Me: “However I'm not amused by "Guam Historian"
's analysis linking our
inability to vote in presidential elections to the Insular Cases.” Anne Perez
You: “Hattori was talking about the origins of the unincorporated territorial status and it was Olver [sic] who made the link to voting for President.”
This glaringly FALSE STATEMENT was uttered by
Guam historian Anne
on the TV show called Last Week Tonight
with : John Oliver
flag is flying over these lands so some people said well doesn’t that mean that
American laws apply? In 1901
the insular cases, basically the judgment of the Supreme Court, the new
territories were inhabited by alien quote alien races and they may not be able
to understand Anglo-Saxon laws therefore the constitution doesn’t have to
apply.” United States
Nine United States Supreme Court cases were decided in 1901 which are generally identified as Insular Cases. Probably the best way to gain an understanding of the Insular Cases and their import is to read the cases. Two key cases are of great import, each of which list one
as the appellee. Bidwell the George
R. Bidwell US
customs collector for
was sued in his official capacity to recover duty paid under protest on sugar
“imported” from Port Rico.
The Supreme Court held that New York Puerto Rico was
not a foreign country and therefore the collection of the tariff from De Lima was wrong. ( De Lima v.
In the other key case S. B. Downes and Co. was an importer who sued the collector of customs for
to recover $659.35 paid in duty for the import of some bananas to George R.
Bidwell the customs collector for . Downes turned on an the determination of
whether the Foraker Act passed constitutional muster. The Downes decision held only that the
Uniformity Clause, Art I § 8 ¶ 1 of the Constitution: New
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
was not applicable outside the 47 states that made up the union at that time.
Here’s the holding in that case:
“We are therefore of opinion that the Island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution; that the Foraker Act is constitutional, so far as it imposes duties upon imports from such island, and that the plaintiff cannot recover back the duties exacted in this case.
The judgment of the Circuit Court is therefore
And the syllabus of the decision penned by
Justice : Brown
MR. JUSTICE ,
in announcing the conclusion and judgment of the Court. BROWN
The circuit courts have jurisdiction, regardless of amount, of actions against a collector of customs for duties exacted and paid under protest upon merchandise alleged not to have been imported.
Island of Porto Rico is not a part of the United States within that provision of the
Constitution which declares that "all duties, imposts, and excises shall
be uniform throughout the ." United
245 U. S.
There is a clear distinction between such prohibitions of the Constitution as go to the very root of the power of Congress to act at all, irrespective of time or place, and such as are operative only throughout the United States, or among the several states.
A long continued and uniform interpretation, put by the executive and legislative departments of the government upon a clause in the Constitution should be followed by the judicial department unless such interpretation be manifestly contrary to its letter or spirit.
Downes consists of 147 pages of analysis that spans the discipline of constitutional interpretation from the parsing of text, stare decisis and policy analysis, to historical and philosophical determinations. Downes deals with tariff duties on oranges. Commercial interests, especially the sugar industry, were the animas underlying Downes, not as Guam historian Anne Perez Hattori would instruct, that Porto Rico was “…inhabited by alien quote alien races and they may not be able to understand Anglo-Saxon laws therefore the constitution doesn’t have to apply.”
Nine of the Insular Cases were decided in 1901. Eight dealt with Puerto Rico, one the
(24 Diamond Rings.) None dealt with Guam nor did they have any applicability to
Philippines Guam whatsoever. At
the time those insular cases were decided Guam
wasn’t even a colony. Guam was a prize of war governed by the President as
commander in chief until such time that the Congress determined the civil
rights and political status of the native inhabitants.
Four justices dissented and in so doing clearly defined the issue before the Court:
MR. CHIEF JUSTICE
FULLER, with whom
concurred MR. JUSTICE HARLAN, MR. JUSTICE BREWER, and MR. JUSTICE , dissenting: PECKHAM
This is an action brought to recover moneys exacted by the collector of customs at the
port of New York as import duties on two shipments of fruit
from ports in the Island of Porto Rico to the
in November, 1900. port of New York
The treaty ceding Porto Rico to the
was ratified by the
Senate United States February 6,
1899; Congress passed an act to carry out its obligations March 3, 1899, and
the ratifications were exchanged, and the treaty proclaimed April 11, 1899. Then followed
the act approved April
12, 1900. 31 Stat. 77, c. 191.
HARLAN, MR. JUSTICE BREWER, MR. JUSTICE ,
and myself are unable to concur in the opinions and judgment of the Court in this
case. The majority widely
differ in the reasoning by which the conclusion is reached, although
there seems to be concurrence in the view that Porto Rico belongs to the United
States, but nevertheless, and notwithstanding the act of Congress, is not a part
of the United States subject to the provisions of the Constitution in respect
of the levy of taxes,
duties, imposts, and excises. PECKHAM
348 U. S.
The inquiry is whether the Act of
April 12, 1900, so far as it requires
the payment of import duties on merchandise brought from a port of Porto Rico
as a condition of entry into other ports of the , is consistent with
the federal Constitution. United States
The act creates a civil government for Porto Rico, with a governor, secretary, attorney general, and other officers, appointed by the President, by and with the advice and consent of the Senate,…
The first clause of sec. 8 of Article I of the Constitution
352 U. S.
"The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the
but all duties, imposts, and excises shall be uniform throughout the ." United States
Clauses four, five, and six of section nine are:
"No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken."
