Case: 16-4240 Document: 33-1 Filed: 04/19/2017 Pages: 7 (1 of 37

)

No. 16-4240

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

LUIS SEGOVIA, et al.,
Plaintiff-Appellants,
v.

BOARD OF ELECTION COMMISSIONERS
FOR THE CITY OF CHICAGO, et al.,
Defendant-Appellees.

On Appeal from the United States District Court
for the Northern District of Illinois, No. 15 C 10196
Before the Honorable Judge Joan B. Gottschall

MOTION OF SCHOLARS OF CONSTITUTIONAL LAW
AND LEGAL HISTORY FOR LEAVE TO FILE A BRIEF AS AMICUS
CURIAE IN SUPPORT OF NEITHER PARTY

KELLY P. DUNBAR ADRIEL I. CEPEDA DERIEUX
WILMER CUTLER PICKERING WILMER CUTLER PICKERING
HALE AND DORR LLP HALE AND DORR LLP
1875 Pennsylvania Avenue, NW 7 World Trade Center
Washington, DC 20006 250 Greenwich Street
(202) 663-6000 New York, NY 10007
(212) 230-8800

April 19, 2017
Case: 16-4240 Document: 33-1 Filed: 04/19/2017 Pages: 7 (2 of 37)

Pursuant to Federal Rule of Appellate Procedure 29(a), amici curiae scholars

of constitutional law and legal history respectfully move for leave to file the

attached brief amicus curiae in support of neither party.

INTEREST OF AMICI CURIAE

Amici curiae are professors of constitutional law and legal history who have

studied extensively the Supreme Court’s early-twentieth-century decisions in the

“Insular Cases,” on which the district court below relied sua sponte in resolving

Appellants’ constitutional claims. Amici take no position on the ultimate outcome

of Appellants’ constitutional claims, but maintain a compelling interest in aiding

this Court’s understanding of the Insular Cases, given their expertise and body of

scholarly research. Proper resolution of this case is a matter of concern to amici,

who have a professional interest in ensuring that the Court be accurately informed

as to the governing precedent and correct application regarding the territorial

incorporation doctrine commonly attributed to these decisions.

Amici curiae are: Christina Duffy Ponsa, George Welwood Murray

Professor of Legal History at Columbia Law School; Andrew Kent, Professor of

Law at Fordham University School of Law; Gary S. Lawson, Philip S. Beck

Professor of Law at Boston University School of Law; Sanford V. Levinson, W.

St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the

University of Texas School of Law; Bartholomew Sparrow, Professor of
Case: 16-4240 Document: 33-1 Filed: 04/19/2017 Pages: 7 (3 of 37)

Government at the University of Texas at Austin; and Stephen I. Vladeck,

Professor of Law at the University of Texas School of Law.

REASONS FOR GRANTING AMICUS PARTICIPATION

Although amici acknowledge this Circuit’s strict requirements governing

amicus participation, amici respectfully request the opportunity to file a brief in

this appeal because they offer an independent and otherwise unpresented

perspective on this case. Amici have written and edited various works about the

Insular Cases’ history and application to constitutional issues concerning the status

of U.S. territories and inhabitants, and they have studied those cases’ relevance to

the equal protection principles at issue in this case. As leading scholars in the

study of the United States’ relationship with its noncontiguous territories, amici

can provide “a unique perspective … that can assist the court of appeals” in its

disposition of those constitutional questions. National Organization for Women,

Inc. v. Scheidler, 223 F.3d 615, 617 (7th Cir. 2000).

Moreover, amici respectfully submit that their brief will assist the Court “by

presenting ideas, arguments, theories, insights, facts, or data that are not to be

found in the parties’ briefs.” Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d

542, 545 (7th Cir. 2003). Of particular significance, none of the parties briefed

issues relating to the Insular Cases or the territorial incorporation doctrine to the

district court. Amici believe that the parties’ omission of any discussion of these

-2-
Case: 16-4240 Document: 33-1 Filed: 04/19/2017 Pages: 7 (4 of 37)

decisions or the principles for which they are understood to stand before the district

court was well-founded. As amici explain in the appended brief, resolution of the

questions presented in this case should be reached by reference to constitutional

provisions concerning the federal franchise and equal protection principles—not by

application of the Insular Cases or the related doctrine of territorial incorporation.

Although Appellants have briefly touched on some of these issues in their brief

before this Court, amici respectfully submit that their collected works on the

Insular Cases, and on the evolution of the territorial incorporation doctrine those

cases purportedly set forth, will uniquely inform the Court’s approach to resolving

whether or not those cases are relevant to the constitutional issues decided by the

district court below. 1

Appellants have consented to the filing of this amicus brief. The U.S.

Appellees have consented to the filing of this brief; the County Clerk for Rock

Island County has declined to consent. Appellee the Board of Election

Commissioners for the City of Chicago takes no position on amici’s request.

1
While Appellants’ opening brief, filed on April 12, 2017, includes some
discussion of the Insular Cases, it does not discuss the irrelevance of the Insular
Cases to this case at any length. See Appellant’s Br. 25-29. In addition, because
amici take no position on the ultimate disposition of this case and in light of their
extensive academic background, their perspective on the Insular Cases is unique.

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Case: 16-4240 Document: 33-1 Filed: 04/19/2017 Pages: 7 (5 of 37)

CONCLUSION

For these reasons, amici curiae respectfully request that this Court grant their

motion for leave to file the brief amici curiae submitted with this motion.

Respectfully submitted,

/s/ Adriel I. Cepeda Derieux
ADRIEL I. CEPEDA DERIEUX
Counsel of Record
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
(212) 230-8800

KELLY P. DUNBAR
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Avenue, NW
Washington, DC 20006
(202) 663-6000

April 19, 2017

-4-
Case: 16-4240 Document: 33-1 Filed: 04/19/2017 Pages: 7 (6 of 37)

CERTIFICATE OF COMPLIANCE

Under Federal Rule of Appellate Procedure 32(g), the undersigned hereby

certifies that this brief complies with the type-volume limitation of Federal Rule of

Appellate Procedure 27(d)(2)(A).

