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Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution
In this groundbreaking study of American imperialism, leading legal scholars address the problem of the U.S. territories. Foreign in a Domestic Sense will redefine the boundaries of constitutional scholarship.
More than four million U.S. citizens currently live in five “unincorporated� U.S. territories. The inhabitants of these vestiges of an American empire are denied full representation in Congress and cannot vote in presidential elections. Focusing on Puerto Rico, the largest and most populous of the territories, Foreign in a Domestic Sense sheds much-needed light on the United States� unfinished colonial experiment and its legacy of racially rooted imperialism, while insisting on the centrality of these “marginal� regions in any serious treatment of American constitutional history. For one hundred years, Puerto Ricans have struggled to define their place in a nation that neither wants them nor wants to let them go. They are caught in a debate too politicized to yield meaningful answers. Meanwhile, doubts concerning the constitutionality of keeping colonies have languished on the margins of mainstream scholarship, overlooked by scholars outside the island and ignored by the nation at large.
This book does more than simply fill a glaring omission in the study of race, cultural identity, and the Constitution; it also makes a crucial contribution to the study of American federalism, serves as a foundation for substantive debate on Puerto Rico’s status, and meets an urgent need for dialogue on territorial status between the mainlandd and the territories. Contributors. José Julián Álvarez González, Roberto Aponte Toro, Christina Duffy Burnett, José A. Cabranes, Sanford Levinson, Burke Marshall, Gerald L. Neuman, Angel R. Oquendo, Juan Perea, Efrén Rivera Ramos, Rogers M. Smith, E. Robert Statham Jr., Brook Thomas, Richard Thornburgh, Juan R. Torruella, José Trías Monge, Mark Tushnet, Mark Weiner
More than four million U.S. citizens currently live in five “unincorporated� U.S. territories. The inhabitants of these vestiges of an American empire are denied full representation in Congress and cannot vote in presidential elections. Focusing on Puerto Rico, the largest and most populous of the territories, Foreign in a Domestic Sense sheds much-needed light on the United States� unfinished colonial experiment and its legacy of racially rooted imperialism, while insisting on the centrality of these “marginal� regions in any serious treatment of American constitutional history. For one hundred years, Puerto Ricans have struggled to define their place in a nation that neither wants them nor wants to let them go. They are caught in a debate too politicized to yield meaningful answers. Meanwhile, doubts concerning the constitutionality of keeping colonies have languished on the margins of mainstream scholarship, overlooked by scholars outside the island and ignored by the nation at large.
This book does more than simply fill a glaring omission in the study of race, cultural identity, and the Constitution; it also makes a crucial contribution to the study of American federalism, serves as a foundation for substantive debate on Puerto Rico’s status, and meets an urgent need for dialogue on territorial status between the mainlandd and the territories. Contributors. José Julián Álvarez González, Roberto Aponte Toro, Christina Duffy Burnett, José A. Cabranes, Sanford Levinson, Burke Marshall, Gerald L. Neuman, Angel R. Oquendo, Juan Perea, Efrén Rivera Ramos, Rogers M. Smith, E. Robert Statham Jr., Brook Thomas, Richard Thornburgh, Juan R. Torruella, José Trías Monge, Mark Tushnet, Mark Weiner
- GenresHistory
440 pages, Paperback
First published May 1, 2001
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January 5, 2023
Catholics believe in limbo, which is a temporary destination that is neither heaven nor hell. Puerto Rico has been in a legal limbo for more than a century: it is neither free nor equal, neither completely self-governing nor is it equal to a state. Island residents have are citizens, but do not enjoy equal rights with other American citizens. Instead, Puerto Rico has an "intermediate state of ambiguous existence for an indefinite period,� as Justice Fuller wrote in 1901.
This book examines the history of Puerto Rico and discusses its prospects for equality. The book
grew out of a conference at Yale Law School marking the centenary of the Spanish-American War.
