The Insular Cases Are a Cautionary Tale in the Citizenship Debate

Rose Cuison Villazor

Rose Cuison Villazor is a professor at the University of California, Davis, School of Law, and a visiting professor of law at Columbia Law School.

Updated December 22, 2015, 12:00 PM

The conventional understanding of the citizenship clause, as highlighted by recent calls to abolish birthright citizenship in the United States, presumes that all persons born on United States soil obtain citizenship at birth. This understanding is incomplete. Unbeknownst to many, there is another category that, like citizenship, is also acquired at birth: the noncitizen national.

Doing away with birthright citizenship will create an even larger population of second-class members in the American polity.

Established through Congress’s absolute power over the territories, noncitizen national status was accorded to people born in the islands acquired at the end of the 19th century, including the Philippines, Puerto Rico, Guam and American Samoa. Far from a historical relic, noncitizen national status remains the status of those who are born in American Samoa today, although its constitutionality is being challenged. (Congress conferred citizenship to Puerto Ricans in 1917 and Guamanians in 1950, and it took away the national status of Filipinos residing in the United States when the Philippines ceased being a U.S. territory in 1946.)

Why bring up noncitizen nationals in a discussion about whether to abolish birthright citizenship? The resurgence of a proposal to do away with birthright citizenship fails to address the political and racial caste system that it would create, and which the framers of the 14th Amendment sought to eliminate. Indeed, as the forgotten story of noncitizen nationals shows, such a hierarchy already exists under U.S. jurisdiction. Although born on U.S. soil, noncitizen nationals have an inferior status compared to citizens. On the one hand, they are treated like citizens; for instance, they have right to enter and reside in the United States indefinitely. On the other hand, they are treated as if they are noncitizens: They do not have the right to vote, serve on juries, bear arms and apply for federal and certain state jobs.

The origin of this secondary status may be traced to a line of early 20th century Supreme Court cases known as the Insular Cases. In these cases, the Supreme Court held that only fundamental rights apply in the U.S. territories because it would be difficult to assimilate these “alien races” through “Anglo-Saxon principles.” Despite the racism, the Insular Cases continue to be good law. Notably, relying on these cases, courts have held that the citizenship clause does not extend to the territories.

The Insular Cases ensured that the question of citizenship in the U.S. territories is viewed as distinct from the issue of citizenship at birth in one of the 50 states. The caste system that existed for decades and continues to this day because of the failure to extend the citizenship clause to the U.S. territories should serve as cautionary tale. Doing away with birthright citizenship will create an even larger population of second-class members in the American polity.

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