Islands of Civic Exclusion: Puerto Rico, U.S. Global ... of Civic Exclusion: Puerto Rico, ... during the early twentieth century continue to ... thousands of Puerto Ricans and millions

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Islands of Civic Exclusion:

Puerto Rico, U.S. Global Imperialism, and the Insular Cases

Elspeth M. Wilson

Introduction

After over one hundred years as a territory of the United States, Puerto Rico remains neither a

state nor an independent nation. The millions of residents of island still cannot vote for national

representation in presidential and congressional elections, and they continue to experience de

facto second-class citizenship under the law. What factors account for the ongoing

marginalization of Puerto Rico? This paper seeks to answer a vital part of this question by

highlighting the ways in which the Supreme Court’s rulings in the Insular Cases delayed both

U.S. citizenship and statehood in Puerto Rico. Importantly, the Court’s decisions in these cases

during the early twentieth century continue to structure the legal and political status of Puerto

Rico in relation to the United States today.

The Insular Cases are series of Supreme Court cases involving disputes over taxation on

imports and exports between mainland America and recently acquired territories from the

Spanish-American War. They are traditionally framed as cases about trade, but I argue in this

paper that these cases dealt even more significantly with questions concerning the future scope of

U.S. citizenship. In the Insular Cases, the Court assigned the new label of “unincorporated”

territory to Puerto Rico, ruling that it was constitutional for Congress to control Puerto Rico

indefinitely while simultaneously excluding it from a path towards statehood and its residents

from U.S. citizenship. To justify the creation of this innovative (and indeterminate) territorial

category, the majority of the justices argued that the national government had a legitimate

strategic interest in keeping the island under its rule, in the name of fostering global empire, but

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that the inclusion of Puerto Ricans as citizens might “degrade” the American polity from a

cultural, ethnic, and racial standpoint. As I shall argue, this line of reasoning borrowed heavily

from previous judicial doctrine classifying Native Americans as members of “semi-sovereign”

tribal nations, which served to exclude indigenous peoples from U.S. citizenship while leaving

them vulnerable to numerous forms of coercion associated with government policies promoting

westward expansion. After tracing how the Insular Cases defined the status of Puerto Rico in

relation to the United States during the early twentieth century, I conclude by documenting some

of the ways in which the judicial doctrine of “territorial incorporation” continues to adversely

shape the civic status and political identities of a sizable population of Puerto Ricans in

contemporary America.

1. Background:

In response to the U.S. acquisition of a global empire following victory in the Spanish-American

war, the Insular Cases are generally known as the Supreme Court’s attempt to answer the

question: “Does the Constitution follow the flag?”1 During the Spanish-American War of 1898,

the United States seized control of Cuba and Puerto Rico. After the War ended, it also acquired

the Philippines and Guam from Spain in the Treaty of Paris, which established the terms of peace

between the two nations. The treaty stipulated that Cuba would achieve Independence after a

short transitional period to self-government, but the territories of Puerto Rico, Guam, and the

Philippines were now under the control of U.S. Congress. Furthermore, only three days after the

war ended, a joint congressional resolution also approved the final annexation of Hawaii (in The

Newlands Resolution).2 The acquisition of these territories raised important questions about

1 See e.g. Kai Raustiala, Does the Constitution follow the Flag? The Evolution of Territoriality in American Law (Oxford Univ. Press, 2009). 2 Resolution No. 55, known as the "Newlands Resolution," 2nd Session, 55th Congress, July 7, 1898; 30 Sta. at L. 750; 2 Supp. R. S. 895.

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whether or not the U.S. Constitution could accommodate the growth of a global American

empire.

Alfred T. Mahan, the principle architect of America’s navel doctrine at the time,

described the task confronting Congress as nothing less than “the extension of national authority

over alien communities.”3 Mahan’s statement illustrates the political tension surrounding the

new territories. On the one hand, the Islands were of great strategic value for the United States

as an emerging global power: Military bases in the Pacific would allow the Navy to protect

American trade interests in the Far East, and a stronger presence in the Caribbean would place

navel ships in proximity of the entrance to the planned construction of the Panama Canal,

connecting the Atlantic and the Pacific. On the other hand, even the most outspoken proponents

of keeping the territories under American rule could not ignore the reality that the Islands were

populated by vast numbers of native inhabitants, and “few [Americans] wanted hundreds of

thousands of Puerto Ricans and millions of Filipinos to become fellow citizens, equals in the

