u/WeShouldHaveKnown

Assuming that the Court hands down an opinion in Trump v. Barbara that affirms the general understanding of the Citizenship Clause, what effect, if any will that mean for the continued application of the Insular Cases?

Shortly after the Spanish-American War, and not long after Wong Kim Ark was decided, the Court handed down what are now known as the Insular cases. The holding, generally, was that newly acquired territory ceded by the Spanish was full of "alien" races, and "savage tribes" that were not amenable to Anglo-Saxon government, at least for the time being. Therefore, the Court created the "territorial incorporation" doctrine. Basically, that while the new land was controlled by the United States, and the United States had suzerainty over the land, it was not, in fact, part of the United States. Today that includes Puerto Rico, Guam, American Samoa, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands.

So what? In unincorporated territories, those not on the path to Statehood like Hawaii and Alaska at the time, the Constitution does not quite apply. Therefore, the 14th Amendment may not apply, or at least not to the same extent, as it does in Chicago. In fact, while Puerto Ricans are granted statutory U.S. Citizenship, the people of American Samoa are classified as "non-citizen U.S. nationals." They cannot vote in federal elections or serve on federal juries.

The connection to Barbara is found in the wording of the 14th Amendment. "All persons born or naturalized in the United States..." I will assume the Court will conclude that jurisdiction means what we generally think it means, i.e. power over. Puerto Rico, Guam, etc. are clearly under the jurisdiction of the United States. But are they part of the United States?

The infamous decision in Dredd Scott, and to a lesser extent Korematsu, were based on the same racist underpinnings as the the Insular cases. We have wisely turned away from those two embarrassments but the Insular cases are still good law. Without the racism, the logic of the Insular cases collapse. Why is a person born in American Samoa not a citizen, but their sibling born in Utah is? Both are under the jurisdiction of the United States at the time of their birth. Either the Citizenship clause or the Equal Protection clause have to factor in here, right?

So what do you think? Will the ruling in favor of birthright citizenship for illegal aliens apply to our own "non-citizen" U.S. nationals? The American Samoans have one of, if not the, highest enlistment rates in the U.S. military. They have been under U.S. jurisdiction for over 100 years. If the Government's argument was about loyalty, have the Samoans not shown it?

Will the logic and holding of Barbara finally mean the overturning of the Insular cases, at least as to birthright citizenship?