Needful Rules and Regulations: Originalist Reflections on the Territorial Clause

There are few areas where the current state of the law is as inconsistent, incoherent, and intellectually bankrupt as the law of U.S. territories. The seminal cases in the field are the infamous Insular Cases, where the Supreme Court of the United States held that the “half-civilized,” “savage,” “ignorant and lawless” “alien races” that inhabited the United States’ overseas territories were not entitled to the same constitutional rights and protections afforded to Americans residing in the mainland United States—holdings that were based on the white man’s burden and similar then-prevalent theories of white supremacy. Despite being firmly entrenched within the constitutional anticanon and having “long been reviled” by all corners of the legal community, the Supreme Court has never expressly overruled the Insular Cases; rather, it has repeatedly implored that they “should not be further extended.” Yet notwithstanding this instruction, the lower federal courts continue—sometimes begrudgingly, but at other times enthusiastically—to apply them as binding precedent, typically because of the principle that only the Supreme Court may overrule its own precedents.