[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H. Res. 279 Introduced in House (IH)]

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117th CONGRESS
  1st Session
H. RES. 279

 Acknowledging that the United States Supreme Court's decisions in the 
   Insular Cases and the ``territorial incorporation doctrine'' are 
  contrary to the text and history of the United States Constitution, 
rest on racial views and stereotypes from the era of Plessy v. Ferguson 
 that have long been rejected, are contrary to our Nation's most basic 
  constitutional and democratic principles, and should be rejected as 
          having no place in United States constitutional law.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 26, 2021

 Mr. Grijalva (for himself, Ms. Plaskett, Mr. Sablan, Mr. San Nicolas, 
  Miss Gonzalez-Colon, Ms. Velazquez, Mr. Garcia of Illinois, and Mr. 
   Torres of New York) submitted the following resolution; which was 
  referred to the Committee on the Judiciary, and in addition to the 
    Committee on Natural Resources, for a period to be subsequently 
   determined by the Speaker, in each case for consideration of such 
 provisions as fall within the jurisdiction of the committee concerned

_______________________________________________________________________

                               RESOLUTION


 
 Acknowledging that the United States Supreme Court's decisions in the 
   Insular Cases and the ``territorial incorporation doctrine'' are 
  contrary to the text and history of the United States Constitution, 
rest on racial views and stereotypes from the era of Plessy v. Ferguson 
 that have long been rejected, are contrary to our Nation's most basic 
  constitutional and democratic principles, and should be rejected as 
          having no place in United States constitutional law.

