IV 

118TH CONGRESS 

1ST SESSION H. RES. 314 

Acknowledging that the United States Supreme Court’s decisions in the 

Insular Cases and the ‘‘territorial incorporation doctrine’’ are contrary 

to the text and history of the United States Constitution, rest on racial 

views and stereotypes from the era of Plessy v. Ferguson that have 

long been rejected, are contrary to our Nation’s most basic constitutional 

and democratic principles, and should be rejected as having no place 

in United States constitutional law. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 20, 2023 

Mr. GRIJALVA (for himself, Ms. PLASKETT, Mr. SABLAN, Ms. VELA ́ZQUEZ, 

Mr. GARCI ́A of Illinois, Mr. TORRES of New York, Ms. NORTON, Mr. 

HUFFMAN, Ms. TLAIB, Mrs. NAPOLITANO, Mr. SOTO, Mr. GALLEGO, Mr. 

COHEN, Mr. BLUMENAUER, and Mr. MCGOVERN) submitted the following 

resolution; which was referred to the Committee on the Judiciary, and 

in addition to the Committee on Natural Resources, for a period to be 

subsequently determined by the Speaker, in each case for consideration 

of such provisions as fall within the jurisdiction of the committee concerned 

RESOLUTION 

Acknowledging that the United States Supreme Court’s decisions in the Insular Cases and the ‘‘territorial incorporation doctrine’’ are contrary to the text and history of 

the United States Constitution, rest on racial views and 

stereotypes from the era of Plessy v. Ferguson that 

have long been rejected, are contrary to our Nation’s 

most basic constitutional and democratic principles, and 


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•HRES 314 IH 

should be rejected as having no place in United States 

constitutional law. 

Whereas Associate Justices of the Supreme Court Neil 

Gorsuch and Sonia Sotomayor have agreed it ‘‘is past 

time to acknowledge the gravity’’ of the error of the Insular Cases, and expressed the view ‘‘that the Constitution’s application should never turn on . . . the misguided 

framework of the Insular Cases’’; 

Whereas territories have been an important part of the 

United States since the beginning of our Nation, starting 

with the Northwest Territory in 1787, with Chief Justice 

John Marshall writing for the Supreme Court in 1820 

that ‘‘the United States’’ is ‘‘the name given to our great 

republic, which is composed of States and territories’’ 

(Loughborough v. Blake, 18 U.S. (5 Wheat.) 317, 319 

(1820)); 

Whereas today the United States has 5 populated territories, 

American Samoa, the Commonwealth of the Northern 

Mariana Islands, Guam, Puerto Rico, and the Virgin Islands of the United States, which together have a population of over 3,500,000 residents, equal to the population of the 5 smallest States combined, more than 95 

percent of whom are racial or ethnic minorities; 

Whereas Puerto Rico and Guam have now been a part of the 

United States since 1898, American Samoa since 1900, 

the Virgin Islands of the United States since 1917, and 

the Commonwealth of the Northern Mariana Islands 

since 1986; 

Whereas, until the Insular Cases were decided in the early 

1900s, the Supreme Court long recognized that Congress’ 

powers over the territories, while broad, were ‘‘not absoVerDate Sep 11 2014 00:34 Apr 21, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6300 E:\BILLS\HR314.IH HR314

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lute and unlimited’’, but rather subject ‘‘to such restrictions as are expressed in the Constitution’’ (Murphy v. 

Ramsey, 114 U.S. 15, 44 (1885)); 

Whereas following the acquisition of Hawaii, Puerto Rico, 

Guam, and other overseas territories in 1898, the Supreme Court’s decisions in the Insular Cases broke from 

its prior precedent to establish a doctrine of territorial incorporation, creating for the first time a distinction between so-called ‘‘incorporated’’ territories, where the Constitution applies ‘‘in full’’, and ‘‘unincorporated’’ territories, where the Constitution applies ‘‘only in part’’ 

(Boumediene v. Bush, 553 U.S. 723, 757 (2008)); 

Whereas the judgment of the Court in Downes v. Bidwell 

(182 U.S. 244 (1901)), the most prominent of the Insular Cases, was delivered by Justice Henry Billings 

Brown, the author of Plessy v. Ferguson’s doctrine of 

‘‘separate but equal’’, who wrote that America’s newly acquired overseas territories were ‘‘inhabited by alien races, 

differing from us in religion, customs, . . . and modes of 

thought’’, making it impossible to govern ‘‘according to 

Anglo-Saxon principles’’; 

