporated territories.⁴¹⁷ Throughout most of the nineteenth century, the Supreme Court was ambivalent about whether constitutional rights applied to territories ex proprio vigore or by congressional extension.⁴¹⁸ Instead, as with the states up to that point, only the “fundamental limitations” applied in the territories.⁴¹⁹ If that was the constitutional understanding then, no constitutional doctrine today demands that the entire Bill of Rights be imposed in the territories.

Reid v. Covert casts a long shadow on debates over constitutional rights in the territories. Justice Harlan II’s reinterpretation of the Insular Cases, through the impractical or anomalous standard, became its own test for deciding the application and scope of constitutional rights in the territories.⁴²⁰ For Stanley Laughlin, we should follow Justice Harlan II because his concurrence was the “narrowest opinion” of the two concurrences necessary to achieve a majority opinion.⁴²¹ But Justice Frankfurter’s concurrence provided a narrower path for balancing the normative values of pluralism and democratic self-governance: the “‘fundamental right’ test.”⁴²² This test—adopted for the states, territories, and overseas colonies—considers “the specific circumstances of each particular case” and thus is capable of harmonizing constitutional rights with territorial governance.⁴²³ The Supreme Court now utilizes the fundamental rights test to incorporate rights in a nominal sense,⁴²⁴ but federal and local courts should continue to use the test to explore whether a right or constitutional doctrine applies in the territories. Without adopting a fundamental-is-fundamental approach,⁴²⁵ courts should adopt a narrow and international understanding of “fundamental rights” by asking what rights would need to be protected by any democratic society; rather than the Anglo-American society conceived of in Duncan.⁴²⁶ For example, if the grand jury indictment or the Seventh Amendment are incorporated against the states,⁴²⁷ local and federal courts should reject incorporating them in the territories because they are not fundamental rights in a democratic and international sense.⁴²⁸ The notion of fundamental rights should not simply evoke the Founding or Reconstruction eras; instead, it should align with contemporary international norms on decolonization.⁴²⁹

Since the Bill of Rights does not apply of its own force, it must depend on Congress to extend it to the U.S. territories. Historically and today, Congress has extended the Constitution to the territories by specifying through federal legislation which rights apply in each territory.⁴³⁰ No constitutional clause or judicial decision prevents Congress from consulting with the territories about extending constitutional rights therein. Congress, the Executive Branch, and the territories can work together to ensure that vulnerable groups, such as women and children, do not bear the burden of a failure to extend a specific constitutional right.⁴³¹

Democratic pluralism for colonized peoples is not only a theoretical constitutional vision; it is already in practice for Native nations.⁴³² In 1896, the Supreme Court held in Talton v. Mayes that the Bill of Rights, specifically the Fifth Amendment grand jury requirement, did not apply in the Cherokee Nation.⁴³³ Because the Native nations had “powers of local self government” that existed “prior to the Constitution,” those local laws did not need to comply with the Constitution.⁴³⁴ Talton was consistent with contemporaneous decisions concerning states, territories, and overseas colonies.⁴³⁵ Since the Bill of Rights does not apply ex proprio vigore, Congress extended some of its guarantees through the Indian Civil Rights Act of 1968. But Congress did not legislate “in wholesale fashion for the extension of constitutional requirements to tribal governments”; instead, it “modified the safeguards of the Bill of Rights to fit the unique political, cultural, and economic needs of tribal governments.”⁴³⁶ In legislating for Native nations, then, Congress follows a democratic pluralism for colonized peoples. The Bill of Rights does not apply of its own force, but Congress can extend certain rights and modify others after dialogue, negotiation, and agreement with the Native nations.⁴³⁷

Debating the constitutional interpretation of the Fourteenth Amendment in the states differs from asking what justifies, if anything, the imposition of constitutional rights in the territories and Native nations. The debate over how and why the Constitution applies in states overshadows the debate about whether it should apply in the territories. Democratic and pluralistic values are more salient in the territories than in the states because the territories’ lack political representation. Ironically, this democratic deficit became increasingly pronounced as the Supreme Court expanded the application and scope of rights in the twentieth century.⁴³⁸ In areas like criminal procedure,⁴³⁹ campaign finance,⁴⁴⁰ gun control,⁴⁴¹ and benign racial classifications,⁴⁴² territorial legislatures are more constrained today than when the Supreme Court decided the Insular Cases or Reid v. Covert.