American polity.”4

Motivated by these concerns, just eight days after signing the Treaty of Paris, the Senate

passed a resolution not to grant U.S. citizenship to Filipinos, who were widely derided by

Congress as the most racially inferior and culturally backwards native groups in the newly

occupied territories.5 And after a much longer debate over how to classify Puerto Rico,

Congress passed the Foraker Act, stipulating that all individuals residing in Puerto Rico would

be “deemed citizens of Puerto Rico, and as such entitled to the protection of the United States,”

3 Warren Zimmermann, First Great Triumph: How Five Americans Made their Country a World Power (Farrar, Strauss & Giroux 2002), 13. 4 Paul Finkelman, with Bruce A. Lesh (eds), “The Insular Cases: Downs v. Bidwell,” in Milestone Documents in American History: Exploring the Primary Sources the Shaped America. (Schlager Group Inc, 2008), p. 1130. 5 Ibid, 1130.

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but Congress opted not to grant them U.S. citizenship.6 The final bill also included an

amendment that stipulated that the civil government of Puerto Rico would be funded by a tariff

imposed on its exports to mainland America. This tariff was a controversial response to

lobbying from domestic tobacco and sugar producers seeking to weaken competition from Puerto

Rican imports. The Foraker Bill passed the Senate by a mere 9 votes.7 The final Foraker Act

was the product of a heated and prolonged debate between the “imperialists” and “anti-

imperialists” over whether or not it was acceptable to keep territories under American rule, yet

treat them differently from traditional states and annexed territories under the U.S. Constitution.

After the “imperialists” triumphed in Congress, the question would reach the Supreme Court in

the form of a series of cases known as the Insular Cases.

The term ‘insular’ is an adjective that means of, or relating to, an ‘island.’ Hence, the

phrase, “Insular Cases,” was adopted by the press to refer to the nine cases addressing the status

of the island territories, which were decided by the Court in 1901. In this paper, I classify the

Insular Cases as birthright citizenship decisions under the Constitution, which is admittedly an

unorthodox approach to the traditional legal canon on “birthright citizenship.” At first glance,

these cases raised questions concerning the constitutionality of tariffs and duties applied by

Congress to commercial trade between the Islands and mainland America, so they were not

explicitly framed around the issue of citizenship. Yet, to answer the specific disputes about

commerce that came before the Court, the Justices needed to take up the logically prior question

of whether or not the Constitution actually applied to the territories under the control of

Congress. This had important implications regarding the citizenship status of the natives.

Specifically, the Court would be required to address the jurisdictional status of the territories in

6 S 56th Cong., 1st Session, 3037. For a more detailed account of this debate in Congress, see e.g. Juan Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal (Univ. de Puerto Rico, 1988), 32-29 7 Jaun Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal (Univ. de Puerto Rico, 1988), p. 39

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light of the recent precedent it set in Wong Kim Ark (1898), in which it upheld a broad

conception of birthright citizenship under the Citizenship Clause of the Fourteenth Amendment

for those born “under the jurisdiction” of the United States. (The Ark case is often credited with

granting the American-born children of undocumented immigrants citizenship today, who are

disproportionately Latino, but at the time of this ruling the Court argued that the decision would

largely apply to children born to immigrants from Europe and help streamline their path towards

citizenship.) The Ark Court did not anticipate the potential “problems” its precedent would spark

just two years later following the sudden acquisition of these former Spanish colonies and the

growing popularity of an imperialist political agenda promoting U.S. global power.

Given that the United States was suddenly presiding over millions of new subjects,

widely cast by politicians and the press as racially and culturally inferior, and hence not fit for

American citizenship, a central background question in the Insular Cases was nothing less than

whether or not the national government could control territories without including their

inhabitants in the American polity. For this reason, it is not surprising that the Supreme Court

spoke explicitly about issues of birthright citizenship in the Insular Cases. The dual desire to

both keep the territories under American control and exclude their people from full political

membership presented a potential conflict regarding the territorial reach and scope of the

Constitution and the broader American commitment to republican citizenship. In the Insular

Cases, the Court’s efforts to resolve this dilemma would culminate in the creation of a new

judicial doctrine of territorial “incorporation,” championed by Justice White to accommodate

what amounts to colonialism under the Constitution. This doctrine remains valid law today.