1. Exclusive of the exempted portions of the brief, as provided in Federal

Rule of Appellate Procedure 32(f), the brief contains 633 words.

2. The brief has been prepared in proportionally spaced typeface using

Microsoft Word 2016 in 14 point Times New Roman font. As permitted by

Federal Rule of Appellate Procedure 32(g)(1), the undersigned has relied upon the

word count feature of this word processing system in preparing this certificate.

/s/Adriel I. Cepeda Derieux
ADRIEL I. CEPEDA DERIEUX

April 19, 2017
Case: 16-4240 Document: 33-1 Filed: 04/19/2017 Pages: 7 (7 of 37)

CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of April, I electronically filed the

foregoing with the Clerk of the Court for the U.S. Court of Appeals for the Seventh

Circuit using the appellate CM/ECF system. Counsel for all parties to the case are

registered CM/ECF users and will be served by the appellate CM/ECF system.

/s/ Adriel I. Cepeda Derieux
ADRIEL I. CEPEDA DERIEUX
Case: 16-4240 Document: 33-2 Filed: 04/19/2017 Pages: 30 (8 of 37)

No. 16-4240

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

LUIS SEGOVIA, et al.,
Plaintiff-Appellants,
v.

BOARD OF ELECTION COMMISSIONERS
FOR THE CITY OF CHICAGO, et al.,
Defendant-Appellees.

On Appeal from the United States District Court
for the Northern District of Illinois, No. 15 C 10196
Before the Honorable Judge Joan B. Gottschall

BRIEF FOR AMICI CURIAE SCHOLARS OF CONSTITUTIONAL LAW
AND LEGAL HISTORY IN SUPPORT OF NEITHER PARTY

KELLY P. DUNBAR ADRIEL I. CEPEDA DERIEUX
WILMER CUTLER PICKERING WILMER CUTLER PICKERING
HALE AND DORR LLP HALE AND DORR LLP
1875 Pennsylvania Avenue, NW 7 WORLD TRADE CENTER
Washington, DC 20006 250 GREENWICH STREET
(202) 663-6000 NEW YORK, NY 10007
(212) 230-8800

April 19, 2017
Case: 16-4240 Document: 33-2 Filed: 04/19/2017 Pages: 30 (9 of 37)
$33($5$1&( CIRCUIT RULE 26.DISCLOSURE STATEMENT

Appellate Court No: 16-4240

Short Caption: Segovia v. Board of Elections Commissioners for the City of Chicago

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Christina Duffy Ponsa, Andrew Kent, Gary S. Lawson, Sanford V. Levinson, Bartholomew Sparrow,

Stephen I. Vladeck (collectively, "Scholars of Constitutional Law and Legal History")

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Wilmer Cutler Pickering Hale and Dorr LLP

(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
None

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:
None

Attorney's Signature: s/ Adriel I. Cepeda Derieux Date: 4/19/2017
Attorney's Printed Name: Adriel I. Cepeda Derieux

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No

Address: 7 World Trade Center, 250 Greenwich Street
New York, NY 10007

Phone Number: (212) 295-6303 Fax Number:

E-Mail Address: Adriel.CepedaDerieux@wilmerhale.com

rev. 01/ *$
Case: 16-4240 Document: 33-2 Filed: 04/19/2017 Pages: 30 (10 of 37)
$33($5$1&( CIRCUIT RULE 26.DISCLOSURE STATEMENT

Appellate Court No: 16-4240

Short Caption: Segovia v. Board of Elections Commissioners for the City of Chicago

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Christina Duffy Ponsa, Andrew Kent, Gary S. Lawson, Sanford V. Levinson, Bartholomew Sparrow,

Stephen I. Vladeck (collectively, "Scholars of Constitutional Law and Legal History")

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Wilmer Cutler Pickering Hale and Dorr LLP

(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
None

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:
None

Attorney's Signature: s/ Kelly P. Dunbar Date: 4/19/2017
Attorney's Printed Name: Kelly P. Dunbar

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No

Address: 1801 Pennsylvania Avenue NW
Washington, D.C. 20006

Phone Number: (202) 663-6262 Fax Number:

E-Mail Address: Kelly.Dunbar@wilmerhale.com

rev. 01/ *$
Case: 16-4240 Document: 33-2 Filed: 04/19/2017 Pages: 30 (11 of 37)

TABLE OF CONTENTS

Page
CIRCUIT RULE 26.1 DISCLOSURE STATEMENTS ............................................i

TABLE OF AUTHORITIES .................................................................................... iv

INTEREST OF AMICI CURIAE ..............................................................................1

SUMMARY OF ARGUMENT .................................................................................2

ARGUMENT .............................................................................................................4

I. THE INSULAR CASES HAVE NOTHING TO DO WITH APPELLANTS’
CONSTITUTIONAL CLAIMS ................................................................................4

II. THE TERRITORIAL INCORPORATION DOCTRINE ATTRIBUTED TO
THE INSULAR CASES IS UNPERSUASIVE AS A MATTER OF
CONSTITUTIONAL ANALYSIS AND OUGHT NOT BE EXPANDED ......................11

A. The Insular Cases And The Territorial Incorporation
Doctrine Are Constitutionally Infirm ..................................................12

B. The Insular Cases Rest On Antiquated Notions Of Racial
Inferiority That Ought Not Be Extended ............................................17

CONCLUSION ........................................................................................................21

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

- iii -
Case: 16-4240 Document: 33-2 Filed: 04/19/2017 Pages: 30 (12 of 37)

TABLE OF AUTHORITIES

CASES
Page(s)
Ballentine v. United States, 2006 WL 3298270 (D.V.I. 2006)................................17
Balzac v. Porto [sic] Rico, 258 U.S. 298 (1922) .................................................9, 15

Boumediene v. Bush, 553 U.S. 723 (2008) ..................................................11, 13, 17

Consejo de Salud Playa de Ponce v. Rullan, 586 F. Supp. 2d 22
(D.P.R. 2008) ...................................................................................................5

