By Natalie Gomez-Velez*
The separate and unequal status of the U.S. territories under the Insular Cases’ “incorporation doctrine” is indefensible yet largely invisible. Few people in the United States, including lawyers, are aware of the colonialism position of the U.S. territories. This is largely attributable to the lack of coverage in the general law school curriculum. In August 2021, the American Bar Association passed Resolution 300, urging law schools to offer courses on the Insular Cases and the law of U.S. territories. The Report accompanying the Resolution notes:
“[A]lthough the legal academy played a pivotal role in developing the legal doctrines that the U.S. Supreme Court would adopt in the Insular Cases, for decades America’s territories have been largely absent from the law school curriculum and mainstream legal scholarship. Constitutional law casebooks only make passing references to the Insular Cases, and few courses cover the topic.”
This Article explains the position of the territories under the Insular Cases and more recent Supreme Court cases. It advocates for law school professors to discuss the territories in the constitutional law course, and it provides examples of how some law professors, including the Author, and writers of constitutional law textbooks cover the territories in different ways. Finally, this Article describes the challenges and rewards of including this material in the constitutional law course, particularly at a moment when teaching facts and history related to structural inequality are urgent and under challenge.