2. The Insular Cases: The Court Wrestles with Global Imperialism The Court heard a number of “Insular Cases”—also referred to in the press as the “Porto Rican

Cases”—during the same docket in 1900, and all were set to be announced simultaneously on

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May 27, 1901, but Downes v. Bidwell (1901) was by far the most significant and will be the

focus of my analysis below.8 The Downes case involved a challenge to the export tax on oranges

from Puerto Rico to New York. This case forced the Court to directly address whether Congress

could use the authority of the Foraker Act to impose special taxes on trade with Puerto Rico

without violating the uniformity clause of the Constitution, which stipulates that, “all Duties,

Imposts, and Excises shall be uniform throughout the United States.” As a procedural matter, the

Court could not settle questions about trade without first addressing the constitutional status of

the territories: Did they count as domestic or international? If the Court ruled that Puerto Rico

was domestic in a classical sense, then three conclusions would follow: a) Puerto Rico would be

considered a U.S. territory on a path towards equal statehood in the future, b) those born on its

soil would be presumed constitutional birthright citizens of the United States, and c) foreign

taxes could not apply to exports from the island to other parts of country. However, if the Court

ruled that Puerto Rico was foreign, then these tariffs on overseas exports were constitutional, but

it remained unclear whether the U.S. Constitution permitted Congress to rule over a foreign

territory by treating it like a colonial possession. So, what would the Court conclude?

The decisions in the Insular Cases reveal a deeply divided Court, with the vast majority

of the cases (8 out of 9) decided by fragile one-vote margins. The Court struggled to find

common ground in Downes, and ended up splintering into so many different camps that several

newspapers initially reported the wrong conclusion.9 Chief Justice Fuller assigned Justice

Brown to deliver the lead opinion for the Court upholding the Foraker Act, but no other justice

accepted Brown’s reasoning. Justice White wrote an important concurring opinion, joined by

8 See e.g. Sparrow, 140 “The Insular Cases—or as they were also called, the ‘Puerto Rican çases’—mattered so much precisely because they were about much more than just the Foraker Act…” Downes v. Bidwell, 182 U.S. 243 9 See e.g. Sparrow, The Insular Cases, 2006, p. 99. Sparrow writes that the newspapers “were running contradictory headlines,” and Senator Foraker “remarked the next day” after the Court announced its first set of decisions that, “[t]here seems to be some confusion in the newspaper reports of the decisions rendered by the Supreme Court in the insular cases.”

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Shiras and McKenna. In a concise concurring opinion, Justice Gray also reached the same result.

In the end, a bare majority of five justices upheld the Foraker Act against the challenge that it

was unconstitutional, but did so by forming a loosely-knit plurality. Conversely, Chief Justice

Fuller authored a dissenting opinion joined by more justices than any one of the separate

opinions forming the “majority” (for a total of four dissenters), including Brewer, Peckham, and

Harlan. Harlan also offered his own secondary dissent. Ultimately, in the words of

Bartholomew Sparrow, “The ruling on Downes v. Bidwell, with its three different majority

opinions and its two dissenting opinions, was the longest and most complex of the Insular

Cases.”10

3. Birthright Citizenship in Downes v. Bidwell

What caused the Court to fracture so severely in Downes? Broadly, the Supreme Court split over

three competing theories pertaining to whether the Constitution applied to the territories. Let us

examine each of these positions in turn, beginning with their primary legal arguments about the

validity of the Foraker Act and the status of Puerto Rico as either “foreign” or “domestic” under

the Constitution. Then, I will turn to the striking fact that all of the nine justices expressed

shared anxieties about the consequences of imperialism for the future racial demographic

composition of “Anglo Saxon” America. As we shall see, the Supreme Court did not shy away

from expressing highly racialized concerns about citizenship and statehood in the territories.

3.1 Justice Brown’s lead opinion in Downes:

In his opinion “for the Court,” but in which no other justice joined, Justice Brown adopted the

classic imperialist position.11 He is the only justice on the Court to side completely with the

10Sparrow, The Insular Cases, 2006, p. 87 11 Downes v. Bidwell, 182 U.S. 244, at 244

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argument made by the U.S. Government.12 Brown’s position is known as the “extension

doctrine,” because he did not believe that the Constitution applied to any of the territories

controlled by the United States without the expressed extension of the Constitution by Congress.

