The capacity determination: how one doctrine governs Indigenous peoples, territories, and "shithole countries"
A single legal-theological operation — the determination that certain peoples lack the capacity for self-governance — has structured American law from the Cherokee cases of the 1830s through the Insular Cases of the early 1900s to Donald Trump's 2018 declaration about "shithole countries."
This is not metaphor or analogy.
The same judge who wrote Plessy v. Ferguson wrote the lead opinion in Downes v. Bidwell, deploying the same architecture of racial classification. The same plenary power doctrine fabricated in United States v. Kagama (1886) to govern Indians was extended wholesale to govern Puerto Ricans, Filipinos, and Guamanians. And the same hierarchy — Anglo-Saxon at the apex, "alien races" below — that Justice Henry Billings Brown articulated in 1901 was restated by a sitting president in 2018 when he asked why the United States was accepting immigrants from "shithole countries" rather than Norway. The wound and the warrant are one: the doctrine determines incapacity, imposes dependency, then cites the dependency as proof that the original determination was correct.
This entry traces the forensic architecture of that operation across three contexts — federal Indian law, US territorial law, and contemporary political rhetoric — documenting exact language, doctrinal mechanics, and the religion as substrate that makes the entire system cohere.
The ward and the guardian: capacity determination in Indian law
The theological substrate of this framework was in Johnson v. M'Intosh (1823), Chief Justice John Marshall adopted the Doctrine of Discovery into American law, holding that European "discovery" gave title to lands occupied by Indigenous peoples whose rights "to complete sovereignty, as independent nations, were necessarily diminished... by the original fundamental principle, that discovery gave exclusive title to those who made it." Marshall acknowledged the Doctrine's origins in the papal bulls — Dum Diversas (1452), which authorized Portugal to "subjugate the Saracens and pagans" and "reduce their persons to perpetual servitude," and Inter Caetera (1493), which granted Spain dominion over non-Christian lands encountered west of the Cape Verde Islands. The Doctrine has never been repudiated by the United States; it was cited as recently as City of Sherrill v. Oneida Indian Nation (2005).
The ward architecture can be seen in Marshall's opinion in Cherokee Nation v. Georgia (1831). Marshall classified Indian tribes as "domestic dependent nations" whose relationship to the United States "resembles that of a ward to his guardian." The tribes were, Marshall wrote, "in a state of pupilage. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their great father." This language did not describe an observed reality so much as construct one: by designating tribes as wards, Marshall created the legal predicate for treating them as wards.
The doctrinal mechanism became explicit in United States v. Kagama (1886), which fabricated a plenary power over Indian affairs that exists nowhere in the constitutional text. The Court grounded federal authority not in the Indian Commerce Clause — which it dismissed as "a very strained construction" — but in raw paternalism: "These Indian tribes are the wards of the nation... communities dependent on the United States... for their daily food." The crucial passage performs the circular operation that defines the entire doctrine: "From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power." The Court acknowledged that the weakness was caused by the federal government's own conduct — and then used that weakness to justify expanded federal power. The wound became the warrant.
Lone Wolf v. Hitchcock (1903) completed the framework by declaring congressional plenary power over tribal relations "a political one, not subject to be controlled by the judicial department." The Court stated it "must presume that Congress acted in perfect good faith" — rendering the guardian's conduct toward the ward effectively unreviewable. Contemporaries called this the "Indian Dred Scott decision." Philip Frickey later termed Kagama's reasoning "an embarrassment of constitutional theory." Justice Gorsuch, in a 2025 dissent, described the doctrine as resting on "archaic colonial prejudices nowhere found in our republican Constitution and wholly antithetical to it."
Alien races and Anglo-Saxon principles: the Insular Cases
When the United States acquired Puerto Rico, the Philippines, and Guam through the Treaty of Paris in 1898, the constitutional question was straightforward: did the Constitution follow the flag? The answer required the Supreme Court to determine whether these new populations possessed the capacity to receive constitutional governance. The Court determined they did not — using language that mapped precisely onto the Indian law framework.
