The Supreme Court has made a terrible habit of saying things that later generations understand to be odious. The court is ever-conscious that its reasoning will be important for future cases, so it is the one branch of the federal government that regularly takes the time to justify its rulings.
Yet the court has all too often shown itself to carry the biases, prejudices, and ignorance of its own time. In some cases, this has led to disgraceful results. The Dred Scott ruling tore the country apart. The doctrine of “separate but equal” created a racist caste system that is antithetical to American ideals.
In other cases, though, the republic has managed to find a way to move forward past such outdated language in the court’s decisions.
The Insular Cases are another embarrassment for the Supreme Court. They were decisions handed down at the turn of the last century, when the United States became a global empire. The cases established the general principle that different rules could apply in U.S. territorial holdings than the constitutional requirements that applied within the states. In that sense, the Insular Cases set the stage for the U.S. to become an imperial power like those in Europe, with all of the unfairness and predation that colonialism entails.
The decisions, written largely by the same justices who gave us “separate but equal,” infamously denigrated the inhabitants of new U.S. territories as “alien races” and “savage tribes.” It is not surprising that many legal scholars want the court to disavow the Insular Cases. These scholars now include Justice Neil Gorsuch, who wrote recently in Vaello-Madero that the Insular Cases should be “squarely” overruled because they rest on a “rotten foundation.”
As the representative in Congress for the people of American Samoa, however, I wish to sound a note of caution before the court overrules this precedent.
Samoans were subjected to the disgraceful things written by Justice Gorsuch’s predecessors, it is true. Yet on one level, the rule underlying the Insular Cases makes practical sense. Despite the cases’ checkered history, the U.S. is a global power that necessarily acquires property and holds territory overseas. If the rule from the Insular Cases did not exist, then the U.S. might be required to extend its Constitution everywhere the flag flies. This could entail extending requirements about jury trials, uniform tariffs, taxation, and other constitutional principles in new and impractical ways.
For American Samoa, the rule from the Insular Cases has another important justification: It gives the territories room to determine their own status within the U.S. Because the full force of the Constitution does not apply in American Samoa, we have developed our own framework for preserving our traditional culture and system of government. We still have land that is communally owned by families according to traditions that have persisted over centuries. We still recognize the authority of traditional chiefs, even within our legislature. In the last 100 years, we have moved past the ignorance of the court from the Insular Cases era.
On their “rotten foundation,” we built a workable approach to balancing our proud allegiance to the U.S. with the survival of our distinctive way of life. If the U.S., through the courts or otherwise, intends to change that balance, then we expect the people of American Samoa to have a voice in our future.
Gorsuch is right to be embarrassed on behalf of the Supreme Court. But his reaction brings to mind the warning of Chesterton’s fence.
As G.K. Chesterton noted in 1929, a “more modern type of reformer” might come across a fence in the road and demand its removal, failing to see its use. The better approach, as Chesterton explained, would be to say: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you come back and tell me that you do see the use of it, I may allow you to destroy it.”
The people of American Samoa have managed to transcend the ignorance behind the rulings in the Insular Cases. We built a long-standing and productive relationship on that “rotten foundation” that the Supreme Court handed us. The current justices should think hard before they disrupt that relationship to address their shame today.
Some have fretted about the problem of colonies. But wherever that term applies, it certainly does not fit American Samoa. An estimated 90% of our inhabitants are of Samoan origin. American Samoa is the only state or territory in which the indigenous population constitutes, beyond a majority, an overwhelming share of the people. It remains that way because American Samoa exercises control of its own borders, and alienation of the land is prohibited.
The U.S. government’s tendency toward a “one-size-fits-all” approach would be inconsistent with what we have. Such an approach cannot work when legislating political status questions for those of us who live in the territories.
Aumua Amata Coleman Radewagen represents American Samoa in the U.S. House of Representatives.