Abandoning any semblance of strict constructionism in his interpretation of the Constitution,

Brown concluded that the answer to this question was not to be found in the Constitution itself,

but rather “in the nature of the government created by that instrument, in the opinion of its

contemporaries, in the practical construction put upon it by Congress and in the decisions of this

court.”13 Justice Brown’s main conclusion was that the Uniformity Clause of the Constitution

did not apply to Puerto Rico because the island was merely “a territory appurtenant and

belonging to the United States, but not a part of the United States within the revenue clauses of

the Constitution.”14 In the absence of Congress’s explicit extension of the Constitution, Brown

did not believe it applied to Puerto Rico or any other territory.

Best known for his lead opinion upholding black racial segregation in Plessy v. Ferguson

(1896), Justice Brown drafted the lead opinions for the Court in all but two of the Insular Cases

decided in May and December 1901.15 In his Downes opinion, Brown expressed deep racial and

cultural anxieties about the scope of birthright citizenship and the future of the American polity.

In fact, these concerns provide much of the force behind his extra-constitutional argument in

favor of advancing the “American empire.” Brown could not find any room for “middle

ground.” If the Constitution applied to the territories, he concluded that it would open up a

floodgate of new American citizens not qualified for the duties or the rights of “Anglo-Saxon”

governance. The territorial residents would subsequently become “citizens of the United States,

12 Arguing for the War Department’s Division of Insular Affairs, Solicitor General John Richards and U.S. Attorney General John Griggs asserted that Puerto Ricans should be subject to the absolute sovereignty of the U.S. government. 13 Downes v. Bidwell, 182 U.S. 244, at 249 14 Ibid. at 287 15 Plessy v. Ferguson (1896)

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their children thereafter born, whether savages or civilized, are such, and entitled to all the rights,

privileges, and immunities of citizens.”16 Given this parade of horrors, Brown concluded “it is

doubtful if Congress would ever assent to the annexation of territory upon the condition that its

inhabitants, however foreign they may be to our habits, traditions, and modes of life, shall

become at once citizens of the United States.”17 In fact, he maintained that it would be “fatal” to

the American empire to annex foreign lands with “alien races, differing from us in religion,

customs, laws, methods of taxation and modes of thought” and then grant their residents the full

“blessings of a free government under the Constitution.”18 Brown explicitly framed his

imperialist conclusion in Downes as motivated out of the fear that (after Ark) all children born to

the residents of American territories might become citizens of the United States, “whether savage

or civilized,” unless Congress could exclude the islands populated with “alien races” from

equality under the Constitution. In a case about taxation, his primary concern appears to be

about what consequence the Court’s decision would have on the racial face of American

citizenship.

3.2 Justice White’s Incorporation Doctrine:

The significance of Downes rests in Justice White’s concurring opinion, in which he first

advanced his “incorporation” doctrine for dealing with the status of the territories. While Justice

Brown rejected the idea that the Constitution could extend to any of the territories, White sought

to stake out a less extreme position. He argued that territories could fall into two categories,

those that were fully “incorporated” under the Constitution, and those subject to limited

provisions of the Constitution as “unincorporated” territories. The question was not whether the

Constitution applied to Puerto Rico (“for that is self-evident”), but rather whether the provision

16 Downes v. Bidwell, 182 U.S. 244, italics added 17 Ibid. Italics added 18 Ibid. 244

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Congress relied on for legislation was operative in a given context.19 For domestic matters, the

“United States” therefore included both the states and incorporated territories, and Congress

could assert plenary control over the unincorporated territories under the territorial clause of the

Constitution. As White put it,

The result…is that whilst in an international sense Porto Rico was not a foreign country, since it was subject to the sovereignty of and was owned by the United States, it was foreign to the United States in a domestic sense, because the island has not been incorporated into the United States, but was merely appurtenant thereto as a possession.20

Justice White emphasized that the United States had access to the same power to annex and

govern territories as any other world-nation, irrespective of its constitutional emphasis on

republican citizenship and representation. The United States also had wide freedom in how it

designed its treaties. The text of the treaty and subsequent actions by Congress could reveal

“conditions favorable to incorporation,” or it might reveal no intention to incorporate the

territory. Unless a treaty used the precise term “incorporation” or Congress granted the residents

U.S. citizenship, then the Court ought to assume the territory was not incorporated. Congress

possessed the power to incorporate the territory at a later date, but it had not done so in Puerto

Rico as indicated by the exclusion of its residents from U.S. citizenship in the Foraker Act. In

the words of Bartholomew Sparrow, “For White, the United States had now joined the family of

great national powers, and it needed the governmental authority to act its part.”21