Adopting a democratic pluralism approach for colonized peoples can protect the pluralistic and self-determination values of repurposing. And it can do so without, in the words of Ponsa-Kraus, “breathing new life into the Insular Cases” because it is consistent with cases decided before and since.⁴⁴³ But overruling the Insular Cases should not mean that all constitutional rights apply in the territories. If anything from those cases deserves to be overruled, it is the idea that the people who live in U.S. territories are incapable of self-governance.⁴⁴⁴ We can undo this legacy only by taking pluralism, democratic self-governance, and decolonization seriously.

C. Resistance and Avoidance in Territorial Legislatures and Courts

Territorial legislatures and courts should decide for themselves the scope and application of constitutional rights. Democratic pluralism for colonized peoples can manifest through various institutional arrangements: legislative override, legislative resistance, legislative avoidance, judicial resistance, and judicial avoidance. Furthermore, federal courts should be able to establish principles such as the margin of appreciation, clear statement rules, and the doctrine of abstention.⁴⁴⁵ These mechanisms enable deference to the decisions of local legislatures and courts.⁴⁴⁶ In this Section, these institutional arrangements will be used to reconsider debates in Puerto Rico over campaign finance, criminal procedure, trial by jury, and gun control. With some notable exceptions, constitutional rights in these areas have been adopted by courts or local legislatures without producing high-stakes political confrontations.⁴⁴⁷ Nevertheless, arguments for and against constitutional rights illustrate that political resistance against the judicial imposition of rights is still possible.⁴⁴⁸

The legislative override is the first mechanism by which the people can decide whether federal constitutional rights extend to the territories.⁴⁴⁹ Under this proposal, if a court invalidates a law for violating a federal constitutional right, the local legislature can deliberate (again) on the measure’s constitutionality.⁴⁵⁰ If convinced of the incompatibility between local law and federal constitutional rights, either by judicial opinion or public sentiment, the legislature may do nothing and the declaration of unconstitutionality stands.⁴⁵¹ Alternatively, the legislature can reenact the law, rendering the unconstitutionality declaration ineffective.⁴⁵² Rather than granting final authority to local or federal courts, the political branches of Puerto Rico would have the democratic credentials to override judicial decisions. For example, the laws of Puerto Rico do not require a jury in civil cases.⁴⁵³ If the Seventh Amendment is incorporated against the states, the people of Puerto Rico, through their local representatives, can override a local judicial decision adopting civil jury trials. To do so, local legislators must engage in their own political analysis through dialogue with citizens and the courts about the values of pluralism, democratic self-governance, and the dangers of judicial imposition.

While the legislative override is an institutionalized system for collectively overriding the courts, legislative resistance describes when the legislature defies a particular judicial decision.⁴⁵⁴ Despite the different name, the consequence is the same: The legislature reenacts the local law that might be unconstitutional under the federal Constitution. This approach is best exemplified through paths not taken. In 2010, after Citizens United v. FEC and McDonald v. City of Chicago, the Puerto Rican legislature could have resisted these judicial decisions by reenacting the legislation those cases had invalidated.⁴⁵⁵ Instead, in 2011, it celebrated being one of the first U.S. jurisdictions to adjust their legislation pursuant to Citizens United.⁴⁵⁶ Similarly in 2020, it enacted legislation consistent with McDonald and recognized the right to bear arms as a fundamental right.⁴⁵⁷ Consequently, the right for a corporation to engage in unlimited independent expenditures and the right to bear arms were extended automatically, without any political dialogue about their consistency with Puerto Ricans democratic and collective values.⁴⁵⁸