In 2022, the SCOTUS reaffirmed the second-class status of American citizens living in Puerto Rico. The SCOTUS upheld the right of Congress to exclude residents of the island from the
Supplemental Security Income (SSI) program, which aids low-income elderly, disabled and blind people. The Court ruled in U.S. v. Vaello Madero that the Constitution does not require Congress to extend SSI to residents of Puerto Rico to the same extent as to residents of the States. SSI benefits are available to U.S. citizens living in any of the 50 states, District of Columbia and the Northern Mariana Islands. Excluded from SSI along with Puerto Ricans are those in the U.S. Virgin Islands and Guam.
In other words, even though needy islanders are U.S. citizens, living in American territory, they
are not entitled to the same benefits as those living on the mainland or in the Marianas.
How did Puerto end up in limbo? A quick review of the history is informative.
The island had been a Spanish colony for 400 years before US troops landed in July 1898 during the Spanish-American War.
The Treaty of Paris ending the war states, “The civil rights and political status of the native
inhabitants of the territories hereby ceded to the United States shall be determined by the
DzԲ.�
When Americans debated the status of the former Spanish colonies, the views of the colonial peoples were not considered. The acquistion of territories was influenced by powerful views of racial and cultural superiority and inferiority. Puerto Ricans and Filipinos were deemed unready for full self-government.
The Foraker Act of 1900, which Puerto Ricans had no sayso in crafting, gave Puerto Rico
subordinate status rather than equal status as Americans, and left them unprotected by many
fundamental constitutional guarantees. The island would be governed by the US Congress in
which they have no representation. In 1917, the Jones Act would confer U.S. citizenship, though not representation, upon the residents of Puerto Rico, just in time to make islanders draft eligible during WWI. Again, Puerto Rico had no vote in this matter.
The United States continues to exercise sovereignty over people (now its own citizens) denied
equal membership in the Union. Islanders are subject to federal law, although they elect no voting members of Congress. This status was imposed upon, not chosen by, the 3.8 million residents of Puerto Ruco.
The legal basis for this unequal status rests upon the Insular Cases. These are a series of court decisions between 1901-1922 that gave legal sanction to the colonization of islands taken by the United States at the close of the Spanish-American War. In those cases, the SCOTUS held that these islands were neither “foreign� countries nor “part of the United States.�
These cases invented and developed the idea that these were “unincorporated territories,� belonging to—but not a part of—the USA. This formulation of unincorporated territorial status enabled the United States to acquire and govern its new “possessions� without promising them either statehood or
independence. The doctrine here was separate and unequal.
In the 2022 case, Justice Neil M. Gorsuch said it was time for the court to revisit the Insular Cases that gave the federal government license to rule Puerto Rico and other territories “largely without regard to the Constitution." Gorsuch wrote, "The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law...the 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.�
If and when those precedents are overruled, it will vindicate Justice Harlan, the "great dissenter." He wrote that all territories are part of the nation, and there is no extraconstitutional government power. Colonies conflict with the Declaration, which states that "Governments are instituted among Men, deriving their just powers from theconsent of the governed..."
Harlan wrote, “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. No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution.�
Ironically, Puerto Ricans enjoyed a greater degree of self-govenment in 1898, under Spanish rule, than they have since as a US territory. They could, for example, make commercial trade agreements. They were Spanish citizens equal to those in Spain with the same rights. The Spanish Constitution applied to the island just as it did in Spain. Puerto Rico had obtained a guarantee from Spain that no change would be effected to its autonomy without the island’s prior approval.
After the US took over, most self-government was eliminated for many years. It wasn't until 1948 that Puerto Ricans were allowed to elect their own governor. Though still an unincorporated territory, Puerto Rico was declared a commonwealth by Congress in 1952. The term "commonwealth" is not found in the COTUS; it is a legislative creation. Puerto Rico adopted its own constutution in 1952, however, the Congress vetoed those provisions recognizing social welfare rights.
Many Puerto Ricans favor continued commonwealth status -- if it is "enhanced" with much greater autonomy, legal guarantees, and the power to nullify federal laws.
Commonwealth does not include equal representation at the federal level for U.S. citizens living in Puerto Rico. There seems little prospect that Congress would agree to the sweeping enhancements advocated by the commonwealth party.
