Are Hawaiians, Filipinos, Puerto Ricans and other people in U.S. protectorates entitled to full Constitutional rights?

After the Spanish American War, the United States took control of Puerto Rico, Cuba, the Philippines and Guam. It also moved quickly to assume power over Hawaii. People on these islands were now under the power of the U.S. Constitution. But did that grant them equal protections under the law?

The matter came to the Supreme Court in a series of disputes known as the Insular cases. In one of the most important of the cases, a man named Osaki Mankichi was convicted of manslaughter by a 9-to-3 jury vote in a Hawaiian court. This was notable because the U.S. Constitution requires unanimous verdicts. If Mankichi had been tried in, say, Kansas, he would have been a free man. Why should Hawaii be any different?

Nonetheless, the majority of the Supreme Court felt that Congress could treat these newly acquired territories as it saw fit, and that people convicted under Hawaiian law had no rights under the U.S. Constitution.

This infuriated John Marshall Harlan, who argued that the United States was governed by the Constitution, not Congress. Congress was itself a creation of the Constitution. How, then, could a person living under the power of the US Constitution, as Osaki Mankichi was, be unable to challenge seemingly arbitrary and discriminatory acts of Congress?

The Constitution, he wrote in a stinging dissent, “clearly forbids a conviction in any criminal prosecution except upon the unanimous verdict of a petit jury. In other words, neither the life not the liberty of any person can be taken under the authority of the United States except in the mode thus prescribed.”

Having lived through the Civil War, Harlan believed that inequality was, in itself, a precursor of discord and division. More importantly, it was a clear violation of the Constitution. That was true of Black people living under segregation, and true of Hawaiians, Filipinos, Puerto Ricans and others living under cobbled-together colonial governments. When his colleagues insisted that the brown-skinned people of these islands lacked the “necessities” to participate in democratic institutions, Harlan sharply disagreed.

“God bless our dear country!” he exclaimed in the midst of the court’s consideration of the Insular cases. “God bless every effort to sustain and strengthen it in the hearts of the people of every race subject to its jurisdiction and authority!”