Davis v. Commonwealth Elections Communications, 844 F.3d 1087
(9th Cir. 2016) .................................................................................................5
Dooley v. United States, 183 U.S. 151 (1901) ........................................................... 9

Downes v. Bidwell, 182 U.S. 244 (1901) .....................................9, 13, 14, 15, 17, 18

Examining Board of Engineers v. Flores de Otero, 426 U.S. 572
(1976) .......................................................................................................10, 14
Huus v. New York & Puerto Rico Steamship Co., 182 U.S. 392 (1901) ................... 9

Igartua de la Rosa v. United States, 32 F.3d 8 (1st Cir. 1994) ................................. 7
Igartua de la Rosa v. United States, 417 F.3d 145 (1st Cir. 2005) ...............7, 16, 17
Late Corp. of the Church of Jesus Christ of Latter-Day Saints v.
United States, 136 U.S. 1 (1890) ..................................................................... 7

Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820) .........................................15

National Bank v. County of Yankton, 101 U.S. 129 (1880) ....................................... 7

Ocampo v. United States, 234 U.S. 91 (1914) ........................................................... 9
Rayphand v. Sablan, 95 F. Supp. 2d 1133 (D.N. Mar. I. 1999) ................................ 8

Reid v. Covert, 354 U.S. 1 (1957) ......................................................................11, 14
Torres v. Commonwealth of Puerto Rico, 442 U.S. 465 (1979)..............................11

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Case: 16-4240 Document: 33-2 Filed: 04/19/2017 Pages: 30 (13 of 37)

Tuaua v. United States, 951 F. Supp. 2d 88 (D.D.C. 2013) ...................................... 5
United States v. Gratiot, 39 U.S. (14 Pet.) 526 (1840) .............................................. 7
United States v. Lebrón-Caceres, 2016 WL 204447 (D.P.R. Jan. 15,
2016) ............................................................................................................2, 5

CONSTITUTIONS, STATUTES, AND RULES
U.S. Const.
amend. XVII ....................................................................................................6
art. I, § 2, cl. 1 ..................................................................................................6
art. I, § 8, cl. 1 ............................................................................................9, 14
art. I, § 8, cl. 17 ..............................................................................................11
art. I, § 9, cl. 5 ..................................................................................................9
art. II, § 1, cl. 2.................................................................................................6
art. IV, § 3, cl. 2 .......................................................................................11, 13
52 U.S.C. § 20310 ......................................................................................................2
Fed. R. App. P. 29 ......................................................................................................1

OTHER AUTHORITIES
American Samoa and the Citizenship Clause, 130 Harv. L. Rev. 1680
(2017) .............................................................................................................14
Biklé, Henry Wolf, The Constitutional Power of Congress Over the
Territory of the United States, 49 Am. L. Register 11 (1901) ......................15
Burnett, Christina Duffy, A Convenient Constitution?
Extraterritoriality After Boumediene, 109 Colum. L. Rev. 973
(2009) .................................................................................................10, 15, 20

Burnett, Christina Duffy, Untied States: American Expansion and
Territorial Deannexation, 72 U. Chi. L. Rev. 797 (2005) ............7, 10, 11, 13

Fuentes-Rohwer, Luis, The Land That Democratic Theory Forgot,
83 Ind. L.J. 1525 (2008) ................................................................................12

Kent, Andrew, Boumediene, Munaf, and the Supreme Court’s
Misreading of the Insular Cases, 97 Iowa L. Rev. 101 (2011) ....................... 9

v
Case: 16-4240 Document: 33-2 Filed: 04/19/2017 Pages: 30 (14 of 37)

Kent, Andrew, Citizenship and Protection, 82 Fordham L. Rev. 2115
(2014) .......................................................................................................16, 19

Lawson, Gary & Guy Seidman, The Constitution of Empire:
Territorial Expansion & American Legal History (2004).............................16

Lawson, Gary & Robert D. Sloane, The Constitutionality of
Decolonization by Associated Statehood: Puerto Rico’s Legal
Status Reconsidered, 50 B.C. L. Rev. 1123 (2008).......................................16
Minow, Martha, The Enduring Burdens of the Universal and the
Different in the Insular Cases, in Reconsidering the Insular
Cases, the Past and Future of the American Empire vii (Gerald
L. Neuman & Tomiko Brown-Nagin eds., 2015)..........................................19
Rivera Ramos, Efrén, Puerto Rico’s Political Status, in The Louisiana
Purchase and American Expansion, 1803-1898 (Sanford
Levinson & Bartholomew H. Sparrow eds., 2005) .................................19, 20
Sparrow, Bartholomew H., The Insular Cases and the Emergence of
American Empire (2006) .........................................................................14, 19
Torruella, Juan R., The Insular Cases: The Establishment of a Regime
of Political Apartheid, 29 U. Pa. J. Int’l L. 283 (2007)...........................16, 19
Vladeck, Stephen I., Petty Offenses and Article III, 19 Green Bag 2d
67 (2015) ........................................................................................................12

vi
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INTEREST OF AMICI CURIAE 1

Amici curiae are Christina Duffy Ponsa, George Welwood Murray Professor

of Legal History at Columbia Law School; Andrew Kent, Professor of Law at

Fordham University School of Law; Gary S. Lawson, Philip S. Beck Professor of

Law at Boston University School of Law; Sanford V. Levinson, W. St. John

Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University

of Texas School of Law; Bartholomew Sparrow, Professor of Government at the

University of Texas at Austin; and Stephen I. Vladeck, Professor of Law at the

University of Texas School of Law. Amici are scholars of constitutional law and

legal history who have studied extensively the constitutional implications of

American territorial expansion, including in the late nineteenth and early twentieth

centuries. Among other things, amici have written and edited collected works

about the Supreme Court’s early-twentieth-century decisions in the so-called

“Insular Cases,” on which the district court’s opinion below partly relied in

resolving Appellants’ constitutional claims.