Justice White expressed deep anxieties about the ability of the United States to annex

new territory while retaining its national power “to protect the birthright of its citizens.”22 His

point was that the ability to acquire territories by treaty and conquest is so “essential to national

existence” and sovereignty, that national power cannot logically be limited under the

19 Downes v. Bidwell, 182 U.S. 244, at 282 20 Ibid. at 341-2 21 Sparrow, The Insular Cases, 2006, p. 93 22 Downes v. Bidwell, 182 U.S. 244 (1901), at 336

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Constitution to prevent the acquisition of new territories. The United States would be essentially

“helpless in the family of nations,” if it “[did] not possess that authority which has at all times

been treated as an incident of the right to acquire” without having to sacrifice the integrity of its

own polity by being compelled to admit “alien people” as equal citizens.23 Making regular

references to the tension between the nation’s desire to project its power globally and the idea

that many races are “utterly unfit for American citizenship,” Justice White argued that, “the

people of the United States” must be guarded from “the evil of immediate incorporation.”24

Illustrating his argument with a hypothetical example, he writes,

Take a case of discovery. Citizens of the United States discover an unknown island, peopled with an uncivilized race yet right in soil, and valuable to the United States for commercial and strategic reasons. Clearly, by the law of nations, the right to strategy such acquisition and thus to acquire the territory would pertain to the government of the United States…Can it be denied that such right could not be practically exercised if the result would be to endow the inhabitants with citizenship of the United States and to subject them not only to local but also to an equal proportion of national taxes, even although the consequence would be to entail ruin on the discovery of the territory and to inflict grave detriment on the United States to arise both from the dislocation of its fiscal system and the immediate bestowal of citizenship on those utterly unfit to receive it?25

Despite granting Congress the prerogative to exclude entire populations of people from

citizenship while governing their homeland, Justice White nonetheless argued that, the power to

possess a territory in this manner does not add up to a license to tyranny. There were “inherent,

although unexpressed, principles which are the basis of all free government” and which Congress

could not violate: “there are certain principles of natural justice inherent in the Anglo-Saxon

character, which need no expression in constitutions or statutes to give them effect or to secure

dependencies against legislations manifestly hostile to their real interests.”26 Placing faith in the

superiority of Anglo-Saxon morality and sense of justice, White spoke of natural rights that were

23 Downes, 324 24 Downes, at 306-13 25 Downes, at 306 Italics mine 26 Ibid at 280

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not wholly “unprotected by the provisions of our Constitution,” which Congress would

presumably respect in its governance of the residence of unincorporated territories.

3.3 The Anti-imperialist Dissents of Fuller and Harlan:

Chief Justice Fuller issued the main dissenting opinion in Downes. Arguing that the Constitution

applied to both the states and the territories, Fuller quoted Chief Justice Marshall in

Loughborough v. Blake (1820) that the United States “is the name given to our great republic,

which is composed of the States and the territories.”27 Bluntly accusing White of making up the

doctrine of “incorporation,” rather than sticking to strict interpretation, Fuller stated: “Great

stress is thrown upon the word “incorporation” as if possessed of some occult meaning, but I

take it that the [Foraker Act] made Porto Rico…an organized territory of the United States.”28

In the words of Fuller, this type of unrestricted power on the part of Congress was

explicitly unconstitutional and violated the most basic values of American democracy:

The contention seems to be that, if an organized and settled province of another sovereignty is acquired by the United States, Congress has the power to keep it, like a disembodied shade, in an intermediate state of ambiguous existence for an indefinite period; and, more than that, that after it has been called from limbo, commerce with it is absolutely subject to the will of Congress, irrespective of the constitutional provisions…That theory assumed that the Constitution created a government empowered to acquire countries throughout the world, to be governed by different rules than those obtaining in the original states and territories, and substitutes for the present system of republican government a system of domination over distant provinces in the exercise of unrestrained power.29

Fuller dismissed any claims that a treaty could expand the powers of Congress under the

Constitution, because the U.S. Constitution does not change over time except through the official

amendment process. Rather, it stands as “a law for rulers and people equally in times of war and

peace, and covers with the shield of its protection all classes of men, at all times and under all 27 Downes, at 353 28 Downes, Fuller dissent 29 Ibid, Italics mine

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circumstances.” This was a trenchant denunciation of imperialism, and it attracted four out of

the five members of the Court.