The last legislative proposal—legislative avoidance—avoids the constitutional issue but tries to achieve the same or similar objectives as the law declared unconstitutional. In contrast to the first two approaches, here there is no public defiance of the federal constitutional right. Instead, the legislature fulfills its policy goals in constitutionally permissible ways. In Puerto Rico, the U.S. jurisdiction with the highest level of gun violence, legislators have proposed regulating ammunition rather than tightening gun licensing requirements.⁴⁵⁹ Similarly, to counter corruption and the influence of private money in politics, current bills are trying to ban political contributions and expenditures from government contractors.⁴⁶⁰ Another example comes from Davis v. Guam, which declared unconstitutional a Guam self-determination plebiscite that limited participation to Guam descendants.⁴⁶¹ Following the decision, Guam has explored the possibility of conducting a private poll instead.⁴⁶² All these examples demonstrate how territories can pursue their collective goals while sidestepping direct political confrontations regarding constitutional rights.

As for judicial solutions, the most pluralistic approach involves judicial resistance, where the local court decides not to enforce a federal constitutional right based on its own constitutional principles.⁴⁶³ One doctrinal avenue for local courts is to extend the “contemporary community standards” from Miller v. California.⁴⁶⁴ Justice Díaz Cruz of the Supreme Court of Puerto Rico pursued this path in Torres Silva v. El Mundo.⁴⁶⁵ Because the Constitution of Puerto Rico recognizes the right to human dignity and the right to privacy, Justice Cruz argued against deciding defamation lawsuits on the basis of “foreign precedents and doctrines which are unbecoming to our culture and contrary to the categorical precepts of our laws and our Constitution.”⁴⁶⁶ To protect what he called “our native Law,” he advocated for extending Miller—which relies on contemporary community standards to assess whether speech is obscene—to defamation cases.⁴⁶⁷ Similarly, in another case, the Supreme Court of Puerto Rico denied extending to Puerto Rico the constitutional right of access to pretrial criminal proceedings.⁴⁶⁸ While the case distinguished the preliminary hearings in California and Puerto Rico,⁴⁶⁹ it also explored how the local constitution protects the right to privacy.⁴⁷⁰ This was judicial resistance based on the constitutional values of the people of Puerto Rico. A year later, however, the Supreme Court reversed and imposed its own views about how to balance these constitutional rights.⁴⁷¹

Because of federal judicial imposition, in recent cases, local courts have incorporated U.S. constitutional rights rather than resisting federal decisions. In 1952, the Constitution of Puerto Rico guaranteed the right to a jury trial, with at least a 9-3 verdict, in criminal cases.⁴⁷² Instead of defying Ramos v. Louisiana, which incorporated against the states the requirement of a unanimous verdict,⁴⁷³ the Supreme Court of Puerto Rico held that a unanimous verdict was a fundamental right in Puerto Rico because it was a fundamental right in the states.⁴⁷⁴ While the Constitution of Puerto Rico does not include a right to bear arms, the local courts have extended the Second Amendment to Puerto Rico, including the Supreme Court’s interpretation of the amendment in New York State Rifle & Pistol Association, Inc. v. Bruen.⁴⁷⁵ These two cases, therefore, provided opportunities for local legislatures and local courts in Puerto Rico to politicize the debate and resist the judicial imposition of constitutional rights by raising a defense of pluralism and democratic self-governance.

Rather than directly resisting federal constitutional rights, local courts have avoided the constitutional issue by applying federal constitutional law in a way that still upholds local values.⁴⁷⁶ Judicial avoidance can take many forms. In 1935, a local statute adopted a general eight-hour workday for commercial and industrial establishments. When this law was challenged, the Supreme Court of Puerto Rico declined to follow Lochner and its progeny.⁴⁷⁷ Instead, the court upheld progressive local legislation through an expansive reading of federal precedents.⁴⁷⁸ Similarly, in a recent defamation case, the local court applied First Amendment doctrine, but it applied it consistently with protections for the local right to privacy.⁴⁷⁹ Rather than resisting New York Times v. Sullivan⁴⁸⁰ because of Puerto Rican cultural values, a plurality decided that a local journalist with a long career in public broadcasting was not a public figure.⁴⁸¹ By paying lip service to federal constitutional law, Chief Justice Oronoz Rodríguez avoided a constitutional culture clash; but the local right to privacy still prevailed in the shadows of judicial reasoning. The judicial avoidance approach can squeeze in victories for local values by depoliticizing the differences in constitutional values. Recent decisions from the Supreme Court, however, have abandoned traditional constitutional scrutiny in favor of text, history, and tradition.⁴⁸² Overcoming these judicial impositions will require a politicized community of legislators, judges, and citizens that not only avoids but resists federal constitutional values when necessary.