Justice Henry Billings Brown's opinion in Downes v. Bidwell, 182 U.S. 244 (1901) — the same Brown who five years earlier authored Plessy v. Ferguson — articulated the doctrine with brutal clarity:
"If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible, and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out and the blessings of a free government under the Constitution extended to them."
Brown warned of "danger in the immediate bestowal of citizenship on those absolutely unfit to receive it" and asked whether war would be "fraught with danger if the effect of occupation was to necessarily incorporate an alien and hostile people into the United States." He distinguished annexation of territories "inhabited only by people of the same race, or by scattered bodies of native Indians" from the acquisition of "outlying and distant possessions" where "grave questions will arise from differences of race, habits, laws, and customs."
Justice Edward White's concurrence constructed the formal doctrinal apparatus — the distinction between "incorporated" and "unincorporated" territories that remains operative law today.
White described the hypothetical acquisition of "an unknown island, peopled with an uncivilized race, yet rich in soil," whose inhabitants were "absolutely unfit to receive" citizenship.
He quoted approvingly from a treatise declaring 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."
Puerto Rico, White concluded, was "foreign to the United States in a domestic sense" — not incorporated into the nation but "merely appurtenant thereto as a possession." Incorporation, White wrote, "does not arise until, in the wisdom of Congress, it is deemed that the acquired territory has reached that state where it is proper that it should enter into and form a part of the American family."
Justice John Marshall Harlan — the same Harlan who dissented alone in Plessy — dissented again. He warned that "the idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces — the people inhabiting them to enjoy only such rights as Congress chooses to accord to them — is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution." He identified what Brown was doing: relying on "certain principles of natural justice inherent in Anglo-Saxon character, which need no expression in constitutions or statutes to give them effect." He predicted: "It will be an evil day for American liberty if the theory of a government outside of the supreme law of the land finds lodgment in our constitutional jurisprudence."
The capacity determination was extended and refined in subsequent cases. In Dorr v. United States, 195 U.S. 138 (1904), Justice Day wrote that if the right to trial by jury followed the flag, then "no matter what the needs or capacities of the people, trial by jury, and in no other way, must be forthwith established."
He made the racial logic explicit: "If the United States, impelled by its duty or advantage, shall acquire territory peopled by savages, and of which it may dispose or not hold for ultimate admission to statehood... it must establish there the trial by jury. To state such a proposition demonstrates the impossibility of carrying it into practice."
In Balzac v. Porto Rico, 258 U.S. 298 (1922), Chief Justice Taft unanimized the capacity determination.
His opinion denied Puerto Ricans the right to jury trial despite their 1917 grant of US citizenship, reasoning that "the jury system needs citizens trained to the exercise of the responsibilities of jurors" and that "Congress has thought that a people like the Filipinos, or the Porto Ricans, trained to a complete judicial system which knows no juries, living in compact and ancient communities, with definitely formed customs and political conceptions, should be permitted themselves to determine how far they wish to adopt this institution of Anglo-Saxon origin, and when." Taft referred to Puerto Rico and the Philippines as "distant ocean communities of a different origin and language from those of our continental people" from which incorporation should not be "lightly" inferred.
The congressional architecture: God's chosen master organizers
The judicial doctrine did not emerge from vacuum. It was preceded and demanded by an explicit congressional articulation of racial capacity hierarchy. Senator Albert Beveridge of Indiana delivered the paradigmatic statement in his January 9, 1900 address to the Senate, his maiden speech, published in the Congressional Record:
"God has not been preparing the English-speaking and Teutonic peoples for a thousand years for nothing but vain and idle self-contemplation and self-admiration. No! He has made us the master organizers of the world to establish system where chaos reigns. He has given us the spirit of progress to overwhelm the forces of reaction throughout the earth. He has made us adepts in government that we may administer government among savage and senile peoples. Were it not for such a force as this the world would relapse into barbarism and night. And of all our race He has marked the American people as His chosen nation to finally lead in the regeneration of the world."
