Overturning insular cases does not resolve the political status of territories – which perpetuates further discrimination.

The reason to overrule the Insular Cases is not, however, to resolve the political status of the territories, which the Court cannot do. It is to end the proposition that the unincorporated territories exist in a nearly extraconstitutional zone. Again, doing so would have the salutary twofold effect of reining in the purely teleological and poorly reasoned jurisprudence engendered by that proposition, while withdrawing once and for all the Court’s implicit imprimatur from the outrageous notion that a U.S. territory can remain a territory forever—notwithstanding the flagrant political illegitimacy and shameless hypocrisy of a representative constitutional democracy that allows itself, in perpetuity, to govern a people without representation.

The fact is that not even Justice White, who originally insinuated the doctrine of territorial incorporation into the Court’s jurisprudence, went so far as to endorse indefinite territorial status explicitly. On the contrary, in the closing passages of his concurring opinion in Downes, he did the opposite, albeit in characteristically racist-imperialist terms:

[I]t is lawful for the United States to take possession of and hold in the exercise of its sovereign power a particular territory, without incorporating it into the United States, if there be obligations of honor and good faith which, although not expressed in the treaty, nevertheless sacredly bind the United States to terminate the dominion and control, when, in its political discretion, the situation is ripe to enable it to do so. Conceding, then, for the purpose of the argument, it to be true that it would be a violation of duty under the Constitution for the legislative department, in the exercise of its discretion, to accept a cession of and permanently hold territory which is not intended to be incorporated, the presumption necessarily must be that that department, which within its lawful sphere is but the expression of the political conscience of the people of the United States, will be faithful to its duty under the Constitution, and therefore, when the unfitness of particular territory for incorporation is demonstrated the occupation will terminate.405

Even Justice White understood that it would be wrong for the United States to subject a place and its people to territorial status indefinitely. Even the doctrine of territorial incorporation, as qualified in this closing passage of White’s troublesome concurrence, rests on the assumption that the political branches have a constitutional duty to ensure that territorial status will not go on forever. If there is any proposition in the Insular Cases worth preserving, it is this one.