The Empire Forgotten: The Application of the Bill of Rights to U.S. Territories

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Empire Forgotten: The Application of Bill of Rights to U.S. examines history of Insular a series of cases decided by United Supreme Court at turn of twentieth century, dealing with extension of Bill of Rights to recently acquired territories of United States. It begins with an examination of history of territorial acquisition by United States, starting with Northwest Territories and continuing up through Treaty of Paris at end of Spanish-American War. Through this historical examination, paper traces various laws and treaties made by Congress, and how Treaty of Paris, unlike prior treaties, lacked a provision guaranteeing rights to citizens of newly acquired territories. It was this lack that lead to decisions by United Supreme Court, holding that full Bill of Rights, specifically right to a jury trial, did not apply to these newly acquired territories. Part III of paper begins with an examination of Court's decision in Dred Scott v. Sanford, first application of Bill of Rights to United territory not yet a state. It notes that in that case, Chief Justice Taney held that Bill of Rights, and specifically right to a jury trial, applied in U.S. territories. It then moves on to an examination of Uniform Duties Clause Cases, in which Court first addressed Government's relationship to insular territories, and ruled that they were not part of the United States as that term was used in Constitution. It then moves on to examine Insular Cases themselves, and creation of Territorial Incorporation Doctrine, which holds that Constitution only applies fully to territories that Congress has incorporated into United States. Since Congress has not incorporated insular territories, Court held that right to a jury trial did not apply. It traces evolution of Territorial Incorporation Doctrine from its first articulation in Justice White's concurring opinion in Downes v. Bidwell through its eventual adoption by full Court in Balzac v. Porto Rico (sic). The paper then examines distinction between procedural and fundamental rights, only latter of which have been incorporated. It notes that Court held that right to a jury trial is procedural, rather than fundamental, and therefore citizens of insular territories could not claim this right. The paper moves on to a discussion of racist language and assumptions underlying Territorial Incorporation Doctrine before moving on to an examination of several solutions to problem of this unequal application of Bill of Rights. Four possible solutions are suggested, and benefits and detriments of each are explored before paper finally concludes that best action to solve for this unequal application of Bill of Rights is for Congress to fully incorporate Insular Territories.