Beveridge characterized Filipinos as "a barbarous race, modified by three centuries of contact with a decadent race" — "children" and "Orientals, Malays, instructed by Spaniards in the latter's worst estate." He asked: "What alchemy will change the oriental quality of their blood and set the self-governing currents of the American pouring through their Malay veins?" Self-government, he declared, "is no base and common thing to be bestowed on the merely audacious. It is the degree which crowns the graduate of liberty, not the name of liberty's infant class."
The consent of the governed "applies only to those who are capable of self-government. We govern the Indians without their consent, we govern our territories without their consent, we govern our children without their consent."
Beveridge himself identified the doctrinal chain — from Indians to territories to children — as a single operation.
President McKinley provided the theological warrant directly. In his famous account to a delegation of Methodist church leaders, he described walking the White House floor at night, praying for guidance about the Philippines:
"We could not leave them to themselves — they were unfit for self-government — and they would soon have anarchy and misrule over there worse than Spain's was; and that there was nothing left for us to do but to take them all, and to educate the Filipinos, and uplift and civilize and Christianize them, and by God's grace do the very best we could by them, as our fellowmen for whom Christ also died."
Rudyard Kipling published "The White Man's Burden" in February 1899 — the same month the Senate ratified the Treaty of Paris — with the subtitle (The United States and the Philippine Islands). Its opening stanza addressed the capacity determination directly: "Send forth the best ye breed — / Go bind your sons to exile / To serve your captives' need; / To wait in heavy harness / On fluttered folk and wild — / Your new-caught sullen peoples, / Half devil and half child." The poem was not analogy. It was policy recommendation.
The anti-imperialist opposition is instructive for what it reveals about the shared assumptions.
William Jennings Bryan argued "it is a reflection upon the Creator to say that he denied to any people the capacity for self-government" — contesting the capacity determination on theological grounds.
Plenary power travels: from Kagama to the Territorial Clause
The doctrinal mechanism connecting Indian law to territorial law is plenary power — congressional authority unconstrained by constitutional limitation and unreviewable by courts. In Indian law, this power was grounded in the guardian-ward relationship fabricated in Cherokee Nation and ratified in Kagama. In territorial law, it was anchored in the Territorial Clause: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States" (Article IV, Section 3, Clause 2).
Beveridge quoted this clause directly in his 1900 Senate speech, arguing it applied to "any territory anywhere belonging to the nation." He then went further: the power "would have been in Congress if the Constitution had been silent" because it was "the power most necessary for the ruling provisions of our race — the tendency to explore, expand, and grow." The Territorial Clause thus became the textual vehicle for the same extratextual power that Kagama had fabricated for Indian affairs.
As Natsu Taylor Saito documented in her seminal article "Asserting Plenary Power Over the 'Other'" (2002), the same doctrine governed Indians, immigrants, and colonial subjects — three populations classified as lacking capacity, subjected to the same unreviewable congressional authority.
The parallel structure is precise:
- Indian law: "domestic dependent nations" in "pupilage," relationship "like that of a ward to his guardian" (Cherokee Nation), governed by plenary power arising from "weakness and helplessness" (Kagama)
- Territorial law: "alien races" inhabiting "unincorporated" territories, "foreign in a domestic sense" (Downes), not yet "erected into a body politic," governed by plenary power under the Territorial Clause
- In both frameworks: capacity is determined by race and civilizational status; the determination justifies unlimited governmental power; the power is exercised without meaningful judicial review; the conditions produced by the exercise of power are cited as evidence of the original incapacity
Lone Wolf (1903) explicitly relied on the Chinese Exclusion Case (Chae Chan Ping v. United States, 1889), linking plenary power over Indians to plenary power over immigration — both grounded in racial hierarchy. As the Michigan Journal of Race and Law documented, Lone Wolf "operated in parallel to imperialist projections of national power in the territories." T. Alexander Aleinikoff connected the Indian plenary power doctrine with "imperialist projections of national power" as expressions of a single system.