The proposals in this section have focused on what the local legislature and courts can do to politicize differences in constitutional and cultural values. But from the federal government’s perspective, institutional arrangements should also be considered. For example, Congress and the territorial governments could decide together whether the territory will “opt in or opt out” of a particular constitutional right—for instance, the Second Amendment.⁴⁸³ Federal courts could also defer to local values by adopting the margin of appreciation of international human rights law. Doing so would require federal courts to defer to the local legislatures, considering “democratic legitimacy; the common practice of states; and expertise.”⁴⁸⁴ Through the margin of appreciation framework, for example, federal courts would appreciate how the preliminary hearing is consistent with due process rather than imposing the grand jury indictment. Another alternative is for federal courts to require a clear statement rule before deciding that Congress meant to extend a constitutional right to the territories.⁴⁸⁵ Finally, federal courts could abstain from intervening to let local courts decide whether the local legislation violates a federal constitutional right.⁴⁸⁶ Through these institutional arrangements, Congress and federal courts can act in a way that is more consistent with democratic pluralism for colonized peoples.

Conclusion

In 1898, Puerto Rican lawyer Eugenio María de Hostos denounced the American empire for departing from the principles of federalism by annexing Puerto Rico without its consent.⁴⁸⁷ Federal courts cannot rectify this situation by now imposing all constitutional rights on colonized peoples. They will only aggravate it. The increasingly fraught relationship between the United States and its territories demands a new kind of federalism—a democratic pluralism for colonized peoples—one that takes the consent of the governed seriously.⁴⁸⁸ This approach can protect the territories’ cultural identities and their right to self-determination without legitimizing the Insular Cases. Instead, it provides a new way of conceptualizing the relationship between local and federal courts and between constitutional rights and democracy in a pluralistic society.

In his House Divided Speech, Abraham Lincoln asked: “Why are the people of a territory and the people of a state therein lumped together, and their relation to the Constitution therein treated as being precisely the same?”⁴⁸⁹ While Lincoln’s remarks were aimed at the issue of slavery, his critique of treating territories and states identically offers valuable insight for contemporary debates. This Article advocates against this conflation of territories and states. Courts should maintain a distinct approach when considering how constitutional rights, judicial review, federalism, and constitutionalism unfold in states and territories. Within the territories, as I have argued, the focus should be on democratic self-governance, pluralism, and decolonization rather than constitutional interpretation. However, the insights gleaned from the territories—regarding the centralization of judicial review, legislative and judicial resistance, and the limitations of individual rights—can offer an essential foundation for reevaluating the interplay between constitutional rights, democratic self-governance, pluralism, and the legacy of colonialism.

* Assistant Professor of Law, Villanova University, Charles Widger School of Law. J.S.D., Yale Law School, 2023; LL.M., Yale Law School, 2019; J.D., University of Puerto Rico School of Law, 2016; B.A., University of Puerto Rico, 2013. Thanks to Samuel Moyn, Aziz Rana, Luis Fuentes-Rohwer, José J. Álvarez González, Efrén Rivera Ramos, Érika Fontánez Torres, Mayté Rivera Rodríguez, Antonio García Padilla, Griselle M. Robles Ortiz, Oscar Miranda Miller, Carlos Ramos Hernández, Sanjayan Rajasingham, Sandra Magalang, Patricia Cruz Marín and Juan J. Jiménez-Lizardi for their valuable suggestions. Special thanks to Andrea Nevares Acevedo for exceptional research assistance. Finally, thanks to the Michigan Law Review editors for their insightful comments and outstanding editorial work.