The ‘New’ Insular Cases and the Territorial Clause: From Temporary Incorporation to Permanent Unincorporation
The Insular Cases split the Territorial Clause atom by formally distinguishing, for the first time, between so-called incorporated and un-incorporated territories. The former was the "classical" definition of the Clause; the latter constituted a doctrinal innovation that did not imply the start of the annexation process. Balzac v. Porto Rico reinforced the distinction and made clear that un-incorporation could be a permanent condition. Recently, the Supreme Court announced a series of decisions regarding the territories, particularly Puerto Rico, that do not mention the incorporated/un-incorporated distinction--refering to "territories" in general, without any additional characterization. This paper analyzes the journey of the Territorial Clause from its singular, classic, incorporated version, through its split into two distinct categories (classic and new) in the Insular Cases and Balzac, to its present form as a singular, un-incorporated version that appears to silently replace the classic version. The possibility of a populated territory remaining in permanent limbo signals that current U.S. law views colonialism as constitutionally valid.
Jorge M. Farinacci Fernós,
The ‘New’ Insular Cases and the Territorial Clause: From Temporary Incorporation to Permanent Unincorporation,
Available at: https://digitalcommons.law.buffalo.edu/journal_articles/1070