Justice Harlan also wrote a (secondary) dissent. Aiming an arrow directly at the majority,

he reminded his colleagues that the ultimate law of the nation was the U.S. Constitution—not

congressional legislation, political convenience, hunger for power, or global ambitions. As the

representative body in a constitutional democracy, Congress cannot deal with new territories by

mimicking other nations at the expense of the higher law of the land. The United States, Harlan

argued, was comprised of the People (explicitly stated in the preamble of the Constitution as:

“We the People”), rather than the states and other territories. Like Fuller, Harlan maintained that

the Constitution applied to new territories ex proprio vigore (by its own force) upon the moment

of acquisition, and “To say otherwise is to concede that Congress may, by action taken outside

the Constitution engraft upon our republican institutions a colonial system such as exists under

monarchical governments.”30 According to Harlan, the Constitution was incompatible with

imperialism: “The idea that this country may acquire territories anywhere on earth, by conquest

or treaty, and hold them as mere colonies or provinces,—people inhabiting them to enjoy only

such rights as Congress chooses to accord them—is wholly inconsistent with the spirit and

genius as well as the words of the Constitution.”31

At first glance, it might seem reasonable to assume that the dissenters would support a

more egalitarian notion of citizenship than those in the majority. But despite the trenchant anti-

imperialist statements by the dissenters, it is important to note that neither Justices Fuller nor

Harlan were motivated by racial egalitarianism in Downes. Chief Justice Fuller avoided

supporting civic equality for Puerto Ricans, by stating that the Constitution may not have granted

30 Downes at 380 31 Downes, Harlan dissent at 384

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“the subjects of the former sovereign…the full status of citizens.”32 He reminded his colleagues

that citizenship wasn’t the issue before the Court. Likewise, Harlan expressed serious

reservations about granting civic equality to the residents of the territories, but emphasized that

this was precisely why global imperialism was a bad idea. Congress needed to consider these

concerns prior to annexing the territory. As Harlan puts it,

Whether a particular race will or will not assimilate with our people, and whether they can or cannot with safety to our institutions be brought within the operation of the Constitution, is a matter to be thought of when it is proposed to acquire their territory by treaty. A mistake in the acquisition of territory, although such acquisition seemed at the time to be necessary, cannot be made the ground for violating the Constitution or refusing to give full effect to its provisions.33

Consider the limitations of the Constitution before you act, warned Harlan, or you might be stuck

with alien races and foreigners, who won’t assimilate into American society. In his capacity as a

Justice on the Supreme Court, Harlan firmly believed in the sanctity of the Constitution as the

highest law of the nation, unifying and protecting the American People. But despite his famous

dissent against racial segregation in Plessy, Harlan was not egalitarian on matters of race.34

Harlan’s concerns about the importance of racial and cultural assimilation drove him in Ark to

argue that Chinese Americans could not assimilate into American society and, therefore, should

not be entitled to birthright citizenship.35 Although Harlan was extremely concerned about

preserving the racial vigor of the nation’s polity, in Downes he was unwilling to compromise

America’s most fundamental constitutional principles for the crude (politically expedient) drive

towards imperialism. 32 Downes, Fuller dissent at 369 33 Downes, Italics added 34 Although he opposed the Thirteenth Amendment, which abolished slavery, Harlan understood the Fourteenth Amendment to mean that, “all citizens are equal before the law.” In Plessy, Harlan’s primary concern with segregation was not the goal of achieving genuine racial parity, rather he argued that the drafters of the Fourteenth Amendment intended to grant African Americans mere basic equality under the law as U.S. citizens. In Ark, by contrast, the Fourteenth Amendment did not directly address the citizenship status of the children of Chinese immigrants. Harlan was consistent regarding his belief that civic membership precedes legal equality, and once citizenship was extended to a group, then the basic constitutional rights of U.S. citizenship must follow. Tinsley E. Yarbrough, Judicial Enigma: The First Justice Harlan. (Oxford Univ. Press, 1995), pp. 138-162. 35 Gabriel J. Chin, “The Plessy Myth: Justice Harlan and the Chinese Cases.” 82 Iowa L. Rev. 151 (1996)

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In sum, Justices Fuller and Harlan did not celebrate the idea the natives of the territories

might become citizens under the Constitution. Rather, the normative thrust of their dissents was

that the United States should stay true to its national values of liberty and avoid becoming a

global empire in the first place.

