JURY TRIALS AND THE TERRITORIAL INCORPORATION GAP

In 1901, the Supreme Court held that the United States could control territorial land possessions indefinitely, without plans to eventually grant statehood. Over the next twenty-one years, the Court handed down what are infamously known as the Insular Cases: a series of decisions that reaffirmed the distinctions between “incorporated territories”—those destined for statehood—and “unincorporated territories,” the fates of which remained unclear. Artificially distinguishing these two types of territories, the Insular Cases carved out certain provisions of the U.S. Constitution that would not extend to the unincorporated territories. In reaching this conclusion, the Court created the territorial incorporation doctrine: the judicial means by which to incorporate (or limit) constitutional rights in the unincorporated territories.

While the incorporation of constitutional rights against the unincorporated territories has largely stalled over the last century, incorporation of such rights against the states has emerged and solidified itself as an ever-expanding doctrine under the Fourteenth Amendment. Thus, as selective incorporation continues to march forward, rights now applicable against the states remain inapplicable against the territories an asymmetrical result that propagates colonial attitudes, permits disparate treatment, and denies U.S. citizens in the unincorporated territories the full significance of their citizenship.

This asymmetry is the “territorial incorporation gap.” This Note aims to bridge that gap by arguing that the Seventh Amendment’s civil jury trial right should be incorporated in Puerto Rico. To that end, this Note proposes an unlikely and reluctant solution: judicial application of the territorial incorporation doctrine, the lasting vestige of the rightly maligned Insular Cases.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2026, Columbia Law School; Articles Editor, Columbia Law Review. I would like to thank Professor Christina D. Ponsa-Kraus for her valuable guidance throughout the writing process. For their helpful suggestions, thank you to James Campbell, Professor Emmanuel Hiram Arnaud, and Neil Weare. Finally, I would like to thank the members of the Columbia Law Review for their tireless and thoughtful editorial work.

“The basic right to a civil jury trial is a fundamental liberty interest . . . . The Seventh Amendment applies within the states, commonwealths, and territories of the United States.”
— Gonzalez-Oyarzun v. Caribbean City Builders, Inc. (D.P.R. 2014). 1 Gonzalez-Oyarzun v. Caribbean City Builders, Inc., 27 F. Supp. 3d 265, 275 (D.P.R. 2014), vacated and remanded, 798 F.3d 26 (1st Cir. 2015).

“[T]he inescapable conclusion [is] that trial by jury in American Samoa as of the time when Jake King went to trial on the criminal charges here involved would not have been, and is not now, ‘impractical and anomalous’.”
— King v. Andrus (D.D.C. 1977). 2 King v. Andrus, 452 F. Supp. 11, 17 (D.D.C. 1977).

Introduction

At the turn of the twentieth century, the Supreme Court released a series of infamous opinions known as the Insular Cases. Littered with racist diatribes, the opinions addressed the legal status of the territories acquired in the aftermath of the Spanish–American War and, in doing so, laid the foundations of American imperialism. Guam, the Philippines, and Puerto Rico were placed in a legal purgatory: part of the United States, but with limited constitutional rights and privileges. Thus, these territories—labeled “unincorporated territor[ies]” 3 Rassmussen v. United States, 197 U.S. 516, 525 (1905); see also Christina Duffy Ponsa-Kraus, The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories, 131 Yale L.J. 2449, 2452 n.2 (2022) (noting that “[t]he Court first used the term ‘unincorporated’ with respect to U.S. territories in Rassmussen”). —were relegated to second-class status within our newfound colonial empire. 4 Today, after Filipino and Cuban independence and additional acquisitions, the current list of unincorporated territories is: American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. Developments in the Law: The U.S. Territories, 130 Harv. L. Rev. 1616, 1617 (2017). The result of this second-class status has been a constitutional rights gap, whereby territorial residents receive fewer protections than their state counterparts.