The US has been notably slow in ending Puerto Rico's semi-colonial status, much slower than the British and the French in dealing with their former island colonies in the Carribean. Guadeloupe and Martinique, as well as French Guiana, are now part of France on an equal footing with other French citizens. Former British colonies in the region are independent. Puerto Rico lags behind the rest, despite the American claim that democratic self-government is an inalienable right.
There are serious barriers to statehood, language being the main one. Though both Spanish and English are official languages in Puerto Rico, almost all residents speak Spanish. In addition, the island government is conducted in Spanish, and most people do not speak English.
Statehood would change the language status quo if Congress attached a language requirement to Puerto Rican statehood. Congress has imposed English-language requirements on new states four times: Louisiana in 1811, Oklahoma in 1906, and New Mexico and Arizona in 1910. Consequently, any statehood referendum should include the implications for Spanish.
Puerto Ricans almost universally want to preserve their cultural sovereignty, regardless of the exact relationship with the US.
Modern statehooders (advocates of statehood) also insist that language and culture are not negotiable. There would surely be more US opposition if Spanish were to remain the primary language of the 51st state. Opponents of statehood warn that Puerto Rico would inevitably lose its unique culture as a state.
Several referendums have appeared on the ballot over the years, most recently in 2022.
The results have not reflected a strong consensus. What is needed, but has been lacking, is for the Congress to authorize a referendum, spelling out the alternatives, and agreeing to follow the results.
The most likely alternative to statehood is some form of the status quo, i.e. permanent commonwealth status. Only states have a permanent, constitutionally guaranteed status under the federal system, but a commonwealth does not.
Commonwealth status is subject to change by Congress. A perpetual “commonwealth� status perpetuates indefinitely a less than fully self-governing territorial status for a large population of U.S. citizens. Many Puerto Ricans believe that "full empowerment and equal citizenship will not exist in Puerto Rico as long as it is a territorial commonwealth."
Here is a concise summary of the case for equal rights: "Contemporary Puerto Rican citizenship is still a form of second-class citizenship, a status conceived in racism; expressive of the proposition that all men are not created equal; and supportive of a federal government that, in regard to Puerto Rico, does not derive its just powers from the consent of the governed."
Resolving the status of Puerto Rico has the potential to be a bipartisan issue. The 2016 Republican platform explicitly supported statehood for Puerto Rico, as have previous GOP platforms.
Puerto Ricans should be the ones determining the final status of Puerto Rico. The status quo is not acceptable to the large majority, including to those who demand "enhanced" commonwealth status. It is doubtful that Puerto Ricans will opt for separate and unequal. -30-
This book examines the history of Puerto Rico and discusses its prospects for equality. The book
grew out of a conference at Yale Law School marking the centenary of the Spanish-American War.
In 2022, the SCOTUS reaffirmed the second-class status of American citizens living in Puerto Rico. The SCOTUS upheld the right of Congress to exclude residents of the island from the
Supplemental Security Income (SSI) program, which aids low-income elderly, disabled and blind people. The Court ruled in U.S. v. Vaello Madero that the Constitution does not require Congress to extend SSI to residents of Puerto Rico to the same extent as to residents of the States. SSI benefits are available to U.S. citizens living in any of the 50 states, District of Columbia and the Northern Mariana Islands. Excluded from SSI along with Puerto Ricans are those in the U.S. Virgin Islands and Guam.
In other words, even though needy islanders are U.S. citizens, living in American territory, they
are not entitled to the same benefits as those living on the mainland or in the Marianas.
How did Puerto end up in limbo? A quick review of the history is informative.
The island had been a Spanish colony for 400 years before US troops landed in July 1898 during the Spanish-American War.
The Treaty of Paris ending the war states, “The civil rights and political status of the native
inhabitants of the territories hereby ceded to the United States shall be determined by the
DzԲ.�
When Americans debated the status of the former Spanish colonies, the views of the colonial peoples were not considered. The acquistion of territories was influenced by powerful views of racial and cultural superiority and inferiority. Puerto Ricans and Filipinos were deemed unready for full self-government.