Pursuant to Federal Rule of Appellate Procedure 29(a), counsel for amici

certifies that this separate brief in support of neither party is necessary because

1
Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), amici certify
that no party’s counsel authored this brief in whole or in part, and that no one other
than amici and their counsel made a monetary contribution toward this brief’s
preparation or submission.
-1-
Case: 16-4240 Document: 33-2 Filed: 04/19/2017 Pages: 30 (16 of 37)

amici—based on their academic expertise and scholarly research—have unique

background and knowledge regarding the Insular Cases’ history and relevance to

the constitutional status of the U.S. territories. Although amici take no position on

the ultimate outcome of Appellants’ constitutional claims, amici have a strong

interest in aiding this Court’s understanding of the Insular Cases.

SUMMARY OF ARGUMENT

In assessing the constitutionality of the Uniformed and Overseas Citizens

Absentee Voting Act (UOCAVA)’s differential treatment of the Northern Mariana

Islands and other U.S. territories, 52 U.S.C. §§ 20310(5)(C), 20310(8), the district

court “turn[ed] to principles” drawn from a series of Supreme Court decisions

called the “Insular Cases” that it deemed “generally applicable to constitutional

challenges involving territories.” SA30. Those “generally applicable principles,”

in the district court’s view, include the territorial incorporation principle—namely,

that the U.S. Constitution does not “‘apply in full’” to U.S. territories “‘until such

time as the territory is incorporated into, or made a part of the United States by

Congress.’” Id. (quoting United States v. Lebrón-Caceres, 2016 WL 204447, at *7

(D.P.R. Jan. 15, 2016)).

Amici take no position on the ultimate legal merits of Appellants’

constitutional claims, but amici strongly disagree with the district court’s view that

the Insular Cases have any relevance to the proper disposition of this case. Those

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decisions—which concerned limited questions about the applicability of certain

federal laws and specific constitutional provisions in the U.S. territories—simply

do not bear on the “issue of first impression” regarding the constitutionality of

selective enfranchisement between U.S. territories that the district court considered

and from which Appellants now appeal. SA30.

Amici submit this brief to explain why this Court should take care to decide

this case without reliance on the Insular Cases—and, indeed, why the Court should

affirmatively reject the relevance of those decisions. Not only would reliance on

the Insular Cases run contrary to the Supreme Court’s instruction, in more recent

decisions, that the Insular Cases should not be expansively construed, but as this

brief explains, those decisions in no way inform the applicability of the federal

right to vote to residents of the so-called “unincorporated” territories. Residents of

all U.S. territories—whether incorporated or not—have historically lacked a

constitutionally based right to vote in federal elections. That result has nothing to

do with the Insular Cases, but instead follows from a straightforward interpretation

of the Constitution’s text and structure. Consistent with that undisputed fact,

Appellants’ challenge is not based on their status as residents of unincorporated

territories, but rather, on their status as former residents of a State. Thus, whatever

“generally applicable [principles],” SA30, may be derived from the Insular Cases,

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this Court should make clear that the decisions are irrelevant to the constitutional

issues in this case.

Moreover, the Supreme Court’s instruction against any expansion of the

reasoning of the Insular Cases—including the “territorial incorporation doctrine,”

of which they are considered emblematic—is well-founded. As various jurists and

a recognized near-consensus of scholars have now recognized, the decisions rest

on unpersuasive reasoning inconsistent with original meaning, now well-settled

constitutional analysis, and present-day disapproval of antiquated imperialist and

racist norms. The deeply problematic reasoning of the Insular Cases is the product

of another age, and it has no place in modern jurisprudence even if (as amici

doubt) it had any validity in earlier times.

ARGUMENT

I. THE INSULAR CASES HAVE NOTHING TO DO WITH APPELLANTS’
CONSTITUTIONAL CLAIMS

The Insular Cases held that the noncontiguous islands annexed at the turn of

the twentieth century were part of the United States for some purposes but not for

others. This holding is commonly understood to have meant that the Constitution

applies fully within States and incorporated territories, but that only certain

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“fundamental” constitutional provisions apply in “unincorporated” territories. That

understanding of the Insular Cases—though persistent 2—is deeply flawed.

Even given their broadest application, the Insular Cases did not establish a

framework for determining the entire Constitution’s reach in the newly acquired

U.S. territories. Their scope was far narrower, as the decisions simply concerned

the reach of particular provisions of the Constitution and federal law in those

territorial holdings. And, as most relevant to this case, none of the Insular Cases

spoke to the application of the Constitution’s voting provisions in the U.S.

territories—whether or not those territories had been “incorporated.” Long before

the Insular Cases were decided, territories lacked voting representation in the

federal government; the Insular Cases did nothing to change that fact. The district

2
E.g., Davis v. Commonwealth Elections Comm’n, 844 F.3d 1087, 1095 (9th
Cir. 2016) (“The Insular Cases held that [the] United States Constitution applies in
full to ‘incorporated’ territories, but that ‘elsewhere, absent congressional
extension, only ‘fundamental’ constitutional rights apply[.]’”); United States v.
Lebrón-Caceres, 2016 WL 204447, at *7 (D.P.R. Jan. 15, 2016) (“In this …
framework, the Constitution does not apply in full to acquired territory until such
time as the territory is incorporated into, or made a part of the United States by
Congress.”); Tuaua v. United States, 951 F. Supp. 2d 88, 94-95 (D.D.C. 2013) (“In
an unincorporated territory, the Insular Cases held that only certain ‘fundamental’
constitutional rights are extended to its inhabitants.”), aff’d, 788 F.3d 300 (D.C.
Cir. 2015); Consejo de Salud Playa de Ponce v. Rullan, 586 F. Supp. 2d 22, 25
(D.P.R. 2008) (“Under the Insular Cases doctrine, only fundamental constitutional
rights extend to unincorporated United States territories, whereas in incorporated
territories all constitutional provisions are in force.”).
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court’s contrary analysis was thus incorrect and should not be repeated by this

Court.

In assessing Appellants’ constitutional claims, the district court reasoned

that the Insular Cases supplied “generally applicable [principles]” governing

Appellants’ constitutional claims, SA30, and it separately stated that “the current

voting situation in Puerto Rico, Guam, and the U.S. Virgin Islands is at least in part

grounded on the Insular Cases,” SA21. Respectfully, those references

misapprehend the scope and meaning of the Insular Cases.