Along with many political and sovereign rights, two constitutionally secured individual rights have been neglected in the territories: the rights to civil and criminal jury trials. These protections, guaranteed by Article III, 5 U.S. Const. art. III, § 2, cl. 3 (“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . .”). the Sixth Amendment, 6 Id. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .”). and the Seventh Amendment, 7 Id. amend. VII (“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . .”). have been applied inconsistently (if at all) throughout the territories and mark two of the few rights not guaranteed by the Constitution to all territorial inhabitants. 8 See Andrew Kent, The Jury and Empire: The Insular Cases and the Anti-Jury Movement in the Gilded Age and Progressive Era, 91 S. Cal. L. Rev. 375 app. (2018) (detailing how most constitutional rights were guaranteed in Puerto Rico either by constitutional incorporation, congressional legislation, local legislation, or military or executive order); id. at 382 (“[J]ury guarantees were the only rights which U.S. policymakers in Washington actually wanted to withhold from residents of unincorporated territories.”); Ponsa-Kraus, supra note 3, at 2472 (“[N]early every right [the Supreme Court] considered [in the Insular Cases and their progeny] turned out to be fundamental in every unincorporated territory, with the exception of the federal rights to an indictment by a grand jury and a jury trial.”); Michael D. Ramsey, The Originalist Case Against the Insular Cases, 77 Fla. L. Rev. 517, 589–90 (2025) (arguing that overruling the Insular Cases would extend the Constitution’s criminal and civil jury trial rights to the unincorporated territories).

While territorial inhabitants have been consistently denied their legal equality, resistance to this jurisprudential thread has increased in recent years, perhaps most pointedly by Justice Neil Gorsuch, who has called for the Insular Cases to be overruled. 9 See United States v. Vaello Madero, 142 S. Ct. 1539, 1557 (2022) (Gorsuch, J., concurring) (“[T]he time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them.”). Similarly, the Department of Justice announced in July 2024 that it no longer considers the Insular Cases in its work. 10 See DOJ, Just. Manual § 1-21.100 (2024) (“[I]t is the Department’s view that the racist language and logic of the Insular Cases deserve no place in our law. Department litigators can and should include similar statements, as appropriate, in filings addressing the Insular Cases.”). While the second Trump Administration has not yet indicated if it intends to continue this practice, the policy remains a part of the DOJ Justice Manual. Id. These government actors join the list of academics who have long argued that the Insular Cases must be overturned to promote legal equality between the states and unincorporated territories. 11 See, e.g., Adriel I. Cepeda Derieux, To Lift a Dark Cloud: The Insular Cases’ Stubborn Vitality, Their Place in Civil Rights Law, and the Need to Overrule Them, 56 Suffolk U. L. Rev. 503, 514–19 (2023) (arguing that the Insular Cases and the territorial incorporation doctrine should be overruled); Adriel I. Cepeda Derieux & Rafael Cox Alomar, Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases, 53 Colum. Hum. Rts. L. Rev. 721, 728–29 (2022) (“The Insular Cases—and, specifically, the territorial incorporation doctrine that they commonly stand for—meet every factor that the Supreme Court has said might merit the Court to overrule its own precedent.”); Sarah M. Kelly, Toward Self-Determination in the U.S. Territories: The Restorative Justice Implications of Rejecting the Insular Cases, 28 Mich. J. Race & L. 109, 142–43 (2023) (noting that congressional overturning of the Insular Cases would be a “meaningful symbolic step” toward restorative justice); Ramsey, supra note 8, at 590–91 (arguing that the Constitution’s text and relevant history contradict the Court’s reasoning in the Insular Cases); Neil Weare, Why the Insular Cases Must Become the Next Plessy, Harv. L. Rev. Blog (Mar. 28, 2018), https://harvardlawreview.org/blog/2018/03/why-the-insular-cases-must-become-the-next-plessy/
[https://perma.cc/V5NW-CWZM]; see also Gary Lawson & Guy Seidman, The First “Incorporation” Debate, in The Louisiana Purchase and American Expansion, 1803–1898, at 19, 36 (Sanford Levinson & Bartholomew H. Sparrow eds., 2005) (“[T]he doctrine of the Insular Cases simply makes no sense.”). Yet despite these efforts, the Insular Cases remain untouched to this day.