The Foraker Act of 1900, which Puerto Ricans had no sayso in crafting, gave Puerto Rico
subordinate status rather than equal status as Americans, and left them unprotected by many
fundamental constitutional guarantees. The island would be governed by the US Congress in
which they have no representation. In 1917, the Jones Act would confer U.S. citizenship, though not representation, upon the residents of Puerto Rico, just in time to make islanders draft eligible during WWI. Again, Puerto Rico had no vote in this matter.
The United States continues to exercise sovereignty over people (now its own citizens) denied
equal membership in the Union. Islanders are subject to federal law, although they elect no voting members of Congress. This status was imposed upon, not chosen by, the 3.8 million residents of Puerto Ruco.
The legal basis for this unequal status rests upon the Insular Cases. These are a series of court decisions between 1901-1922 that gave legal sanction to the colonization of islands taken by the United States at the close of the Spanish-American War. In those cases, the SCOTUS held that these islands were neither “foreign� countries nor “part of the United States.�
These cases invented and developed the idea that these were “unincorporated territories,� belonging to—but not a part of—the USA. This formulation of unincorporated territorial status enabled the United States to acquire and govern its new “possessions� without promising them either statehood or
independence. The doctrine here was separate and unequal.
In the 2022 case, Justice Neil M. Gorsuch said it was time for the court to revisit the Insular Cases that gave the federal government license to rule Puerto Rico and other territories “largely without regard to the Constitution." Gorsuch wrote, "The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law...the 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.�
If and when those precedents are overruled, it will vindicate Justice Harlan, the "great dissenter." He wrote that all territories are part of the nation, and there is no extraconstitutional government power. Colonies conflict with the Declaration, which states that "Governments are instituted among Men, deriving their just powers from theconsent of the governed..."
Harlan wrote, “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. No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution.�
Ironically, Puerto Ricans enjoyed a greater degree of self-govenment in 1898, under Spanish rule, than they have since as a US territory. They could, for example, make commercial trade agreements. They were Spanish citizens equal to those in Spain with the same rights. The Spanish Constitution applied to the island just as it did in Spain. Puerto Rico had obtained a guarantee from Spain that no change would be effected to its autonomy without the island’s prior approval.
After the US took over, most self-government was eliminated for many years. It wasn't until 1948 that Puerto Ricans were allowed to elect their own governor. Though still an unincorporated territory, Puerto Rico was declared a commonwealth by Congress in 1952. The term "commonwealth" is not found in the COTUS; it is a legislative creation. Puerto Rico adopted its own constutution in 1952, however, the Congress vetoed those provisions recognizing social welfare rights.
Many Puerto Ricans favor continued commonwealth status -- if it is "enhanced" with much greater autonomy, legal guarantees, and the power to nullify federal laws.
Commonwealth does not include equal representation at the federal level for U.S. citizens living in Puerto Rico. There seems little prospect that Congress would agree to the sweeping enhancements advocated by the commonwealth party.
The US has been notably slow in ending Puerto Rico's semi-colonial status, much slower than the British and the French in dealing with their former island colonies in the Carribean. Guadeloupe and Martinique, as well as French Guiana, are now part of France on an equal footing with other French citizens. Former British colonies in the region are independent. Puerto Rico lags behind the rest, despite the American claim that democratic self-government is an inalienable right.
There are serious barriers to statehood, language being the main one. Though both Spanish and English are official languages in Puerto Rico, almost all residents speak Spanish. In addition, the island government is conducted in Spanish, and most people do not speak English.
Statehood would change the language status quo if Congress attached a language requirement to Puerto Rican statehood. Congress has imposed English-language requirements on new states four times: Louisiana in 1811, Oklahoma in 1906, and New Mexico and Arizona in 1910. Consequently, any statehood referendum should include the implications for Spanish.
Puerto Ricans almost universally want to preserve their cultural sovereignty, regardless of the exact relationship with the US.