To start, the difference in the baseline voting rights of residents of the States

and territories is attributable to the texts of Article I, Section 2; the Seventeenth

Amendment; and Article II, Section 1 of the Constitution—all of which apply to

States, not to territories. 3 Under those constitutional provisions, States and their

residents enjoy a right to participate in federal elections, while residents of the

3
Under Article II, Section 1, “Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors, equal to the number of
Senators and Representatives to which the State may be entitled in the Congress.”
U.S. Const. art. II, § 1, cl. 2. Under the Seventeenth Amendment, “[t]he Senate of
the United States shall be composed of two Senators from each State, elected by
the people thereof.” And under Article I, Section 2, “[t]he House of
Representatives shall be composed of Members chosen every second Year by the
People of the several States.” Id. art. I, § 2, cl. 1.

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territories do not have the same access to the federal franchise.4 That difference is

a function of constitutional text referring to States, and not to territories of any

kind; it has nothing to do with the Insular Cases, and it certainly has nothing to do

with the distinction between incorporated and unincorporated territories originating

in those decisions.5 Residents of incorporated and unincorporated territories have

always been identically situated with respect to voting rights in federal elections—

4
See, e.g., Igartua de la Rosa v. United States, 417 F.3d 145, 148 (1st Cir.
2005) (en banc) (“That the franchise for choosing electors is confined to ‘states’
cannot be ‘unconstitutional’ because it is what the Constitution itself provides.”);
Igartua de la Rosa v. United States, 32 F.3d 8, 9 (1st Cir. 1994) (“Pursuant to
Article II, therefore, only citizens residing in states can vote for electors and
thereby indirectly for the President.”).
5
Indeed, the Supreme Court spoke in expansive terms about Congress’s
plenary power over territories during the United States’ nineteenth-century
westward expansion, well before the Insular Cases. See, e.g., Late Corp. of the
Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 42 (1890)
(“The territory of Louisiana, when acquired from France … became the absolute
property and domain of the United States, subject to such conditions as the
government, in its diplomatic negotiations, had seen fit to accept relating to the
rights of the people then inhabiting those territories.”); National Bank v. County of
Yankton, 101 U.S. 129, 133 (1880) (“All territory within the jurisdiction of the
United States not included in any State must necessarily be governed by or under
the authority of Congress.”); United States v. Gratiot, 39 U.S. (14 Pet.) 526, 537
(1840) (“Congress has the same power over [U.S. territory] as over any other
property belonging to the United States; and this power is vested in Congress
without limitation; and has been considered the foundation upon which the
territorial governments rest.”); see also Burnett, Untied States: American
Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 814-816, 875
(2005) (“[T]he Insular Cases offered Congress no more latitude in governing
territories than it already enjoyed: Congress had always exercised plenary power
over territories[.]”).

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neither group has a guaranteed right to vote in a federal election under the

constitutional provisions cited above.6 Thus, whatever the present-day validity of

the Insular Cases, any distinction between the voting rights of residents of the

States and the territories in federal elections owes nothing to those decisions.7

Moreover, Appellants do not challenge discrimination against residents of

unincorporated territories as such. Rather, they challenge discrimination among

different groups of former State residents, with respect to a right they claim as

former State residents. The relevant theoretical locus in this case is thus not

6
Even though residents of territories—incorporated or unincorporated—lack
the federal franchise under these constitutional provisions, that does not resolve
Appellants’ claims, which concern discrimination among former State residents
with respect to a right they assert on the basis of that former State residency.
7
In 1999, the U.S. District Court for the Northern Mariana Islands relied on
the Insular Cases to uphold, against an equal protection challenge, the
malapportionment of the Senate of the Commonwealth of the Northern Mariana
Islands (“CNMI”), which allocates the same number of senators to each of the
three municipalities comprising the CNMI despite their significantly different
population numbers (in a manner analogous to the U.S. Senate). See Rayphand v.
Sablan, 95 F. Supp. 2d 1133, 1139-1140 (D.N. Mar. I. 1999), aff’d mem., Torres v.
Sablan, 528 U.S. 1110 (2000). However, Rayphand does not contradict amici’s
position. First, Rayphand concerned local voting mechanisms applicable in the
CNMI, not the federal franchise or voting rights claims of former residents of the
States based on that former residency. Second, respectfully, amici suggest that
Rayphand belongs to the catalogue of decisions that have given undue weight and
significance to the Insular Cases in reading them far too broadly. Compare id. at
1139 (“The primary legal doctrine arising from those cases is that the extent to
which a territory’s inhabitants are entitled to the protections afforded by the U.S.
Constitution is dependent upon the degree to which the territory has been
‘incorporated’ into the United States.”), with infra pp. 10-12.

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residence in an unincorporated territory, but former residence in a State. For this

reason too, the Insular Cases do not supply a coherent framework for the

resolution of Appellants’ constitutional claims. This Court should make clear the

irrelevance of that precedent in resolving those claims.

The district court was wrong to think the Insular Cases established a

comprehensive framework governing application of the Constitution to U.S.

territories even outside the context of the federal franchise. The scope of the cases

was far narrower. Early Insular canon generally concerned the interpretation of

constitutional provisions and federal statutes affecting the applicability of specific

tariff laws,8 while later Insular Cases addressed the application of constitutional

provisions principally related to criminal trials in territorial courts. 9 See, e.g.,

Kent, Boumediene, Munaf, and the Supreme Court’s Misreading of the Insular

Cases, 97 Iowa L. Rev. 101, 108 (2011) (noting “most well-known Insular Cases”

