Insular Cases establish "unincorporated territory" doctrine

The Doctrine

The Insular Cases — beginning with Downes v. Bidwell (1901) — created a new legal category: the "unincorporated territory." This category did not exist in the Constitution. It was invented to solve a political problem: how to hold colonies without extending the full protections of the Constitution to their inhabitants.

The Racist Foundation

Justice Henry Brown, writing for the majority in Downes v. Bidwell:

"If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible."

This language — "alien races" — is the legal foundation upon which Puerto Rico's territorial status still rests. The decisions have never been overturned.

Key Cases

• Downes v. Bidwell (1901): Puerto Rico is "foreign to the United States in a domestic sense"
• Balzac v. Porto Rico (1922): Right to jury trial does not apply in unincorporated territories

Legacy

In 2022, Justice Neil Gorsuch called for the Insular Cases to be overruled, writing that they "have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law." The Court did not overturn them.