Whereas Justice Edward White, who in a separate 3-Justice 

plurality developed the territorial incorporation doctrine 

in Downes, expressed concerns over the ‘‘evils’’ of admitting ‘‘millions of inhabitants’’ of ‘‘unknown islands, peopled with an uncivilized race’’, who he believed would be 

‘‘absolutely unfit’’ for citizenship; 

Whereas 4 Justices dissented in Downes, with Chief Justice 

Melville Fuller commenting that ‘‘[g]reat stress is thrown 

upon the word ‘incorporation,’ as if possessed of some occult meaning’’, and Justice John Marshall Harlan exVerDate Sep 11 2014 00:34 Apr 21, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6300 E:\BILLS\HR314.IH HR314

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pressing that the ‘‘idea of ‘incorporation’ . . . is enveloped 

in some mystery which I am unable to unravel’’; 

Whereas Justice Harlan, who penned the lone dissent to 

Plessy v. Ferguson, also wrote a series of powerful dissents to the Insular Cases, declaring in Downes that 

‘‘[t]he idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold 

them as mere colonies or provinces—the people inhabiting them to enjoy only such rights as Congress chooses 

to accord to them—is wholly inconsistent with the spirit 

and genius, as well as with the words, of the Constitution’’; 

Whereas the Insular Cases and the territorial incorporation 

doctrine have long received significant criticism from the 

Supreme Court and a broad range of jurists and legal 

scholars; 

Whereas, in 2022, Justice Gorsuch declared that ‘‘It is past 

time to . . . admit what we know to be true: The Insular 

Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our 

law.’’; 

Whereas Justice Gorsuch continued, ‘‘[T]he time has come to 

recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court 

squarely overrules them. We should follow Justice Harlan 

and settle this question right.’’, and Justice Sotomayor 

agreed, emphasizing that the Insular Cases ‘‘were premised on beliefs both odious and wrong’’; 

Whereas, nonetheless, just months later the Supreme Court 

surprised many court watchers by denying review of a 


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case expressly asking ‘‘whether the Insular Cases should 

be overruled’’; 

Whereas the powerful statements by Justice Gorsuch and 

Justice Sotomayor followed a 2020 Supreme Court decision that questioned the ‘‘continued validity’’ of the Insular Cases, indicating ‘‘that the Insular Cases should not 

be further extended’’; 

Whereas Judge Juan Torruella, who served on the United 

States Court of Appeals for the First Circuit from 1984 

until his death in 2020, labeled the territorial incorporation doctrine a ‘‘doctrine of separate and unequal’’, writing that ‘‘the Insular Cases represent classic Plessy v. 

Ferguson legal doctrine and thought that should be 

eradicated from present-day constitutional reasoning’’ because they run contrary to ‘‘the most basic precept for 

which this nation stands: the equality before the law of 

all its citizens’’; 

Whereas Chief Judge Gustavo Gelpı ́, who has served on the 

United States District Court for the District of Puerto 

Rico since 2006, has called the Insular Cases’ territorial 

incorporation doctrine ‘‘a doctrine of pure judicial invention, with absolutely no basis in the Constitution and one 

that is contrary to all judicial precedent and territorial 

practice’’; 

Whereas legal scholars with a wide range of views have criticized the Insular Cases and the territorial incorporation 

doctrine, with prominent originalist legal scholar Gary 

Lawson writing that ‘‘there is nothing in the Constitution 

that even intimates that express constitutional limitations 

on national power apply differently to different territories’’, and leading Constitutional Law Professor SanVerDate Sep 11 2014 00:34 Apr 21, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6300 E:\BILLS\HR314.IH HR314

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ford Levinson calling the Insular Cases ‘‘central documents in the history of American racism’’; 

Whereas the territorial incorporation doctrine established by 

the Insular Cases is still used to perpetuate the secondclass treatment of Americans living in the territories, 

from the denial of citizenship, to the denial of voting 

rights, to the denial of equality in Federal benefits programs; and 

Whereas the time has come to expressly reject the Insular 

Cases as both contrary to the Constitution’s text and history and as incompatible with our Nation’s core values: 

Now, therefore, be it 

1 Resolved, That the House of Representatives— 

2 (1) recognizes that America’s constitutional and 

3 democratic principles apply throughout the United 

4 States, including both States and territories; 

5 (2) acknowledges that the Insular Cases are 

6 contrary to the text and history of the Constitution; 

7 (3) acknowledges that the Insular Cases are rel8 ics of the racial views of an earlier era that have no 

9 place in our Nation today; and 

10 (4) rejects the Insular Cases and their applica11 tion to all present and future cases and controversies 

12 involving the application of the Constitution in 

13 United States territories. 

Æ 


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