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 con-
cerned 
RESOLUTION 
Acknowledging that the United States Supreme Court’s deci-
sions in the Insular Cases and the ‘‘territorial incorpora-
tion 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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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 Insu-
lar Cases, and expressed the view ‘‘that the Constitu-
tion’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 Is-
lands of the United States, which together have a popu-
lation of over 3,500,000 residents, equal to the popu-
lation 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 abso-
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lute and unlimited’’, but rather subject ‘‘to such restric-
tions 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 Su-
preme Court’s decisions in the Insular Cases broke from 
its prior precedent to establish a doctrine of territorial in-
corporation, creating for the first time a distinction be-
tween so-called ‘‘incorporated’’ territories, where the Con-
stitution applies ‘‘in full’’, and ‘‘unincorporated’’ terri-
tories, 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 Insu-
lar 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 ac-
quired 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 admit-
ting ‘‘millions of inhabitants’’ of ‘‘unknown islands, peo-
pled 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 oc-
cult meaning’’, and Justice John Marshall Harlan ex-
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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 dis-
sents to the Insular Cases, declaring in Downes that 
‘‘[t]he idea that this country may acquire territories any-
where upon the earth, by conquest or treaty, and hold 
them as mere colonies or provinces—the people inhab-
iting 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 Constitu-
tion’’; 
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 in-
stead 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 founda-
tion. 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 pre-
mised 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 deci-
sion that questioned the ‘‘continued validity’’ of the Insu-
lar 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 incorpora-
tion doctrine a ‘‘doctrine of separate and unequal’’, writ-
ing that ‘‘the Insular Cases represent classic Plessy v. 
Ferguson legal doctrine and thought that should be 
eradicated from present-day constitutional reasoning’’ be-
cause 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 inven-
tion, 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 criti-
cized 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 terri-
tories’’, and leading Constitutional Law Professor San-
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ford Levinson calling the Insular Cases ‘‘central docu-
ments in the history of American racism’’; 
Whereas the territorial incorporation doctrine established by 
the Insular Cases is still used to perpetuate the second- 
class 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 pro-
grams; and 
Whereas the time has come to expressly reject the Insular 
Cases as both contrary to the Constitution’s text and his-
tory and as incompatible with our Nation’s core values: 
Now, therefore, be it 
Resolved, That the House of Representatives— 
(1) recognizes that America’s constitutional and 
democratic principles apply throughout the United 
States, including both States and territories; 
(2) acknowledges that the Insular Cases are 
contrary to the text and history of the Constitution; 
(3) acknowledges that the Insular Cases are rel-
ics of the racial views of an earlier era that have no 
place in our Nation today; and 
(4) rejects the Insular Cases and their applica-
tion to all present and future cases and controversies 
involving the application of the Constitution in 
United States territories. 
Æ 
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