The Public Response to Controversial Supreme Court Decisions: The Insular Cases

In the Insular Cases, the Supreme Court established a new category of areas and persons coming under the sovereignty of the United States. Added to (1) the member states of the Union and (2) the existing territories (and states to be), was (3) territory "belonging to" the United States, but not a part of it. Justice Edward White proposed this doctrine—that territories were of two types, "incorporated" territories, those fit to be states, and non-incorporated territories, to be the property of the United States—in his concurring opinion in Downes v. Bidwell . ¹ Congress could govern these latter territories as it wished, subject to "fundamental" protections under the Constitution, those protecting individual liberties rather than those granting political participation.