8
See, e.g., Dooley v. United States, 183 U.S. 151, 156-157 (1901) (holding
duties on goods shipped to Puerto Rico did not violate Export Tax Clause, U.S.
Const. art. I, § 9, cl. 5); Huus v. New York & Puerto Rico S.S. Co., 182 U.S. 392,
396-397 (1901) (holding vessels involved in trade between Puerto Rico and U.S.
ports engaged in “domestic trade” under federal tariff laws); Downes v. Bidwell,
182 U.S. 244, 287 (1901) (solo opinion of Brown, J.) (territories not part of phrase
“the United States” as found in Constitution’s Uniformity Clause, U.S. Const. art.
I, § 8, cl. 1).
9
See, e.g., Balzac v. Porto [sic] Rico, 258 U.S. 298, 305 (1922) (Sixth
Amendment right to jury trial inapplicable in Puerto Rico); Ocampo v. United
States, 234 U.S. 91, 98 (1914) (Fifth Amendment grand jury clause inapplicable in
Philippines).
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involved “narrow legal issues” “concerning import and export tariffs and the use of

juries in criminal cases”). None of the Insular Cases established a distinction

between territorial areas where “‘a less-than-complete application of the

Constitution’” governs and territorial areas where the Constitution applies in “full,”

as the district court suggested. SA21. For that reason alone, the district court’s

reference to the Insular Cases—and, implicitly, to the doctrine of territorial

incorporation—added confusion to an already muddled area of law. Cf. Examining

Bd. of Eng’rs v. Flores de Otero, 426 U.S. 572, 599 (1976) (noting “[t]he Court’s

decisions respecting the rights of the inhabitants of Puerto Rico have been neither

unambiguous nor exactly uniform”).

To be sure, over time the Insular Cases have been interpreted by some as

establishing that the Constitution applies in “full” within States and incorporated

territories, but that only “fundamental” constitutional provisions apply in

unincorporated territories. That view, however, “overstate[s] the[] [cases’]

holding.” Burnett, A Convenient Constitution? Extraterritoriality After

Boumediene, 109 Colum. L. Rev. 973, 984 (2009). Indeed, that expansive reading

“confuses matters, for the ‘entire’ Constitution does not apply, as such, anywhere.

Some parts of it apply in some contexts; other parts in others.” Burnett, Untied

States: American Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797,

821 (2005). For example, parts of the Constitution, such as the Seat of

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Government Clause, U.S. Const. art. I, § 8, cl. 17, which grants Congress authority

over the District of Columbia, or the Territory Clause, art. IV, § 3, cl. 2, have never

applied to the States altogether. See Burnett, 72 U. Chi. L. Rev. at 821. And other

constitutional provisions have been understood as inapplicable outside the States,

whether a territory was incorporated or not. See id. at 821 n.102.

Thus, as the Supreme Court has more recently explained, “the real issue in

the Insular Cases was not whether the Constitution extended to [territories], but

which of its provisions were applicable by way of limitation upon the exercise of

executive and legislative power in dealing with new conditions and requirements.”

Boumediene v. Bush, 553 U.S. 723, 758 (2008) (emphasis added). Under a proper

understanding of the Insular Cases, then, this Court’s resolution of Appellants’

constitutional claims should turn on the text, structure, and purposes of the relevant

constitutional provisions at issue, not the Insular Cases.

II. THE TERRITORIAL INCORPORATION DOCTRINE ATTRIBUTED TO THE
INSULAR CASES IS UNPERSUASIVE AS A MATTER OF CONSTITUTIONAL
ANALYSIS AND OUGHT NOT BE EXPANDED

There is a second reason this Court should take care not to extend the reach

of the Insular Cases: the Supreme Court has stated that “neither the [Insular

Cases] nor their reasoning should be given any further expansion.” Reid v. Covert,

354 U.S. 1, 14 (1957) (plurality opinion); see also Torres v. Commonwealth of

P.R., 442 U.S. 465, 475 (1979) (Brennan, J., concurring in the judgment)

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(“Whatever the validity of the [Insular] cases … those cases are clearly not

authority for questioning the application of the Fourth Amendment—or any other

provision of the Bill of Rights—to the Commonwealth of Puerto Rico in the

1970’s.” (internal citations omitted)).

In amici’s judgment, the Supreme Court’s command not to expand the

Insular Cases’ application is well-founded. More than a hundred years after the

Court decided the early cases in the series, the decisions “remain exceptionally

controversial.” Vladeck, Petty Offenses and Article III, 19 Green Bag 2d 67, 76-77

(2015). Indeed, as amici explain below, even when properly understood, the

territorial incorporation doctrine established in the Insular Cases is unpersuasive as

a matter of constitutional first principles and it rests, at least in part, on archaic

notions of racial inferiority and imperial expansionism which courts and

commentators have emphatically repudiated. For those reasons among others, the

Insular Cases have “nary a friend in the world,” Fuentes-Rohwer, The Land That

Democratic Theory Forgot, 83 Ind. L.J. 1525, 1536 (2008), and they ought not be

given any expansive reading by this Court.

A. The Insular Cases And The Territorial Incorporation Doctrine
Are Constitutionally Infirm

This Court should heed the Supreme Court’s admonition to resist further

extension of the Insular Cases because the territorial incorporation doctrine is

constitutionally infirm. The Constitution’s single reference to “Territor[ies],” U.S.
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Const. art. IV, § 3, cl. 2, does not differentiate between “incorporated” and

“unincorporated” territorial lands. Until the Insular Cases, neither the Supreme

Court nor any other branch of government had even intimated that such a

distinction existed. See Burnett, 72 U. Chi. L. Rev. at 817-834 (discussing

Congress’s accepted plenary power to govern U.S. territories in nineteenth century

and Supreme Court’s “expansive” conception of the scope of this Congressional

discretion even before the Insular Cases). And as the Supreme Court itself

explained in Boumediene, the doctrine’s paramount constitutional vice is that the

distinction between incorporated and unincorporated territories lends itself to being

misconstrued (as has repeatedly occurred since its invention, and as the district

court did here) as a broad and generic license to the political branches “to switch

the Constitution on or off at will,” Boumediene, 553 U.S. at 765, by affording them

the discretion to decide whether or not to “incorporate” a territory—an outcome

that the Insular Cases did not sanction, see Part I, supra, and that the Supreme

Court has rejected, id. at 757-758.