"No tax or duty shall be laid on articles exported from any state."
This act on its face does not comply with the rule of uniformity, and that fact is admitted.
If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible, and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action.
NB the conditional nature of the first sentence established by the lead word in the quote: “if.” In other words the sentence speaks to what could happen, not past events. Surrounding paragraphs make this determination inevitable.
If Congress had power to acquire new territory, which is conceded, that power was not hampered by the constitutional provisions. If, upon the other hand, we assume
“…that the territorial clause of the Constitution was not intended to be restricted to such territory as the United States then possessed, there is nothing in the Constitution to indicate that the power of Congress in dealing with them was intended to be restricted by any of the other provisions.
In short, there is absolute silence upon the subject. The executive and legislative departments of the government have for more than a century interpreted this silence as precluding the idea that the Constitution attached to these territories as soon as acquired, and unless such interpretation be manifestly contrary to the letter or spirit of the Constitution, it should be followed by the judicial department.
Cooley, Const.Lim. secs. 81-85. Burrow-Giles
Lithographic Co. v. Sarony, 111 U. S. 53, 111 U. S. 57; Field
v. Clark, 143 U. S. 649, 143 U. S. 691.
Its conditional nature is emphasized by the first sentence of the quote:
Patriotic and intelligent men may differ widely as to the desireableness [sic] of this or that acquisition, but this is solely a political question.
Guam historian had noticed the
hypothetical stated at pp. 286 et seq.: Anne Perez
“…the judgment of the Supreme Court, the new territories was inhabited by alien, quote alien, races and they may not be able to understand Anglo-Saxon laws therefore the constitution doesn’t have to apply.”
and had she read the triple rationales decidendi employed by the Supreme Court she might not have been so willing to be used by
as his “straight man.”  John Oliver
There is much to learn from the Insular Cases about what an apparently prescient Chief Justice
Marshall referred to as an “American Empire.”
University professors could have a role in the learning process:
“…The general public should feel free to demand more from academics in terms of quality of thought, transparency of processes and, most of all, honesty and integrity. The public should feel free to respond with ideas and hold them accountable, especially if they use the title professor….”
 As pointed out infra, Downes had three rationales decidendi. A better place to look for “unincorporated” is
v. Porto Rico.
 Of course American laws do apply in
Guam, cf. the CNMI re labor and immigration
 “Anyone who uses the title professor has a special responsibility to be truthful. The general public should feel free to demand more from academics in terms of quality of thought, transparency of processes and, most of all, honesty and integrity.
At UOG, we have many academics who willingly share their ideas in public. The public should feel free to respond with ideas and hold them accountable, especially if they use the title professor. Academic freedom isn’t free, there are many responsibilities associated with it.” Words that are familiar to you,
Armstrong v. United
United States 182 222 (1901) U.S.
151 (1901) U.S.
Downes v. Bidwell
Fourteen Diamond Rings v.
and Porto Rico Steamship Co. New York
 After the Treaty of Paris the
name of the island to Porto Rico, probably in deference to English speaking
Americans. The name was changed back ot US Puerto Rico
Oklahoma, New Mexico and Arizona
(and of course Alaska and ) had not yet been admitted. Hawaii
 The Foraker Act, enacted 1900, was the first Organic Act for
Puerto Rico. It established civil
government, a US District Court and a non voting Resident Commissioner to
Congress. § 3 of the Foraker Act provided for an internal tariff which would
arguably violate the Uniformity Clause of the Constitution. Thus the procedural
challenge in Downes v. Bidwell.
‘Sec. 3. That on and after the passage of this Act all merchandise coming into the United States from Porto Rico and coming into Porto Rico from the United States shall be entered at the several ports of entry upon payment of fifteen per centum of the duties which are required to be levied, collected, and paid upon like articles of merchandise imported from foreign countries;…”
Guam is not an
unincorporated territory because of the Insular Cases. Guam is an
unincorporated territory because the Congress said it is: “
-- Government. Guam is hereby declared to be an unincorporated territory of the
Unincorporated Territory United States and the
capital and seat of government thereof shall be located at the city of Agaña, Guam.” 48 USC §
1421a. (NB the effect of deleting the
first syllable of the first word!)
 Guam became a colony of the
United States upon enactment of the Organic Act,
48 USC § 1421 et seq. Before the
Organic Act, the President of the United States as commander-in-chief ruled Guam awaiting the determination of Congress. (See fn 10.)
Article IX. “Spanish subjects, natives of the Peninsula,
residing in the territory over which Paris by the present treaty
relinquishes or cedes her sovereignty, may remain in such territory… Spain
“The civil rights and political status of the native inhabitants of the territories hereby ceded to the
shall be determined by the Congress.” United States
 Undoubtedly a reference to, the development of what Chief Justice Marshall called “the American empire.”
 She might have even accurately quoted the opinion!
 Ibid. 3