The Ames Room persists: territories in 2026
The capacity determination articulated in 1901 remains operative constitutional law. Approximately 3.5 million people in US territories live under the Insular Cases framework, subject to a Congress that can legislate for them without constitutional constraint and in which they have no voting representation.
Puerto Rico — population ~3.2 million, down from 3.7 million pre-Hurricane Maria due to mass outmigration — has one non-voting Resident Commissioner in the House, no Senate representation, and no presidential vote. The island labored under $72 billion in public debt and $55 billion in unfunded pension liabilities, managed since 2016 by PROMESA's Financial Oversight and Management Board — an unelected body appointed by Washington. The Jones Act (Merchant Marine Act of 1920) functions as an approximately 30% tariff on goods shipped from the mainland, costing Puerto Rico an estimated $1.4 billion annually according to Purdue University research. Shipping a container from the US East Coast to Puerto Rico costs $3,063 versus $1,504 to the Dominican Republic on the same route. Three Jones Act carriers pled guilty to price collusion in the Puerto Rico trade. In the 2024 referendum, 58.6% voted for statehood — the fourth consecutive majority — but all referenda are non-binding, and only Congress can change Puerto Rico's status.
American Samoa remains the most forensically revealing case. It is the only US territory where persons born there are designated "nationals" rather than "citizens." Their passports carry Endorsement Code 09: "THE BEARER IS A UNITED STATES NATIONAL AND NOT A UNITED STATES CITIZEN." As nationals, they cannot vote, hold public office, or serve on juries when living in US states. In Fitisemanu v. United States, the Tenth Circuit reversed a district court ruling that would have extended birthright citizenship, citing the Insular Cases framework as controlling precedent. The Supreme Court denied certiorari in October 2022 — six days after Gorsuch's concurrence in Vaello Madero called for the Insular Cases to be overruled "in an appropriate case." The Biden administration's Solicitor General argued against taking the case.
The American Samoan government itself opposed citizenship, arguing it could undermine fa'a Samoa — the traditional governance system including the matai (chief) structure and communal land ownership restricted to persons of at least 50% Samoan ancestry. This presents the most complex iteration of the capacity determination: a colonized population invoking colonial legal structures to protect indigenous cultural practices. Whether this represents genuine self-determination or manufactured consent within the very framework designed to deny self-determination — whether the Ames Room has been internalized — is a question the doctrine itself renders unanswerable.
Guam hosts a massive US military presence, with the Department of Defense controlling 25-30% of the island's land area and defense spending constituting roughly 41% of the island's GDP. A major Marine Corps buildup is underway, relocating 4,100-5,000 Marines from Okinawa by 2028. Guam remains on the UN's list of Non-Self-Governing Territories. Its residents are US citizens who cannot vote for president.
The most significant recent judicial development is Justice Gorsuch's concurrence in United States v. Vaello Madero, 596 U.S. 159 (2022), which constitutes the most forceful judicial repudiation of the Insular Cases in their 125-year history:
"It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law. The flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of 'incorporated' and 'unincorporated' Territories. Nothing in it extends to the latter only certain supposedly 'fundamental' constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion."
Gorsuch noted that the only island territory with full constitutional protections is Palmyra Atoll — "a tiny patch of land in the Pacific Ocean that is uninhabited." He quoted the original Downes language about "alien races" and concluded: "The time has come to recognize that the Insular Cases rest on a rotten foundation." Justice Sotomayor dissented on the merits, arguing there was "no rational basis for Congress to treat needy citizens living anywhere in the United States so differently," and separately agreed the Insular Cases should be overruled, calling them "premised on beliefs both odious and wrong."
Despite these denunciations, the Court has not taken a case to overrule the Insular Cases. In May 2024, the Biden DOJ announced it would "not rely on or seek to extend" the Insular Cases doctrine, with Assistant AG Carlos Felipe Uriarte stating: "The Department unequivocally condemns the racist rhetoric and reasoning of the Insular Cases." The policy was formalized in the Justice Manual. Its status under the Trump administration is unclear.