Concern over the potential misuse inherent in this vague and unprecedented

doctrinal innovation was evident from the beginning, and carries throughout the

various, fractured opinions of members of the Court in the 1901 case of Downes v.

Bidwell, 182 U.S. 244 (1901), the “most significant of the Insular Cases.”

Examining Bd. of Eng’rs, 426 U.S. at 599 n.30. Downes—which “brought the

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constitutional question of congressional authority” over the U.S. overseas

territories “into sharp relief”—required the Court to determine whether recently

acquired Puerto Rico was part of the “United States” for purposes of the

Constitution’s Uniformity Clause, U.S. Const. art. I, § 8, cl. 1. Bartholomew H.

Sparrow, The Insular Cases and the Emergence of American Empire 80 (2006).

Writing for a deeply divided Court in an opinion no other Justice joined, Justice

Brown concluded that that clause’s reference to the “United States” did not

encompass Puerto Rico. 10 And in a concurring opinion of lasting consequence

(which two Justices joined), Justice White concurred in the Court’s judgment

based on the reasoning that Congress had not formally “incorporated” Puerto Rico

into the Union by legislative act, which rendered the island “merely appurtenant [to

the United States] as … [its] possession.” Downes, 182 U.S. at 341-342. The

dissenters in Downes reacted to Justice White’s reasoning by noting that the idea of

territorial “incorporation” was both unheard of and incomprehensible. “Great

10
Four Justices concurred in Justice Brown’s judgment, but not his reasoning.
See Downes, 182 U.S. at 287, 345 (White, J. and Gray, J. concurring in the
judgment). The remaining four Justices authored or joined “vigorous dissents …
[which] took the position that all the restraints of the Bill of Rights and of other
parts of the Constitution were applicable to the United States Government
wherever it acted.” Reid, 354 U.S. at 13 n.24 (plurality opinion). In significant
ways, Downes was therefore consistent with other early Insular Cases, “[m]any of
[which] were divisive even when decided, yielding close and fractured …
decisions at a time with stronger norms of judicial cohesion than today.” American
Samoa and the Citizenship Clause: A Study in Insular Cases Revisionism, 130
Harv. L. Rev. 1680, 1682 (2017).
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stress is thrown upon the word ‘incorporation,’” wrote Chief Justice Fuller, “as if

possessed of some occult meaning, but I take it that the act under consideration

made Porto [sic] Rico, whatever its situation before, an organized territory of the

United States.” Id. at 373 (Fuller, C.J., dissenting). Justice Harlan put it even

more pointedly: “I am constrained to say that this idea of ‘incorporation’ has some

occult meaning which my mind does not apprehend. It is enveloped in some

mystery which I am unable to unravel.” Id. at 391 (Harlan, J., dissenting).

That newly minted distinction—between “incorporated” and

“unincorporated” territories—eventually commanded a majority of the Court’s

votes in later Insular Cases. See Balzac v. Porto [sic] Rico, 258 U.S. 298, 305

(1922) (“[T]he opinion of Mr. Justice White … in Downes … has become the

settled law of the court.”). Nevertheless, even when accurately understood, the

distinction was not only “unprecedented,” Burnett, 109 Colum. L. Rev. at 982, but

constituted a significant departure from the Supreme Court’s prior conception of

the Constitution’s application to the territories. 11 As one amicus has explained,

11
See Downes, 182 U.S. at 359-369 (Fuller, C.J., dissenting) (citing numerous
Supreme Court decisions “[f]rom Marbury v. Madison to the present day”
establishing that constitutional limits apply with respect to the territories);
Loughborough v. Blake, 18 U.S. (5 Wheat.) 317, 319 (1820) (“[The United States]
is the name given to our great republic, which is composed of States and
territories.”); Biklé, The Constitutional Power of Congress Over the Territory of
the United States, 49 Am. L. Register 11, 94 (1901) (noting shortly prior to
Downes that “in no case in regard to jurisdiction within the territory of the United

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“there is nothing in the Constitution that even intimates that express constitutional

limitations on national power apply differently to different territories once that

territory is properly acquired.” Lawson & Seidman, The Constitution of Empire:

Territorial Expansion & American Legal History 196-197 (2004). In part for that

reason, “no current scholar, from any methodological perspective, [has] defend[ed]

The Insular Cases.” Lawson & Sloane, The Constitutionality of Decolonization by

Associated Statehood: Puerto Rico’s Legal Status Reconsidered, 50 B.C. L. Rev.

1123, 1146 (2008). The supposed constitutional justifications for the Insular

Cases’ unequal treatment of residents of unincorporated territories “are certainly

not convincing today, if they ever were.” Kent, Citizenship and Protection, 82

Fordham L. Rev. 2115, 2128 (2014).

In addition to lacking any anchor in constitutional text, structure, or history,

the territorial incorporation doctrine is in serious tension, if not at war, with the

foundational constitutional principle that “the national government is one of

enumerated powers, to be exerted only for the limited objects defined in the

Constitution,” as dissenting Justices in Downes first explained. Downes, 182 U.S.

States has a limitation of the power of Congress over personal or proprietary rights
been held inapplicable”); see also Igartua de la Rosa, 417 F.3d at 163 (Torruella,
J., dissenting) (noting Insular Cases were “unprecedented in American
jurisprudence and unsupported by the text of the Constitution”); Torruella, The
Insular Cases: The Establishment of a Regime of Political Apartheid, 29 U. Pa. J.
Int’l L. 283, 286 (2007) (“[T]he Insular Cases … squarely contradicted long-
standing constitutional precedent.”).
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at 389 (Harlan, J., dissenting); see also id. at 364 (Fuller, C.J., dissenting) (noting

whatever the bounds of Congress’s authority over the territories “it did not …

follow that [they] were not parts of the United States, and that the power of

Congress in general over them was unlimited”). Again, as the Supreme Court

itself has recently acknowledged in explaining that the Insular Cases have often

been misconstrued, the “Constitution grants Congress and the President the power

to acquire, dispose of, and govern territory, not the power to decide when and

where its terms apply.” Boumediene, 553 U.S. at 765 (emphasis added).