3.4 Main Point of Judicial Agreement in Downes: The United States should “protect the birthright of its citizens”

Although the early Insular Cases focused predominately on issues of tariffs and duties on Puerto

Rican agricultural goods imported to mainland America (such as oranges and sugar), these cases

necessarily addressed questions about how citizenship would be applied to the territories. And

despite their differences over whether or not the Constitution could accommodate imperialism,

the three main positions adopted by the Downes Court expressed similar concerns about

protecting the racial and cultural integrity of the American polity. In a case known for a lack of

consensus, the one issue all members of the Court appear to agree upon in Downes is that the

new territories posed a crisis regarding birthright citizenship. As I have argued, the reason for

this rests in the implications of the previous Ark ruling. What the Ark majority portrayed as a

minor concession in support of granting the children of desirable immigrants easy access to

birthright citizenship under the Fourteenth Amendment, now threatened to radically alter the face

of the American polity. Hence, the justices took pains to retreat from the implications of Ark

when faced with territories populated with millions of natives belonging to “alien races.” 36

4. Is Citizenship the Magic Word for Incorporation?

Despite their common concerns about birthright citizenship, the various legal strategies the

justices proposed for achieving these ends had different implications for citizenship policy in the

future. With almost every Insular Case decided on a single vote margin, the ruling in Downes

36 Downes, 324

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depended upon a delicate balance on the Court. This made it unclear which of the three proposed

doctrines would prevail over time (i.e. extension, incorporation, or acquisition). In the wake of

this divided plurality, Justice White’s account of “territorial incorporation” gradually became the

dominant doctrine on the Court. But in his early iterations of this approach in the first set of

Insular Cases, White was vague about what it took for a territory to qualify as “incorporated.”

As Justice White sought to clarify what it took for a territory to qualify as “incorporated” in later

Insular Cases, such as Mankichi and Rassmussen involving the status of the territories of Hawaii

and Alaska respectively (examined below), he increasingly suggested that the magic term was

“U.S. citizenship.”37 In this regard, Puerto Rico remained in an odd state of unincorporated

limbo, with its residents being neither citizens nor aliens in the United States.

This limbo is illustrated by the case of González v. Williams (1904).38 Despite the fact

that Puerto Ricans were not citizens of the United States (and only citizens of Puerto Rico), the

Court ruled in González that they were not aliens under U.S. immigration law. Isabel González,

a native-born resident of Puerto Rico, arrived in New York in August 24, 1902, but was

prevented from entering the country by the Immigration Commission, which claimed she was an

“alien immigrant.” Writing for a unanimous Court, Chief Justice Fuller determined that

residents of Puerto Rico were not “aliens” in the context of immigration law.39 After the

ratification of the Treaty of Paris, which made Puerto Rico a domestic territory, the residents of

the island could no longer be excluded as foreigners in the United States. Hence, Isabel

González would be released from detention and allowed to enter New York as a legal immigrant.

37 Hawaii v. Mankichi, 190 U.S 197 (1903); Rassmussen v. United States, 197 U.S. 516 (1905) 38 González v. Williams 192 U.S. 1 (1904) 39 Jaun Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal (Univ. de Puerto Rico, 1988), p. 69

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This did not make González a U.S. citizen. The ruling only meant that Puerto Ricans

could travel back and forth between the island and mainland America. Despite the Court’s

concerns about birthright citizenship, the fact that it was unanimous in González is not

surprising. Admitting Puerto Ricans like Isabel González as “U.S. nationals” for immigration

purposes is the logical conclusion of labeling Puerto Rico as a domestic possession. But while

not a U.S. citizen, it is worth mentioning that this ruling meant that any children Ms. González

had on the mainland would automatically be born U.S. citizens following the Court’s conclusion

in Ark. Whatever reservations the Court harbored in this regard, it respected legal precedent, and

we can assume that the justices felt less trepidation about the idea that only children “born and

raised” on the mainland, and thereby subject to more direct pressures of assimilation in

American society, would become citizens in this manner. “The judgment in González,” writes

Efrén Rivera Ramos, reveals the extent to which Puerto Rico and its residents, after Downes,

“came to inhabit an intermediate status, a sort of juridical limbo. Puerto Rico belonged to, but

was not part of, the United States; Puerto Ricans were not citizens of the United States, but were

not aliens either.”40

The indeterminate status of Puerto Ricans was quite literally a construction of the Court

in the Insular Cases, beginning with Downes and reaffirmed in subsequent cases involving other

territories. Not equal members of “We the People,” existing both within and outside the bounds

of the U.S. Constitution, Puerto Ricans were nonetheless accorded the ambiguous status of being