Modern statehooders (advocates of statehood) also insist that language and culture are not negotiable. There would surely be more US opposition if Spanish were to remain the primary language of the 51st state. Opponents of statehood warn that Puerto Rico would inevitably lose its unique culture as a state.
Several referendums have appeared on the ballot over the years, most recently in 2022.
The results have not reflected a strong consensus. What is needed, but has been lacking, is for the Congress to authorize a referendum, spelling out the alternatives, and agreeing to follow the results.
The most likely alternative to statehood is some form of the status quo, i.e. permanent commonwealth status. Only states have a permanent, constitutionally guaranteed status under the federal system, but a commonwealth does not.
Commonwealth status is subject to change by Congress. A perpetual “commonwealth� status perpetuates indefinitely a less than fully self-governing territorial status for a large population of U.S. citizens. Many Puerto Ricans believe that "full empowerment and equal citizenship will not exist in Puerto Rico as long as it is a territorial commonwealth."
Here is a concise summary of the case for equal rights: "Contemporary Puerto Rican citizenship is still a form of second-class citizenship, a status conceived in racism; expressive of the proposition that all men are not created equal; and supportive of a federal government that, in regard to Puerto Rico, does not derive its just powers from the consent of the governed."
Resolving the status of Puerto Rico has the potential to be a bipartisan issue. The 2016 Republican platform explicitly supported statehood for Puerto Rico, as have previous GOP platforms.
Puerto Ricans should be the ones determining the final status of Puerto Rico. The status quo is not acceptable to the large majority, including to those who demand "enhanced" commonwealth status. It is doubtful that Puerto Ricans will opt for separate and unequal. -30-
December 16, 2023
Catholics believe in limbo, which is a temporary destination that is neither heaven nor hell. Puerto Rico has been in a legal limbo for more than a century: it is neither free nor equal, neither completely self-governing nor is it equal to a state. Island residents are citizens, but do not enjoy equal rights with other American citizens. Instead, Puerto Rico has an "intermediate state of ambiguous existence for an indefinite period,� as Justice Fuller wrote in 1901.
This book examines the history of Puerto Rico and discusses its prospects for equality. The book grew out of a conference at Yale Law School marking the centenary of the Spanish-American War.
In 2022, the SCOTUS reaffirmed the second-class status of American citizens living in Puerto Rico. The SCOTUS upheld the right of Congress to exclude residents of the island from the Supplemental Security Income (SSI) program, which aids low-income elderly, disabled and blind people. The Court ruled in U.S. v. Vaello Madero that the Constitution does not require Congress to extend SSI to residents of Puerto Rico to the same extent as to residents of the States. SSI benefits are available to U.S. citizens living in any of the 50 states, District of Columbia and the Northern Mariana Islands. Excluded from SSI along with Puerto Ricans are those in the U.S. Virgin Islands and Guam.
In other words, even though needy islanders are U.S. citizens, living in American territory, they are not entitled to the same benefits as those living on the mainland or in the Marianas. How did Puerto end up in limbo? A quick review of the history is informative.
The island had been a Spanish colony for 400 years before US troops landed in July 1898 during the Spanish-American War.
The Treaty of Paris ending the war states, “The civil rights and political status of the native
inhabitants of the territories hereby ceded to the United States shall be determined by the
DzԲ.�
When Americans debated the status of the former Spanish colonies, the views of the colonial peoples were not considered. The acquistion of territories was influenced by powerful views of racial and cultural superiority and inferiority. Puerto Ricans and Filipinos were deemed unready for full self-government.
The Foraker Act of 1900, which Puerto Ricans had no sayso in crafting, gave Puerto Rico
subordinate status rather than equal status as Americans, and left them unprotected by many
fundamental constitutional guarantees. The island would be governed by the US Congress in
which they have no representation. In 1917, the Jones Act would confer U.S. citizenship, though not representation, upon the residents of Puerto Rico, just in time to make islanders draft eligible during WWI. Again, Puerto Rico had no vote in this matter.