The serious constitutional concerns with the territorial incorporation doctrine

provide a strong reason for this Court not to decide this case based on the Insular

Cases or any distinction between incorporated and unincorporated territories.

B. The Insular Cases Rest On Antiquated Notions Of Racial
Inferiority That Ought Not Be Extended

In addition to the profound constitutional problems with the Insular Cases

and the territorial incorporation doctrine, the decisions rest in important part on

turn-of-the-twentieth-century notions of racial inferiority and imperial governance.

See Igartua de la Rosa v. United States, 417 F.3d 145, 162 (1st Cir. 2005)

(Torruella, J., dissenting) (“The[] [Insular Cases] are anchored on theories of

dubious legal or historical validity, contrived by academics interested in promoting

an expansionist agenda.”); Ballentine v. United States, 2006 WL 3298270, at *4

(D.V.I. 2006) (describing cases as “decided in a time of colonial expansion by the
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United States into lands already occupied by non-white populations”), aff’d, 486

F.3d 806 (3d Cir. 2007). For those reasons, as well, this Court should decline to

rely on the Insular Cases in deciding this case.

The Insular Cases’ reasoning—and in particular, the reasoning that gave rise

to the territorial incorporation doctrine—reflected turn-of-the-century imperial

fervor and the hesitation to admit into the Union supposedly “uncivilized”

members of “alien races” except as colonial subjects. Writing in Downes, for

example, Justice Brown suggested that “differences of race” raised “grave

questions” about the rights that ought to be afforded to territorial inhabitants. See

182 U.S. at 282, 287 (describing territorial inhabitants as “alien races, differing

from us” in many ways). Similarly, Justice White commented on the possibility of

acquiring island territories “peopled with an uncivilized race, yet rich in soil”

whose inhabitants were “absolutely unfit to receive” citizenship. Id. at 306.

Justice White quoted approvingly from treatise passages explaining that “if the

conquered are a fierce, savage and restless people,” the conqueror may “govern

them with a tighter rein, so as to curb their impetuosity, and to keep them under

subjection.” Id. at 302 (internal quotation marks omitted).

The dubious—and in many ways pernicious—foundations of the territorial

incorporation doctrine undoubtedly reflect that the most significant grouping of

Insular Cases reached the Supreme Court following the Nation’s unprecedented

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accession of overseas territories after the Spanish-American War and, as an amicus

has explained, “[a]lthough continental expansion had previously provoked

constitutional questions, never before had the United States added areas this

populated and this remote from American shores.” Sparrow, The Insular Cases,

supra, at 4. Moreover, “[w]hen the Supreme Court reached its judgments in the

Insular Cases, prevailing governmental attitudes presumed white supremacy and

approved of stigmatizing segregation.” Minow, The Enduring Burdens of the

Universal and the Different in the Insular Cases, in Reconsidering the Insular

Cases, the Past and Future of the American Empire vii, vii (Neuman & Brown-

Nagin eds., 2015). As a result, the “outcome [of the Insular Cases] was strongly

influenced by racially motivated biases and by colonial governance theories that

were contrary to American territorial practice and experience.” Torruella, 29 U.

Pa. J. Int’l L. at 286; see also Kent, 82 Fordham L. Rev. at 2128 (noting Supreme

Court offered “frankly racist” rationales in key Insular Cases).

The decisions in fact “reflected many of the attitudes that permeated the

expansionist movement of the United States during the nineteenth century.”

Rivera Ramos, Puerto Rico’s Political Status, in The Louisiana Purchase and

American Expansion, 1803-1898, at 209 (Levinson & Sparrow eds., 2005); see

Sparrow, The Insular Cases, supra, at 10, 14, 57-63. That “ideological outlook”

included “Manifest Destiny, Social Darwinism, the idea of the inequality of

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peoples, and a racially grounded theory of democracy that viewed it as a privilege

of the ‘Anglo-Saxon race.’” Rivera Ramos, Puerto Rico’s Political Status, supra,

at 170. These concepts of “inferior[ity] … justified not treating [territorial

inhabitants] as equals,” and the Insular Cases’ classification of some territories as

“unincorporated … owed much to racial and ethnic factors.” Id. at 171, 174.

Put simply and at the risk of understatement, the racial and colonizing

aspects of the the Insular Cases’ rationales are “now recognize[d] as illegitimate.”

Burnett, 109 Colum. L. Rev. at 992. Such notions have no place in modern

jurisprudence, and courts have rightly repudiated these views in modern case law.

This Court should therefore take care not to expand the Insular Cases beyond their

specific facts or to give further vitality to decisions that by all accounts stand, in

inescapable part, for arcane and anachronistic views.

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CONCLUSION

For those reasons, amici respectfully urge this Court not to apply the Insular

Cases in resolving Appellants’ constitutional challenges in this case.

Respectfully submitted.

/s/ Adriel I. Cepeda Derieux
ADRIEL I. CEPEDA DERIEUX
Counsel of Record
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
(212) 230-8800

KELLY P. DUNBAR
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Avenue, NW
Washington, DC 20006
(202) 663-6000

April 19, 2017

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CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(g), the undersigned hereby certifies that this

brief complies with the type-volume limitation of Circuit Rule 29.

1. In compliance with Circuit Rule 29, the brief contains 4793 words.

2. The brief complies with the typeface and type style requirements of

Fed. R. App. P. 32(a)(5) and 32(a)(6), respectively, because this brief has been

prepared in a proportionately spaced typeface using Microsoft Word 2010 in

Times New Roman 14-point font.

/s/ Adriel I. Cepeda Derieux
ADRIEL I. CEPEDA DERIEUX

April 19, 2017
Case: 16-4240 Document: 33-2 Filed: 04/19/2017 Pages: 30 (37 of 37)

CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of April, I electronically filed the

foregoing with the Clerk of the Court for the U.S. Court of Appeals for the Seventh

Circuit using the appellate CM/ECF system. Counsel for all parties to the case are

registered CM/ECF users and will be served by the appellate CM/ECF system.

/s/ Adriel I. Cepeda Derieux
ADRIEL I. CEPEDA DERIEUX