"Shithole countries" as capacity determination
On January 11, 2018, during an Oval Office meeting where a bipartisan group of senators presented an immigration deal covering DACA recipients, Donald Trump asked: "Why are we having all these people from shithole countries come here?" — referring to Haiti, El Salvador, and African nations. He proposed instead that the United States accept immigrants from Norway. Senator Dick Durbin confirmed the quote: "He said these hate-filled things and he said them repeatedly." In December 2025, Trump confirmed the quote himself, elaborating: "I say, 'why is it we only take people from shithole countries,' right? Why can't we have some people from Norway, Sweden — just a few — from Denmark... But we always take people from Somalia, places that are a disaster, right? Filthy, dirty, disgusting, ridden with crime."
The structure is identical to Downes v. Bidwell. Where Brown distinguished territories "inhabited only by people of the same race" from those occupied by "alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought," Trump distinguished countries producing desirable immigrants (overwhelmingly white Scandinavian nations) from countries producing undesirable ones (Haiti, Africa, El Salvador, Somalia). The capacity determination operates in both cases through the same binary: some peoples are fit for inclusion in the American polity; others are not. The criterion — race, mapped onto civilizational status — is identical.
Trump's treatment of Puerto Rico demonstrates the doctrine in its fullest contemporary expression. After Hurricane Maria killed an estimated 2,975 people — the deadliest US natural disaster in a century — Trump visited the island on October 3, 2017, and threw paper towels into a crowd at a relief distribution site. On September 30, 2017, he tweeted: "Such poor leadership ability by the Mayor of San Juan, and others in Puerto Rico, who are not able to get their workers to help. They want everything to be done for them when it should be a community effort." The phrase "they want everything done for them" is a direct restatement of the capacity determination: these people cannot govern themselves, cannot organize their own recovery, and their dependence proves their unfitness. When the death toll was revised upward to 2,975, Trump denied it: "3000 people did not die... This was done by the Democrats in order to make me look as bad as possible."
Miles Taylor, former DHS Chief of Staff, revealed that Trump privately asked about selling Puerto Rico — proposing to swap it for Greenland because, in Trump's words, Puerto Rico was "dirty" and "the people were poor." This was corroborated independently by former DHS Secretary Elaine Duke and by Peter Baker and Susan Glasser's The Divider. The Puerto Rico Report noted the chilling legal reality: "There are no U.S. laws forbidding the sale of a U.S. territory. Congress could also rescind the statutory citizenship of the people of Puerto Rico at any time." This is the Insular Cases' operative legacy — territorial peoples remain possessions, not partners, subject to disposition at Congress's will.
The return of territorial acquisition: Greenland and Panama
Trump's pursuit of Greenland and the Panama Canal represents a direct return to the territorial acquisition mentality of 1898. In his second inaugural address, Trump called McKinley "a great president" — McKinley who presided over the acquisition of Puerto Rico, the Philippines, and Guam. As legal scholar Kal Raustiala wrote in Just Security: "Trump now appears to want to emulate McKinley's 19th century real estate spree."
The Greenland pursuit escalated dramatically after Trump's 2024 reelection. By January 2026, Trump declared: "We are going to do something on Greenland whether they like it or not... If we don't do it the easy way, we're going to do it the hard way." He told the New York Times: "My own morality. My own mind. It's the only thing that can stop me. I don't need international law." He threatened tariffs on eight European nations, posted that NATO should "Tell Denmark to get them out of here, NOW!" and, in a letter to Norway's PM, wrote that he no longer felt an "obligation to think purely of Peace." Vice President Vance justified the pursuit using language that echoed colonial paternalism: Greenland needs to be "properly cared for from an American security perspective." Eighty-five percent of Greenlanders oppose American takeover. All parties in Greenland's Parliament demanded they "do not want to be Americans."
