Overturning Insular cases is bad --- any doctrine that overturns them only fuels the worst parts of the court system

The through-line connecting the Insular Cases to Justice Harlan to the “modern” cases is sovereign flexibility. At bottom, the courts ratified the goals and policies of Congress and the executive with respect to the territories. In the early twentieth century, the goal was empire: The government wanted maximum flexibility to expand American influence around the world.23 By the 1970s, these dubious aims had been replaced by “accommodationist” policies—encouraging local authority and self-governance in the territories to the greatest extent possible, while also seeking to protect local cultures.24

This Note argues that judicial ratification of the accommodationist project by the political branches is defensible, perhaps even imperative, from the perspective of democratic theory. Many of these territories did not choose to join the American constitutional regime; they need group-differentiated rights to have meaningful equality in the republican system, rights many of which were explicitly promised to them when they became subject to U.S. sovereignty.25 Hints of these arguments, I will show, play a role in the later courts’ decisions. To the extent the manipulable Insular doctrine permitted courts to bless the maximum devolution of local governance authority to territorial governments—by ignoring small-scale constitutional divergences—we should have fewer qualms with it. Only by going outside the Constitution—the same move that enabled the U.S. to rule the territories as colonies—could Congress delegate the requisite authority to these territories to govern themselves as they see fit.

This Note further highlights the existence of a range of legal arrangements for governance in U.S. territories that would be impermissible under strict metropolitan constitutional norms. Such constitutional accommodation may seem contrary to our constitutional order, but in fact finds support in other domains of American law. The Supreme Court has long carved out a sui generis set of rules governing Indian tribes,26 and its jurisprudence of forum non conveniens and due process incorporation also bolsters a notion of other legal arrangements that do not track ours but are nonetheless acceptable and solicitous of certain fundamental, inalienable guarantees of liberty.27 These examples fortify the legitimacy of the heterogeneous extra-constitutional arrangements created by territorial governments and judicially blessed by the Insular doctrine. Part I sketches out the development of the Insular doctrine, first in the Supreme Court and then as elaborated by the lower courts through the prism of Justice Harlan’s concurrence in Reid v. Covert. 28 In Part II, I highlight the touchstone of all these cases—flexibility for the federal government’s goals. Part III offers a qualified defense of this somewhat incoherent doctrine as applied in recent decades, arguing that Congress’s accommodationist project maximizes local self-government in the territories and protects local cultures by permitting governments to experiment with group-differentiated rights. Part IV reaches outside territorial law to find analogues—instances in which the Supreme Court has acknowledged legitimate legal processes and rights-protective frameworks not our own but nonetheless tolerable to American constitutional law.