This territorial incorporation gap, whereby individual rights have been unequally incorporated in the states and territories, must be reconsidered and bridged. But given the staying power of the Insular Cases, it has become clear that both courts and litigating parties need to approach this issue from a new perspective to achieve lasting change. While much scholarship is focused on overturning the Insular Cases, 12 See supra note 11. this Note argues that the solution to closing the rights gap between the states and the territories can be found in the unlikeliest of places: the Insular Cases themselves. Despite their imperial thrust, the Insular Cases and their progeny provide a clear set of judicial standards that are familiar to the constitutional incorporation analysis. This Note argues that courts and litigating parties should reconsider these judicial standards and use them to argue for the incorporation of constitutional rights in unincorporated territories.

The starting point should be jury trial rights. The incorporation of the Sixth or Seventh Amendments against the territories has not been examined by the Supreme Court since 1922, when it explained in Balzac v. Porto Rico that neither applied in Puerto Rico. 13 258 U.S. 298, 304–07 (1922). Since then, the Sixth Amendment’s criminal jury trial right has been incorporated against the states and only one of the territories. 14 See Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (“Because . . . trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal court—would come within the Sixth Amendment[] . . . .”); King v. Andrus, 452 F. Supp. 11, 17 (D.D.C. 1977) (incorporating the Sixth Amendment’s jury trial right against American Samoa) . And while the Seventh Amendment has not yet been incorporated, 15 See, e.g., Chicago, Rock Island & Pac. Ry. Co. v. Cole, 251 U.S. 54, 56 (1919) (holding that the Seventh Amendment was not incorporated against the states). it is a question of when, not if, considering the Court’s increasingly successful project of fully incorporating the Bill of Rights against the states. 16 See Richard Boldt & Dan Friedman, Constitutional Incorporation: A Consideration of the Judicial Function in State and Federal Constitutional Interpretation, 76 Md. L. Rev. 309, 325 (2017) (“[B]y the early decades of the twenty-first century, virtually all of the protections in the Bill of Rights had been incorporated against the states.”); see also Thomas v. Humboldt County, 223 L. Ed. 2d 141, 141 (2025) (mem.) (statement of Gorsuch, J., respecting the denial of certiorari) (arguing that the Court should revisit incorporation of the Seventh Amendment but conceding that this case was an inadequate vehicle).

To incorporate the jury trial right in the remaining territories, the courts need only look to the 1977 case, King v. Andrus, in which the U.S. District Court for the District of Columbia applied the Insular Cases and held that the Sixth Amendment jury trial right applied in American Samoa. 17 452 F. Supp. at 17. Undisturbed to this day, King marks the only standing federal judicial opinion incorporating a jury trial right against an unincorporated territory. 18 The U.S. District Court for the District of Puerto Rico incorporated the Seventh Amendment’s civil jury trial right against Puerto Rico, but the First Circuit vacated the decision. Gonzalez-Oyarzun v. Caribbean City Builders, Inc., 27 F. Supp. 3d 265, 275 (D.P.R. 2014), vacated and remanded, 798 F.3d 26 (1st Cir. 2015). To reach this conclusion, the district court did not deride the Insular Cases, nor did it repurpose them. 19 The “repurposing project” argues that the Insular Cases should be maintained and built on to achieve two goals: “cultural accommodation and continued U.S. sovereignty.” Ponsa-Kraus, supra note 3, at 2457 (emphasis omitted); see also Russell Rennie, Note, A Qualified Defense of the Insular Cases, 92 N.Y.U. L. Rev. 1683, 1707 (2017) (arguing that the Insular Cases can be repurposed to protect cultural traditions in the unincorporated territories). While this Note does argue that the Insular Cases can provide some utility, its goals are distinct from the repurposing project. The repurposing project suggests that the constitutional inequality inherent in the Insular Cases can be useful. This Note, however, argues that the Insular Cases can be used to escape constitutional inequality. Thus, while the repurposing project embraces the counterintuitive benefits of second-class legal status, this Note wholly rejects anything less than equality under the law. Rather, the court merely applied the judicial standard laid out in the Insular Cases and incorporated a constitutional right.