The United States continues to exercise sovereignty over people (now its own citizens) denied
equal membership in the Union. Islanders are subject to federal law, although they elect no voting members of Congress. This status was imposed upon, not chosen by, the 3.8 million residents of Puerto Ruco.
The legal basis for this unequal status rests upon the Insular Cases. These are a series of court decisions between 1901-1922 that gave legal sanction to the colonization of islands taken by the United States at the close of the Spanish-American War. In those cases, the SCOTUS held that these islands were neither “foreign� countries nor “part of the United States.�
These cases invented and developed the idea that these were “unincorporated territories,� belonging to—but not a part of—the USA. This formulation of unincorporated territorial status enabled the United States to acquire and govern its new “possessions� without promising them either statehood or
independence. The doctrine here was separate and unequal.
In the 2022 case, Justice Neil M. Gorsuch said it was time for the court to revisit the Insular Cases that gave the federal government license to rule Puerto Rico and other territories “largely without regard to the Constitution." Gorsuch wrote, "The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law...the 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.�
If and when those precedents are overruled, it will vindicate Justice Harlan, the "great dissenter." He wrote that all territories are part of the nation, and there is no extraconstitutional government power. Colonies conflict with the Declaration, which states that "Governments are instituted among Men, deriving their just powers from theconsent of the governed..."
Harlan wrote, “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. No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution.�
Ironically, Puerto Ricans enjoyed a greater degree of self-govenment in 1898, under Spanish rule, than they have since as a US territory. They could, for example, make commercial trade agreements. They were Spanish citizens equal to those in Spain with the same rights. The Spanish Constitution applied to the island just as it did in Spain. Puerto Rico had obtained a guarantee from Spain that no change would be effected to its autonomy without the island’s prior approval.
After the US took over, most self-government was eliminated for many years. It wasn't until 1948 that Puerto Ricans were allowed to elect their own governor. Though still an unincorporated territory, Puerto Rico was declared a commonwealth by Congress in 1952. The term "commonwealth" is not found in the COTUS; it is a legislative creation. Puerto Rico adopted its own constutution in 1952, however, the Congress vetoed those provisions recognizing social welfare rights.
Many Puerto Ricans favor continued commonwealth status -- if it is "enhanced" with much greater autonomy, legal guarantees, and the power to nullify federal laws.
Commonwealth does not include equal representation at the federal level for U.S. citizens living in Puerto Rico. There seems little prospect that Congress would agree to the sweeping enhancements advocated by the commonwealth party.
The US has been notably slow in ending Puerto Rico's semi-colonial status, much slower than the British and the French in dealing with their former island colonies in the Carribean. Guadeloupe and Martinique, as well as French Guiana, are now part of France on an equal footing with other French citizens. Former British colonies in the region are independent. Puerto Rico lags behind the rest, despite the American claim that democratic self-government is an inalienable right.
There are serious barriers to statehood, language being the main one. Though both Spanish and English are official languages in Puerto Rico, almost all residents speak Spanish. In addition, the island government is conducted in Spanish, and most people do not speak English.
Statehood would change the language status quo if Congress attached a language requirement to Puerto Rican statehood. Congress has imposed English-language requirements on new states four times: Louisiana in 1811, Oklahoma in 1906, and New Mexico and Arizona in 1910. Consequently, any statehood referendum should include the implications for Spanish.
Puerto Ricans almost universally want to preserve their cultural sovereignty, regardless of the exact relationship with the US.
Modern statehooders (advocates of statehood) also insist that language and culture are not negotiable. There would surely be more US opposition if Spanish were to remain the primary language of the 51st state. Opponents of statehood warn that Puerto Rico would inevitably lose its unique culture as a state.
Several referendums have appeared on the ballot over the years, most recently in 2022.
The results have not reflected a strong consensus. What is needed, but has been lacking, is for the Congress to authorize a referendum, spelling out the alternatives, and agreeing to follow the results.
The most likely alternative to statehood is some form of the status quo, i.e. permanent commonwealth status. Only states have a permanent, constitutionally guaranteed status under the federal system, but a commonwealth does not.
