By Dolace McLean*
The Insular Cases continue to attract intellectual attention that excoriates their obvious racism, and rightly so. These cases stubbornly persist as part of constitutional law jurisprudence although they embrace concepts that make the territories separate and unequal under the Constitution—strongly reminiscent of the reasoning in Plessy v. Ferguson. Indeed, the author of the seminal Insular Case of Downes v. Bidwell is Justice Henry Billings Brown, the author of the Plessy decision. Despite their racist legacy, the Insular Cases continue to be good law and the Supreme Court has yet to overrule them. The persistence begs the question of why these cases have not yet met their Brown v. Board of Education takedown. While there is no answer that makes obvious sense, perhaps, there is an answer that is buried in the legal and political subconscious of America.
This Article argues that there is an imperial imperative that has always been at work in America since its inception. This imperative is made all the more forceful because it has always had the support of the law and legal system. Thus, the concept of “territories” has always existed as an integral part of the framework of the nation from the time the first settler set foot on the North American continent and claimed to have discovered the land. American colonialism has been rationalized in Supreme Court cases that employ a discourse of legal signification. Relying on this discourse, the imperial imperative continues today in court rulings that support lesser constitutional protections, and engage constitutional exceptionalism in territories that are considered foreign even though they are within America’s legal borders. This Article explores legal signification in two cases, Johnson v. M’Intosh and Downes v. Bidwell to uncover the political and legal dynamics that are at play in making and maintaining America’s colonies.