Whereas territories have been an important part of the United States since the 
        beginning of our Nation, starting with the Northwest Territory in 1787, 
        with Chief Justice John Marshall writing for the Supreme Court in 1820 
        that ``the United States'' is ``the name given to our great republic, 
        which is composed of States and territories'' (Loughborough v. Blake, 18 
        U.S. (5 Wheat.) 317, 319 (1820));
Whereas today the United States has 5 populated territories, American Samoa, the 
        Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the 
        Virgin Islands of the United States, which together have a population of 
        over 3,500,000 residents, equal to the population of the 5 smallest 
        States combined, more than 95 percent of whom are racial or ethnic 
        minorities;
Whereas Puerto Rico and Guam have now been a part of the United States since 
        1898, American Samoa since 1900, the Virgin Islands of the United States 
        since 1917, and the Commonwealth of the Northern Mariana Islands since 
        1986;
Whereas until the Insular Cases were decided in the early 1900s, the Supreme 
        Court long recognized that Congress' powers over the territories, while 
        broad, were ``not absolute and unlimited'', but rather subject ``to such 
        restrictions as are expressed in the Constitution'' (Murphy v. Ramsey, 
        114 U.S. 15, 44 (1885));
Whereas following the acquisition of Hawaii, Puerto Rico, Guam, and other 
        overseas territories in 1898, the Supreme Court's decisions in the 
        Insular Cases broke from its prior precedent to establish a doctrine of 
        territorial incorporation, creating for the first time a distinction 
        between so-called ``incorporated'' territories, where the United States 
        Constitution applies ``in full'', and ``unincorporated'' territories, 
        where the Constitution applies ``only in part'' (Boumediene v. Bush, 553 
        U.S. 723, 757 (2008));
Whereas the judgment of the Court in Downes v. Bidwell (182 U.S. 244 (1901)), 
        the most prominent of the Insular Cases, was delivered by Justice Henry 
        Billings Brown, the author of Plessy v. Ferguson's doctrine of 
        ``separate but equal'', who wrote that America's newly acquired overseas 
        territories were ``inhabited by alien races, differing from us in 
        religion, customs, . . . and modes of thought'', making it impossible to 
        govern ``according to Anglo-Saxon principles'';
Whereas Justice Edward White, who in a separate 3-Justice plurality developed 
        the territorial incorporation doctrine in Downes, expressed concerns 
        over the ``evils'' of admitting ``millions of inhabitants'' of ``unknown 
        islands, peopled with an uncivilized race'', who he believed would be 
        ``absolutely unfit'' for citizenship;
Whereas 4 Justices dissented in Downes, with Chief Justice Melville Fuller 
        commenting that ``[g]reat stress is thrown upon the word 
        `incorporation,' as if possessed of some occult meaning'', and Justice 
        John Marshall Harlan expressing that the ``idea of `incorporation' . . . 
        is enveloped in some mystery which I am unable to unravel'';
Whereas Justice Harlan, who penned the lone dissent to Plessy v. Ferguson, also 
        wrote a series of powerful dissents to the Insular Cases, declaring in 
        Downes that ``[t]he idea that this country may acquire territories 
        anywhere upon the earth, by conquest or treaty, and hold them as mere 
        colonies or provinces--the people inhabiting them to enjoy only such 
        rights as Congress chooses to accord to them--is wholly inconsistent 
        with the spirit and genius, as well as with the words, of the 
        Constitution'';
Whereas the Insular Cases and the territorial incorporation doctrine have long 
        received significant criticism from the Supreme Court and a broad range 
        of jurists and legal scholars;
Whereas, in 2008, the Supreme Court stated that ``[t]he Constitution grants 
        Congress and the President the power to acquire, dispose of, and govern 
        territory, not the power to decide when and where its terms apply'', 
        expressing further that ``over time the ties between the United States 
        and any of its unincorporated Territories [may] strengthen in ways that 
        are of constitutional significance'' (Boumediene v. Bush, 553 U.S. at 
        758, 765 (2008));
Whereas, in 2020, the Supreme Court questioned the ``continued validity'' of the 
        Insular Cases, indicating ``that the Insular Cases should not be further 
        extended'' (Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., 140 
        S.Ct. 1649, 1665 (2020));
Whereas Judge Juan Torruella, who served on the United States Court of Appeals 
        for the First Circuit from 1984 until his death in 2020, labeled the 
        territorial incorporation doctrine a ``doctrine of separate and 
        unequal'', writing that ``the Insular Cases represent classic Plessy v. 
        Ferguson legal doctrine and thought that should be eradicated from 
        present-day constitutional reasoning'' because they run contrary to 
        ``the most basic precept for which this nation stands: the equality 
        before the law of all its citizens'';
Whereas Chief Judge Gustavo Gelpi, who has served on the United States District 
        Court for the District of Puerto Rico since 2006, has called the Insular 
        Cases' territorial incorporation doctrine ``a doctrine of pure judicial 
        invention, with absolutely no basis in the Constitution and one that is 
        contrary to all judicial precedent and territorial practice'';
Whereas legal scholars with a wide range of views have criticized the Insular 
        Cases and the territorial incorporation doctrine, with prominent 
        originalist legal scholar Gary Lawson writing that ``there is nothing in 
        the Constitution that even intimates that express constitutional 
        limitations on national power apply differently to different 
        territories'', and leading Constitutional Law Professor Sanford Levinson 
        calling the Insular Cases ``central documents in the history of American 
        racism'';
Whereas the territorial incorporation doctrine established by the Insular Cases 
        is still used to perpetuate the second-class treatment of Americans 
        living in the territories, from the denial of citizenship, to the denial 
        of voting rights, to the denial of equality in Federal benefits 
        programs; and
Whereas the time has come to expressly reject the Insular Cases as both contrary 
        to the Constitution's text and history and as incompatible with our 
        Nation's core values: Now, therefore, be it
    Resolved, That the House of Representatives--
            (1) recognizes that America's constitutional and democratic 
        principles apply throughout the United States, including both 
        States and territories;
            (2) acknowledges that the Insular Cases are contrary to the 
        text and history of the Constitution;
            (3) acknowledges that the Insular Cases are relics of the 
        racial views of an earlier era that have no place in our Nation 
        today; and
            (4) rejects the Insular Cases and their application to all 
        present and future cases and controversies involving the 
        application of the Constitution in United States territories.
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