About forty years later, the District Court for the District of Puerto Rico issued a similar opinion in Gonzalez-Oyarzun v. Caribbean City Builders, Inc., holding that the civil jury trial right was fundamental “within the states, commonwealths, and territories of the United States” and, therefore, was incorporated against both the territories and the states. 20 27 F. Supp. 3d at 280. This opinion was “unsurprising[ly]” 21 Arturo V. Bauermeister, LinkedIn, Civil Jury Trials in Puerto Rico Courts? No, Says the First Circuit. (Aug. 17, 2015), https://www.linkedin.com/pulse/civil-jury-trials-puerto-rico-courts-says-first-bauermeister/ [https://perma.cc/TUF4-VG3S]. overturned by the First Circuit Court of Appeals, 22 Gonzalez-Oyarzun, 798 F.3d at 30. but the district court’s opinion nonetheless shows a viable means by which courts can apply the terms of the Insular Cases to pursue what the Insular Cases sought to prevent: constitutional equality.

Many judges, litigators, and academics have rightfully lambasted the racist roots that undergird the Insular Cases. 23 See, e.g., United States v. Vaello Madero, 142 S. Ct. 1539, 1552 (2022) (Gorsuch, J., concurring) (“The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”); Consolidated Opening Brief for Petitioner Unión de Trabajadores de la Industria Eléctrica y Riego, Inc. at 59, Fin. Oversight & Mgmt. Bd. v. Aurelius Inv., LLC, 140 S. Ct. 1649 (2020) (Nos. 18-1334, 18-1475, 18-1496, 18-1514, 18-1521), 2019 WL 4034611 (“The Insular Cases reflect outdated theories of imperialism and racial inferiority that have outlived their usefulness.”); Ponsa-Kraus, supra note 3, at 2455 (“[T]he Court implicitly embraced the view that the theory of political legitimacy underlying the Constitution allowed for an exception, born of practical necessity and motivated by racism, permitting a representative democracy to govern people deemed inferior indefinitely without representation.”). This Note does not disagree with that impulse; every day that the Insular Cases remain good law is another day in which territorial inhabitants live in a state of “separate and unequal.” 24 Juan R. Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal 5 (1985). Yet identifying the “rotten foundation[s]” of the Insular Cases, it seems, is not enough. 25 Vaello Madero, 142 S. Ct. at 1557 (Gorsuch, J., concurring). Instead, this Note will argue that the best path forward is a reluctant embrace of the Insular Cases, which, if applied correctly to Puerto Rico, can bridge the inequality inherent in the territorial incorporation gap. And while it is outside the scope of this analysis, there is no reason why this argument could not be revised and applied to advocate for jury trial rights—among other constitutional rights—in other unincorporated territories.

