Though United States v. Vaello Madero did not make waves for its 8-1 majority or for applying current law, it will likely have a large future impact because of a concurrence penned by Justice Gorsuch. Vaello Madero evaluated the scope of Congress’s territorial powers and reaffirmed relatively well-settled doctrine that accords Congress plenary authority over territories if there is a rational basis for its policy decisions. Because no party challenged this framework, Justice Gorsuch joined the majority. But his concurrence highlighted the odd—and in his view unjustified and racist—doctrinal distinction made between “incorporated” and “unincorporated” territories for constitutional purposes.

This distinction developed in the Insular Cases decided at the turn of the 20th century at the height of U.S. imperial expansion. In determining which rights territorial peoples retained, the Court constitutionally distinguished between territories that would be incorporated into the Union—e.g., Louisiana after the Louisiana Purchase—and those the U.S. would eventually relinquish its control over—e.g., the Philippines after the Spanish-American War. For the Court, the expectation of statehood (and the consequent grant of citizenship to residents) meant the Constitution should apply in full. But with no long-term expectation of statehood, an unincorporated territory’s residents lack an expectation of citizenship and accompanying rights, save for those deemed “fundamental.” This affords Congress greater leeway when governing unincorporated territories. Today, there remains only one, tiny, wholly uninhabited incorporated territory.

Justice Gorsuch argues that this distinction is indefensible because it is not grounded in the Fourteenth Amendment’s text. The Citizenship Clause establishes birthright citizenship for “all persons born . . . in the United States.” Other provisions contain more specific wording; for example, the subsequently enacted—and later repealed—Eighteenth Amendment refers to “the United States and all territory subject to the jurisdiction thereof.” Nevertheless, uses of “United States” alone prior to the Fourteenth Amendment’s enactment commonly referred to any area subject to U.S. sovereign authority. In 1820, Chief Justice Marshall explained that “United States” denoted “our great republic, which is composed of states and territories.” That case was followed by a consistent judicial practice of applying the Constitution to the new territories. The expansive use of “United States” is also reflected in other contemporaneous evidence, covering the gamut from censuses and maps to dictionaries and legislative documents. This robust historical evidence overcomes the possibility that the Citizenship Clause’s reference to state citizenship suggests that only those born in states qualify for birthright citizenship. Moreover, the Fourteenth Amendment sought to “nationalize” citizenship, and a plain reading of the text reveals that state citizenship was one constitutional benefit that follows from being born “in the United States” as opposed to a qualifier that modifies when U.S. citizenship is warranted. Thus, at the time of the Fourteenth Amendment’s enactment, the public would have understood the term “United States” to encompass the territories

Yet the Insular Cases eschew this plain reading for an ipse dixit distinction among the territories. At the time, Justice Harlan averred that “this idea of ‘incorporation’ has some occult meaning which my mind does not apprehend.” Reflecting this skepticism, Justice Gorsuch contends this rule was the result of racially discriminatory reasoning, which regarded Puerto Ricans as unequal for their perceived cultural and legal inferiority. The preservation of “fundamental” rights in unincorporated territories seemingly undercuts this point. But that safeguard omits other equally essential rights the Court has deemed secondary—such as the jury right.

The real-world consequences of the Insular Cases are laid bare in Fitisemanu v. United States, a pending Supreme Court cert petition, in which individuals born in American Samoa, an unincorporated territory, have been denied birthright citizenship, even after moving to Utah. The Tenth Circuit, applying the Insular Cases, held that such citizenship could only be conferred by statute and determined that no such grant exists for American Samoans.

The American Samoan government contends that self-rule should outweigh any interest its residents have in U.S. citizenship. Others contend American Samoans have sought U.S. citizenship from the outset. But citizenship should not be subject to such political wrangling. And the Fourteenth Amendment confers U.S. citizenship on those born in U.S. territories. Besides, the benefits of local rule do not matter to the Fitisemanu petitioners, who are Utah residents. Yet, as Americans lacking formal recognition, they are relegated to the status of strangers in a familiar land.

As the Republican drafters of the Fourteenth Amendment recognized over 150 years ago when freedmen confronted black codes and the Jim Crow South, citizenship is so fundamental that statutory law is an insufficient protection; it needed to be enshrined in our constitutional fabric to endure changing political tides. Given Justice Gorsuch’s clarion call for revisiting the Insular Cases’ atextual approach to determining who is entitled to birthright citizenship, the Fitisemanu petitioners may soon have their case for being treated as U.S. citizens heard.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].