Overturning insular cases re-entrenches the squo – the AFF’s lack of judicial afterthought reproduces unreviewable federal power and status manipulation.

But Aurelius’s troubles do not end there. More than import existing exceptionalism into text, it overwrote constitutional doctrine in a way that made it nearly impossible to reckon with the depth of its entanglement with American overseas imperialism. This approach paves the way for wholesale deletion—rather than considered management—of promises and legal interests lodged in the territories’ path-dependent idiosyncrasies.48 Aurelius teaches that ill-considered judicial intervention threatens more than an empty repackaging of the status quo; it poses an imminent threat to Indigenous-rights and self-determination interests that have yet to be disentangled from the Insular Cases framework.

In this way, the most important lesson of Aurelius is that the constitutional problems of territorial exceptionalism run far deeper than the specific doctrinal holdings of the Insular Cases, such that those cases’ precipitous judicial overthrow is unlikely to spell an end to the core harms of the legal order they represent.49 Marketing the Insular Cases as doctrinal relics “long ‘overruled in the court of history,’”50 those who urged the Aurelius Court to overturn the Insular Cases—and who now criticize it for failing to do so—paint them as discrete aberrations that can be shored up in a single knockout blow. But it is Aurelius’s orientation to the doctrine—not the doctrine itself—that reveals the potential for the worst of both worlds: an empty repudiation of historical racism that both recharters second-class status within the text and erases existing promises to protect land, culture, or autonomy, and self-determination.

To date, little has been offered in the way of a workable framework to replace the Insular Cases that would allow the Court to curtail the problems of unreviewable federal power and status manipulation51 while securing recognition of path-dependent promises.52 More development of such a framework is required before the Insular Cases resurface at the Court, as a pending certiorari petition on the question of American Samoa’s birthright citizenship captures.53 While many have traveled the historical and doctrinal connections between the Insular Cases and Plessy v. Ferguson, none have followed this popular comparison to its next logical station: the robust scholarly debate on how Plessy was actually overturned.54 The prevailing call for judicial intervention asks the Court to mimic its approach to Korematsu in Trump v. Hawaii—ignoring the substantial critiques that see Trump v. Hawaii as a largely symbolic, nonsubstantive repudiation that redeploys the logic of Korematsu by swapping “one ‘gravely wrong’ decision with another.”55

There are many untapped lessons in the robust practical and theoretical scholarship on both Brown and Trump v. Hawaii.56 Federal Indian law is similarly replete with unobserved doctrinal lessons for the territories that complicate the Insular Cases-Plessy parallel.57 These include the ramifications of migrating extratextual plenary-power understandings into textual readings of the Constitution, the availability of alternatives to the Reconstruction Amendments’ dominant paradigm of minority-rights protection, conceptualizing colonial path dependencies within the Constitution, and the usefulness of legal interventions outside the judicial sphere.58