This Note proceeds in three parts. Part I explores the Insular Cases and their historical backdrop. Departing from centuries of American expansionism, the annexation of the unincorporated territories in 1898 was the first major foray outside mainland North America. 26 See infra note 54 and accompanying text. The territories’ geographic distances and cultural divides led politicians and the courts to squabble over how these territories should—or constitutionally must—be governed. Against this backdrop, the Supreme Court stumbled through the Insular Cases: by first inventing the territorial incorporation doctrine—under which certain constitutional protections would not apply in the territories—then reworking and reiterating this confused legal standard over decades. 27 What exactly the Insular Cases legally stand for is debated even now. An early formulation of the constitutional question was whether the Constitution “followed the flag.” Ponsa-Kraus, supra note 3, at 2466 (internal quotation marks omitted). Answers to this question have varied. Contemporary theorists argued across the spectrum: from “absolute congressional power, totally unfettered by other constitutional constraints” to the entire Constitution applying in full. Pedro A. Malavet, “The Constitution Follows the Flag . . . But Doesn’t Quite Catch Up With It”: The Story of Downes v. Bidwell, in Race Law Stories 111, 135 (Rachel F. Moran & Devon Wayne Carbado eds., 2008). As it relates to this Note, it is clear from the case law that “fundamental limitations” on congressional action “certainly apply within unincorporated territories.” Ponsa-Kraus, supra note 3, at 2453. So long as the Insular Cases exist, expanding the list of “fundamental” territorial rights is the central goal of this Note. Fifty years later, the Court would crystallize the main elements of the doctrine: For a right to be judicially incorporated against unincorporated territories, the right must be (1) “fundamental” 28 Downes v. Bidwell, 182 U.S. 244, 268 (1901) (plurality opinion) (“Doubtless Congress, in legislating for the territories, would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments . . . .”); id. at 291 (White, J., concurring) (“[T]here may nevertheless be restrictions of so fundamental a nature that they cannot be transgressed, although not expressed in so many words in the Constitution.”). and (2) neither “impracticable” nor “anomalous.” 29 See Reid v. Covert, 354 U.S. 1, 74 (1957) (Harlan, J., concurring) (“[T]here is no rigid and abstract rule that Congress . . . must exercise [congressional power overseas] subject to all the guarantees of the Constitution, no matter what the conditions and considerations are that would make adherence to a specific guarantee altogether impracticable and anomalous.”). As discussed in section I.A, some courts have evaluated both elements of this test, while others have held that the territorial incorporation doctrine is satisfied if either element is met. Given the uncertainty among the courts, this Note assumes the more restrictive formulation of the test—which requires that both elements be met—for the sake of completeness.

Part I then considers how the Court’s application of the territorial incorporation doctrine has departed from its sibling project: state incorporation of constitutional rights. The territorial incorporation doctrine is territory-specific, considering the factual background of the territory where the right may be incorporated. 30 Balzac v. Porto Rico, 258 U.S. 298, 309–10 (1922) (explaining that constitutional jury trial rights had been incorporated in Alaska but not Puerto Rico or the Philippines in part because of “the needs or capacities of the people” and the historical lack of jury trials in the unincorporated territories (internal quotation marks omitted) (quoting Dorr v. United States, 195 U.S. 138, 148 (1904))). As a result, it is fruitful to compare state and territorial incorporation through the lens of Puerto Rico, which, despite its extensive colonial history and integration of Anglo-American common law features, 31 See infra text accompanying notes 204–217. still features a glaring incorporation gap: the Sixth Amendment criminal jury trial right. And while the incorporation gap has remained static in recent years, recent case law suggests that the Seventh Amendment may be incorporated against the states, 32 See Thomas v. Humboldt County, 223 L. Ed. 2d 141, 142 (2025) (mem.) (statement of Gorsuch, J., respecting the denial of certiorari) (noting that the Court “should confront its Seventh Amendment” incorporation denial “soon”); McDonald v. City of Chicago, 561 U.S. 742, 765 & n.13 (2010) (noting that the Court would likely find in favor of Seventh Amendment incorporation if the question were squarely before the Court). which would only further widen the incorporation gap. Thus, Part I moves on to evaluate the jury trial right in Puerto Rico and in the states today.

