The Insular Cases and the Emergence of American Empire

Abstract

Bartholomew H. Sparrow's survey and reinterpretation of the so-called Insular Cases is a scholarly feat. Not only does he make the complex legal argument crystal clear but he also delves deeply into the political and cultural factors underlying each opinion. Furthermore, the scope of his study goes beyond the traditional presentation of the Supreme Court's original decisions by examining thirty-five decisions made between January 1901 and April 1922. At first, the issue was whether or not the Constitution followed the flag; the twenty-odd-year legal debate eventually determined— as Sparrow makes plain—that it did, but only selectively. The guiding principle that eventually emerged, the Incorporation Doctrine (it triumphed, in Rassmussen v. United States [1905], over Justice Henry Billings Brown's “extension theory”), began, paradoxically, as a dissent by Justice Edward Douglass White. To set the stage, the author calls forth the history of continental expansion and its blueprint, the Northwest Ordinance of 1787. He shows that the noncontiguous “Spoils of the Spanish-American War” in 1898 did not create an unprecedented situation since Congress had long exercised authority over the territories (p. 31). The novelty lay in the 1899 Treaty of Paris—which sanctioned the right of the United States to acquire colonies. The treaty did not provide for the incorporation and later admission into the Union of these new possessions, which caused an immediate constitutional debate among experts over organized and unorganized territories, the applicability of the “uniformity clause,” and the extension of the Bill of Rights to their inhabitants.