Commonwealth status is subject to change by Congress. A perpetual “commonwealth� status perpetuates indefinitely a less than fully self-governing territorial status for a large population of U.S. citizens. Many Puerto Ricans believe that "full empowerment and equal citizenship will not exist in Puerto Rico as long as it is a territorial commonwealth."
Here is a concise summary of the case for equal rights: "Contemporary Puerto Rican citizenship is still a form of second-class citizenship, a status conceived in racism; expressive of the proposition that all men are not created equal; and supportive of a federal government that, in regard to Puerto Rico, does not derive its just powers from the consent of the governed."
Resolving the status of Puerto Rico has the potential to be a bipartisan issue. The 2016 Republican platform explicitly supported statehood for Puerto Rico, as have previous GOP platforms.
Puerto Ricans should be the ones determining the final status of Puerto Rico. The status quo is not acceptable to the large majority, including to those who demand "enhanced" commonwealth status. It is doubtful that Puerto Ricans will opt for separate and unequal. -30-
This book examines the history of Puerto Rico and discusses its prospects for equality. The book grew out of a conference at Yale Law School marking the centenary of the Spanish-American War.
In 2022, the SCOTUS reaffirmed the second-class status of American citizens living in Puerto Rico. The SCOTUS upheld the right of Congress to exclude residents of the island from the Supplemental Security Income (SSI) program, which aids low-income elderly, disabled and blind people. The Court ruled in U.S. v. Vaello Madero that the Constitution does not require Congress to extend SSI to residents of Puerto Rico to the same extent as to residents of the States. SSI benefits are available to U.S. citizens living in any of the 50 states, District of Columbia and the Northern Mariana Islands. Excluded from SSI along with Puerto Ricans are those in the U.S. Virgin Islands and Guam.
In other words, even though needy islanders are U.S. citizens, living in American territory, they are not entitled to the same benefits as those living on the mainland or in the Marianas. How did Puerto end up in limbo? A quick review of the history is informative.
The island had been a Spanish colony for 400 years before US troops landed in July 1898 during the Spanish-American War.
The Treaty of Paris ending the war states, “The civil rights and political status of the native
inhabitants of the territories hereby ceded to the United States shall be determined by the
DzԲ.�
When Americans debated the status of the former Spanish colonies, the views of the colonial peoples were not considered. The acquistion of territories was influenced by powerful views of racial and cultural superiority and inferiority. Puerto Ricans and Filipinos were deemed unready for full self-government.
The Foraker Act of 1900, which Puerto Ricans had no sayso in crafting, gave Puerto Rico
subordinate status rather than equal status as Americans, and left them unprotected by many
fundamental constitutional guarantees. The island would be governed by the US Congress in
which they have no representation. In 1917, the Jones Act would confer U.S. citizenship, though not representation, upon the residents of Puerto Rico, just in time to make islanders draft eligible during WWI. Again, Puerto Rico had no vote in this matter.
The United States continues to exercise sovereignty over people (now its own citizens) denied
equal membership in the Union. Islanders are subject to federal law, although they elect no voting members of Congress. This status was imposed upon, not chosen by, the 3.8 million residents of Puerto Ruco.
The legal basis for this unequal status rests upon the Insular Cases. These are a series of court decisions between 1901-1922 that gave legal sanction to the colonization of islands taken by the United States at the close of the Spanish-American War. In those cases, the SCOTUS held that these islands were neither “foreign� countries nor “part of the United States.�
These cases invented and developed the idea that these were “unincorporated territories,� belonging to—but not a part of—the USA. This formulation of unincorporated territorial status enabled the United States to acquire and govern its new “possessions� without promising them either statehood or
independence. The doctrine here was separate and unequal.
In the 2022 case, Justice Neil M. Gorsuch said it was time for the court to revisit the Insular Cases that gave the federal government license to rule Puerto Rico and other territories “largely without regard to the Constitution." Gorsuch wrote, "The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law...the 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.�
If and when those precedents are overruled, it will vindicate Justice Harlan, the "great dissenter." He wrote that all territories are part of the nation, and there is no extraconstitutional government power. Colonies conflict with the Declaration, which states that "Governments are instituted among Men, deriving their just powers from theconsent of the governed..."
