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Downes v. Bidwell, 182 U.S. 244 (1901), was a case in which the United States Supreme Court decided whether United States territories were subject to the provisions and protections of the United States Constitution This question is sometimes stated as "does the Constitution follow the flag?". The resulting decision narrowly held that the U.S. Constitution did not necessarily apply to territories. Instead, the United States Congress had jurisdiction to create law within territories in certain circumstances, particularly dealing with revenue, that would not be allowed by the U.S. Constitution for proper states within the union. It has become known as one of the "Insular Cases".

The case specifically concerned a merchant, Samuel Downes, who owned S. B. Downes & Company. His company had imported oranges into the port of New York from the newly acquired territory of Puerto Rico and had been forced to pay import duties on them. His claim was that, as a United States territory, such duties were under the jurisdiction of Article I, Section 8 of the U.S. Constitution, which provides that "all duties, imposts, and excises shall be uniform throughout the United States." Since the duty on oranges did not exist for other parts of the United States, he argued that it should not exist for Puerto Rico.

The U.S. Supreme Court decided, in a five to four decision, that newly annexed territories were not properly part of the United States for purposes of the U.S. Constitution in the matter of revenues, administrative matter, and the like. However, the court was careful to note that the Constitutional guarantees of a citizen's rights of liberty and property were applicable to all: such guarantees "... cannot be under any circumstances transcended ..." said Justice Edward Douglass White in his concurring opinion. Territories were only due the full protections of the Constitution when the U.S. Congress had incorporated them as an "integral part" of the United States.

The dissent written by Justice John Marshall Harlan held that the U.S. Congress was always bound to enact laws within the jurisdiction of the Constitution. In it, he said, "This nation is under the control of a written constitution, the supreme law of the land and the only source of the powers which our government, or any branch or officer of it, may exert at any time or at any place." He held that the Congress had no existence, and therefore had no authority, outside of the U.S. Constitution.

The idea of territorial incorporation is generally agreed to have arisen from Justice White's concurring decision noted above. Note that incorporation in this case does not refer to the legal process whereby a company takes on certain of the characteristics of a person (for which, see incorporation). The concept of territorial incorporation is that the United States can be proprietor of a territory without having actually incorporated the territory into the United States. These unincorporated territories are not due the full benefits of the U.S. Constitution, as noted from Justice White's decision above.

This idea has been used in court cases ever since in affirming that the citizens of certain territories can be subject to laws and regulations that are not Constitutionally applicable to other citizens of the United States. Many citizens of territories that have been designated unincorporated have seen the principle of territorial incorporation as a form of oppression (see, for example, Román, Ediberto, "The Alien-Citizen Paradox and Other Consequences of U.S. Colonialism", Florida State University Law Review, 1998).

Downes v. Bidwell. FindLaw.com Supreme Court Case Law. Retrieved on February 17, 2005. The Insular Cases. Dan MacMeekin, Island Law. Retrieved on February 17, 2005.