Part II details how the incorporation gap, and specifically the denial of jury trial rights, adversely affects Puerto Rican residents. In civil cases, plaintiffs are more likely to receive favorable results—such as larger awards and punitive damages—in front of a jury; therefore, the inability to present a civil case to a jury leads to unequal and worse outcomes. 33 See Harry Kalven, Jr. & Hans Zeisel, The American Jury 62–63 (1966) (finding that judges and juries disagree on verdicts in 19% of criminal cases and 22% of civil cases); Reid Hastie, David A. Schkade & John W. Payne, A Study of Juror and Jury Judgments in Civil Cases: Deciding Liability for Punitive Damages, 22 Law & Hum. Behav. 287, 306 (1998) (“In the cases we studied individual jurors exhibited a persistent tendency to favor the plaintiffs, concluding that punitive damages were warranted when judges had concluded they were not. These verdicts are not anomalies; they were consistently obtained for the factual circumstances and with standard instructions on the law . . . .”); W. Kip Viscusi, Do Judges Do Better? [hereinafter Viscusi, Do Judges Do Better?], in Punitive Damages: How Juries Decide 186, 207 (Cass R. Sunstein, Reid Hastie, John W. Payne, David A. Schkade & W. Kip Viscusi eds., 2002) [hereinafter Punitive Damages] (noting that jurors were more “predisposed toward excessive awarding of punitive damages” than judges). Furthermore, the Puerto Rican Constitution guarantees only an incomplete right to a criminal jury trial: Only nine of twelve jurors are required to render a guilty verdict. 34 P.R. Const. art. II, § 11. While the Puerto Rican Supreme Court has tried to artificially incorporate the Sixth Amendment’s unanimity right into territorial jurisprudence, 35 See Pueblo v. Torres Rivera, 204 P.R. Dec. 288, 300–01 (2020) (holding that the U.S. Supreme Court’s decision in Ramos v. Louisiana, 140 S. Ct. 1390 (2020)—in which the Court incorporated the Sixth Amendment’s unanimity requirement against the states—applied to Puerto Rican criminal proceedings); Pueblo v. Santa Vélez, 177 P.R. Dec. 61, 65 (2009) (holding that becausethe Sixth Amendment’s jury trial right applies against the states through the Due Process Clause of the Fourteenth Amendment, it therefore applies to Puerto Rico—thus circumventing the territorial incorporation doctrine). the lack of territorial incorporation of the Sixth Amendment leaves criminal defendants’ liberty interests at risk, even when a quarter of the jury believes them to be not guilty.

Part III argues that the solution is a clear statement from the Supreme Court incorporating jury trial rights against Puerto Rico. While overturning the Insular Cases may be a more direct path to constitutional equality for Puerto Ricans and other residents of the unincorporated territories, the Court does not have to unravel the Insular Cases to hold that jury trial rights apply to Puerto Rico. Instead, the Court could take this small step toward constitutional equality in the territories by taking the Insular Cases and their progeny on their face and applying the two relevant legal standards—“fundamental” and “impracticable and anomalous”—to the Seventh Amendment jury trial right in Puerto Rico. 36 Reid v. Covert, 354 U.S. 1, 74 (1957) (Harlan, J., concurring); Downes v. Bidwell, 182 U.S. 244, 268 (1901) (plurality opinion).

In sum, this Note argues that the Insular Cases themselves provide the opportunity to move toward constitutional equality in Puerto Rico, despite the attempts of Congress and the Court to relegate Puerto Ricans to second-class status. To make its argument, this Note will evaluate American influence on the Puerto Rican legal system, consider Puerto Rican legal history from before the Spanish–American War to the present, and conclude that Puerto Ricans (almost all of whom are U.S. citizens 37 The Jones–Shafroth Act of 1917 established qualifications for wholesale naturalization of Puerto Rican residents, many of whom accepted—perhaps reluctantly—Congress’s offer of citizenship. An Act to Provide a Civil Government for Porto Rico, and for Other Purposes (Jones–Shafroth Act), ch. 145, § 5, 39 Stat. 951, 953 (1917); see also José Trías Monge, Puerto Rico: The Trials of the Oldest Colony in the World 79 (1997) [hereinafter Trías Monge, Oldest Colony] (noting that only 288 people refused American citizenship out of Puerto Rico’s entire population, which during the implementation of the Jones–Shafroth Act was “well over one million” people). ) are and always have been worthy of the right to jury trials. While this solution would not disturb the larger constitutional relationship between the United States and Puerto Rico—a relationship that must also be reevaluated—it would help bridge constitutional inequality in Puerto Rico and potentially all of the unincorporated territories.