The Constitutional Status of Laws in the Territories: Where Justice Gorsuch Got It Wrong on the Insular Cases
The reasoning in the Insular Cases, which arose after the Treaty of Paris of 1898 ceded control over Puerto Rico, the Philippines and Guam, has been widely castigated as a set of racist pronouncements, most notably by Justice Neil Gorsuch in United States v. Vaello Madero, where he suggested they be overruled. His critique, like those before and after him, falls wide of the mark. The distinctive rules governing all legislative, executive, and judicial activities in the territories from the time of the Northwest Ordinance (1787) onward, called for great flexibility in the design of local territorial governments. The governance doctrines in both Puerto Rico and the Philippines were designed to allow for the development of distinctive local institutions, which are still very much in demand today, as evidenced by the recent Puerto Rico Oversight, Management, and Economic Stability Act. Within the broad guidelines of the Territory Clause, it made eminent good sense to groom the Philippines for independence while allowing Puerto Rico the option of statehood for itself and citizenship for its residents. Moreover, as a matter of general natural law theory, a local institution like the jury is consistent with, but not required, by natural law principles that stick to the universal guarantees of the right to be heard before an unbiased tribunal, without any specification of institutional norms. Thus, the distinction between territories eligible for statehood and those that are not, and the limited suite of constitutional protections available to those that are not, withstands the criticisms of Justice Gorsuch in Vaello Madero.
Cite as Richard A. Epstein, The Constitutional Status of Laws in the Territories: Where Justice Gorsuch Got It Wrong on the Insular Cases, 18 J.L. & Liberty 564 (2026)