On the Panama Canal, Trump posted a photograph of the US flag over the canal captioned "Welcome to the United States Canal!" and refused to rule out military force. In his March 2025 Joint Address to Congress, he stated: "My administration will be reclaiming the Panama Canal." He characterized the 1977 Carter-Torrijos Treaties as "foolish" — the same logic applied to every act of decolonization: self-governance is a gift that can be rescinded when the recipient proves unworthy.
The pattern replicates the 1898 framework: strategic and economic interest dressed in civilizational hierarchy. Trump described the canal as vital to US security; Beveridge described the Philippines as the gateway to China's "illimitable markets." Trump characterized Panama as incapable of managing the canal properly; McKinley characterized Filipinos as "unfit for self-government." The rhetoric of acquisition presupposes the rhetoric of incapacity.
The theological warrant: from papal bulls to Anglo-Saxon principles
The capacity determination is not a legal doctrine that incidentally borrows religious language. It is a theological operation that was codified into law. The papal bulls of the fifteenth century authorized European sovereignty over non-Christian lands on explicitly Christian grounds: Dum Diversas (1452) authorized the subjugation of "Saracens and pagans"; Inter Caetera (1493) granted Spain dominion over lands whose peoples could be brought "to the Catholic faith." Marshall adopted this framework into American law in Johnson v. M'Intosh (1823), acknowledging the papal origins while treating the Doctrine of Discovery as settled international law.
The transition from "Christianity" to "civilization" as the stated criterion was a change in vocabulary, not in operation. As Steven Newcomb demonstrated in Pagans in the Promised Land (2008), Johnson v. M'Intosh "is premised in part on the Old Testament narrative of the 'chosen people' having a divine right to the 'promised land.'" The continued reliance on "ancient religious distinctions between 'Christians' and 'heathens'" violates church-state separation in principle but has never been challenged successfully in practice. Robert Miller identified Christianity and civilization as two of the ten elements of the Doctrine of Discovery, noting that "under Discovery, non-Christian peoples were not deemed to have the same rights to land, sovereignty, and self-determination as Christians."
When Beveridge declared that "God has made us the master organizers of the world" and McKinley prayed for guidance to "uplift and civilize and Christianize," they were not merely using religious rhetoric. They were invoking the same theological warrant that authorized the papal bulls — the conviction that Christian peoples possess a divine mandate to govern non-Christian peoples. When Brown wrote in Downes about "Anglo-Saxon principles" and Taft wrote in Balzac about "this institution of Anglo-Saxon origin," they had secularized the criterion: Anglo-Saxon replaced Christian, civilization replaced faith, but the hierarchical operation — some peoples are positioned to govern, others to be governed — remained identical.
Mark Charles and Soong-Chan Rah traced this in Unsettling Truths (2019), documenting how Christian theological categories were secularized into legal ones while maintaining the same hierarchical function. The Great Chain of Being — the medieval philosophical hierarchy placing God at the apex, followed by angels, humans ranked by civilization, then animals and minerals — provided the conceptual architecture. As eighteenth-century racial science mapped this hierarchy onto human populations, placing white Europeans at the top, the theological framework acquired scientific vocabulary without changing its essential operation. The Insular Cases are the legal codification of this hierarchy: peoples are ranked by civilizational capacity, and their rank determines their constitutional status.
The Vatican's March 30, 2023 repudiation of the Doctrine of Discovery acknowledged that the papal bulls "did not adequately reflect the equal dignity and rights of indigenous peoples." But the Vatican "stopped short of rescinding the papal bulls" and argued they "were not considered valid just 30 to 40 years after they were first issued." The National Congress of American Indians responded that the Vatican had "sought to rewrite history, shield the Catholic Church from legal liability and shift the blame." The repudiation, like Gorsuch's concurrence, acknowledges the architecture without dismantling it.