Harlan wrote, “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. No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution.�
Ironically, Puerto Ricans enjoyed a greater degree of self-govenment in 1898, under Spanish rule, than they have since as a US territory. They could, for example, make commercial trade agreements. They were Spanish citizens equal to those in Spain with the same rights. The Spanish Constitution applied to the island just as it did in Spain. Puerto Rico had obtained a guarantee from Spain that no change would be effected to its autonomy without the island’s prior approval.
After the US took over, most self-government was eliminated for many years. It wasn't until 1948 that Puerto Ricans were allowed to elect their own governor. Though still an unincorporated territory, Puerto Rico was declared a commonwealth by Congress in 1952. The term "commonwealth" is not found in the COTUS; it is a legislative creation. Puerto Rico adopted its own constutution in 1952, however, the Congress vetoed those provisions recognizing social welfare rights.
Many Puerto Ricans favor continued commonwealth status -- if it is "enhanced" with much greater autonomy, legal guarantees, and the power to nullify federal laws.
Commonwealth does not include equal representation at the federal level for U.S. citizens living in Puerto Rico. There seems little prospect that Congress would agree to the sweeping enhancements advocated by the commonwealth party.
The US has been notably slow in ending Puerto Rico's semi-colonial status, much slower than the British and the French in dealing with their former island colonies in the Carribean. Guadeloupe and Martinique, as well as French Guiana, are now part of France on an equal footing with other French citizens. Former British colonies in the region are independent. Puerto Rico lags behind the rest, despite the American claim that democratic self-government is an inalienable right.
There are serious barriers to statehood, language being the main one. Though both Spanish and English are official languages in Puerto Rico, almost all residents speak Spanish. In addition, the island government is conducted in Spanish, and most people do not speak English.
Statehood would change the language status quo if Congress attached a language requirement to Puerto Rican statehood. Congress has imposed English-language requirements on new states four times: Louisiana in 1811, Oklahoma in 1906, and New Mexico and Arizona in 1910. Consequently, any statehood referendum should include the implications for Spanish.
Puerto Ricans almost universally want to preserve their cultural sovereignty, regardless of the exact relationship with the US.
Modern statehooders (advocates of statehood) also insist that language and culture are not negotiable. There would surely be more US opposition if Spanish were to remain the primary language of the 51st state. Opponents of statehood warn that Puerto Rico would inevitably lose its unique culture as a state.
Several referendums have appeared on the ballot over the years, most recently in 2022.
The results have not reflected a strong consensus. What is needed, but has been lacking, is for the Congress to authorize a referendum, spelling out the alternatives, and agreeing to follow the results.
The most likely alternative to statehood is some form of the status quo, i.e. permanent commonwealth status. Only states have a permanent, constitutionally guaranteed status under the federal system, but a commonwealth does not.
Commonwealth status is subject to change by Congress. A perpetual “commonwealth� status perpetuates indefinitely a less than fully self-governing territorial status for a large population of U.S. citizens. Many Puerto Ricans believe that "full empowerment and equal citizenship will not exist in Puerto Rico as long as it is a territorial commonwealth."
Here is a concise summary of the case for equal rights: "Contemporary Puerto Rican citizenship is still a form of second-class citizenship, a status conceived in racism; expressive of the proposition that all men are not created equal; and supportive of a federal government that, in regard to Puerto Rico, does not derive its just powers from the consent of the governed."
Resolving the status of Puerto Rico has the potential to be a bipartisan issue. The 2016 Republican platform explicitly supported statehood for Puerto Rico, as have previous GOP platforms.
Puerto Ricans should be the ones determining the final status of Puerto Rico. The status quo is not acceptable to the large majority, including to those who demand "enhanced" commonwealth status. It is doubtful that Puerto Ricans will opt for separate and unequal. -30-
July 5, 2018
A little too legalese at times, but overall interesting.
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May 31, 2008becca
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