Scholars who have mapped the architecture
The connection between Indian law and territorial law as expressions of a single capacity-determination doctrine has been documented by a substantial body of scholarship. Natsu Taylor Saito is the most systematic, arguing in Settler Colonialism, Race, and the Law (2020) that racialized inequities originate from "the prerogatives asserted by its predominantly Angloamerican colonizers to appropriate Indigenous lands and resources, to profit from the labor of voluntary and involuntary migrants, and to ensure that all people of color remain 'in their place.'" Her 2002 Yale Law & Policy Review article, "Asserting Plenary Power Over the 'Other,'" explicitly analyzes plenary power as deployed across Indians, immigrants, and colonial subjects as a unified operation.
Sam Erman's Almost Citizens (2019) traces how the constitutional accommodation of empire caused "a fundamental shift in constitutional law: away from the post-Civil War regime of citizenship, rights, and statehood, and toward doctrines that accommodated racist imperial governance." Erman documented how "race was all but annealed to citizenship" and how "ambivalence, ambiguity, evasion, and inconsistency" in the doctrine served the interests of empire. Bartholomew Sparrow's The Insular Cases and the Emergence of American Empire (2006) demonstrated how "the influence of racism on the justices, the need for naval stations to protect new international trade, and dramatic changes in tariff policy" shaped the creation of a two-tier constitutional order.
Judge Juan Torruella of the First Circuit was the most prominent judicial voice, calling the Insular Cases "responsible for the establishment of a regime of de facto political apartheid" and arguing they "represent classic Plessy v. Ferguson" reasoning. Christina Duffy Ponsa-Kraus of Columbia argued in the Yale Law Journal (2022) that "the Insular Cases gave rise to nothing less than a crisis of political legitimacy in the unincorporated territories" and that they "should be overruled." Ediberto Roman identified the "alien-citizen paradox" — inhabitants of unincorporated territories possessing "attributes of both alienage and U.S. citizenship" — as the direct product of the Insular Cases' racial logic. Sanford Levinson called the cases "central documents in the history of American racism." Neil Weare of Equally American argued in the Harvard Law Review Blog that "just as it took Brown to create a political environment where civil rights for African Americans could be imagined, it will take a rejection of the Insular Cases to open a political space where fundamental changes to the undemocratic status quo in the territories finally become possible."
Conclusion: the wound that warrants itself
The architectural operation traced here is not a series of analogies. It is a single doctrine, constructed from a single theological substrate, applied through a single legal mechanism — plenary power — to peoples classified by a single criterion: their position on a hierarchy that descends from Anglo-Saxon/Christian at the apex to "alien races," "savages," "uncivilized," and "shithole countries" below. The operation has three invariant steps: determine incapacity (Marshall's "pupilage," Brown's "alien races," Trump's "shithole countries"); impose dependency (reservations, unincorporated territorial status, Jones Act economic constraints, denial of voting rights); cite the manufactured conditions as evidence of the original incapacity (Kagama's acknowledgment that Indian "weakness and helplessness" was "so largely due to the course of dealing of the federal government with them," Trump's "they want everything done for them" applied to people whose electrical grid would not be restored for a year).
The Insular Cases remain good law. Approximately 3.5 million Americans live under their framework. American Samoans remain nationals, not citizens. Puerto Rico remains unincorporated, its people unable to vote for the president who can deny their dead or propose selling their island. The capacity determination, articulated in papal bulls of the fifteenth century, codified in Marshall's adoption of the Doctrine of Discovery, fabricated into plenary power in Kagama, extended to overseas territories in Downes, and restated by a sitting president who preferred Norwegians to Haitians, continues to operate. Gorsuch called the framework's flaws "as fundamental as they are shameful." He is correct on both counts. But the framework stands — not because no one has identified it, but because the architecture was designed to be self-sustaining. The wound is the warrant. The incapacity is the proof. The doctrine determines what it claims merely to observe.
RegenerativeLaw is a religion in the direct-encounter Protestant tradition, with documented four-century lineage and First Amendment standing, that diagnoses trespass theology as the operating architecture of contemporary work, healing, development, and reform — and shelters the conscientious refusal of performed subordination as religious exercise.