American subjects—neither foreigners nor fully American. To illustrate the role that birthright

citizenship played in the Court’s development of its “incorporation doctrine” over time, it is

useful to consider the Court’s decision to classify both Hawaii and Alaska as “incorporated”

territories in Hawaii v. Mankichi (1903) and Rassmussen v. United States (1905) in contrast to 40 Efrén Rivera Ramos, American Colonialism in Puerto Rico: The Judicial and Social Legacy (Markus Weiner Publishers, 2009), 94

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the “unincorporated” status of Puerto Rico first established in Downes just a few years earlier in

1901. The crucial factor in both these cases appears to be the transformative term “U.S.

citizenship,” which the Court constructed in a manner that supported the racial, cultural,

linguistic, and political status quo in America.

Let us begin with the incorporation of Hawaii. The case of Hawaii v. Mankichi (1903)

concerned the U.S. annexation of Hawaii in 1898. The plaintiff, Mr. Mankichi, was accused of

murder and convicted without a trial by jury after the annexation of the islands in the Newlands

Resolution, but prior to Congress’s enactment of the Hawaiian Organic Act that extended the

Constitution to Hawaii.41 Joined by two new Justices, Oliver Wendell Holmes and William R.

Day, Justice White concluded that Hawaii was not incorporated into the United States until 1900,

when Congress explicitly granted citizenship to its inhabitants. Since Mankichi was convicted

before this, the Court (following Downes) ruled that the Constitution’s Fifth and Sixth

Amendments did not protect his right to a trial by jury under the Constitution. In his dissent,

Chief Justice Fuller argued that, even based on “incorporation theory,” Hawaii was already

incorporated into the United States when it was annexed, because the preamble of the treaty

explicitly stated, “those islands should be incorporated into the United States as an integral part

thereof and under its sovereignty.”42 Focusing on assimilationist ideas about race and culture in

America, Justice Brown agreed that most of the Constitution applied to Hawaii “from the

moment of annexation,” taking time to note that the population included “large numbers of

people from Europe and America” with “civilized…political ideas and traditions.”43 Mankichi

illustrates the Court’s openness to extending rights to territories with populations from “Europe

41 Hawaiian Organic Act, ch. 339 § 6, 31 Stat. 141, 142 (1900) 42 S. Rep. No. 55-681, at 96 (1898) 43 Hawaii v. Mankichi, 190 U.S 197 (1903)

19

and America." Furthermore, following his statements in Downes, Justice White linked

incorporation to U.S. citizenship.

When the status of Alaska came before the Court in 1905, Justice White convinced an

overwhelming majority of the Court to sign on to his incorporation doctrine.44 Once again, this

case confirms the importance of U.S. citizenship in the incorporation process. In Rassmussen v.

United States (1905), Justice White wrote for a seven-justice majority that an inhabitant of

Alaska was entitled to the protections of the Sixth Amendment. Reasoning that Alaska was an

incorporated territory upon annexation, he concluded that the entire Constitution applied to the

territory. Facing the hurdle that the treaty of annexation did not actually include the word

“incorporation” (while ironically the Hawaiian treaty had), he emphasized that the treaty directly

conferred U.S citizenship to the inhabitants of Alaska, except indigenous tribes. Justice White

specifically distinguished Alaska from the Philippines, by quoting the treaty on the issue of

American citizenship: “The inhabitants of the ceded territory shall be admitted to the enjoyment

of all the rights, advantages and immunities of citizens of the United States; and shall be

maintained and protected in their free enjoyment of their liberty, property and religion.”45 The

word “incorporation” was not necessary. As Justice White put it, the declaration of the granting

of U.S. citizenship, “although somewhat changed in phraseology, is the equivalent [of the word

“incorporation”], as pointed out in Downes v. Bidwell, of the formula employed from the

beginning to express the purpose to incorporate acquired territory into the United States,

especially in the absence of other provisions showing an intention to the contrary.”46

In summary, incorporation increasingly became the dominant doctrine applying to the

status of the territories on the Court. And, as he sought to elaborate upon what it took for a

44 Rassmussen v. United States, 197 U.S. 516 (1905) 45 Ibid, at 622 46 Ibid, at 622

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territory to count as “incorporated” in later Insular Cases, such as Mankichi and Rassmussen,

Justice White indicated that the magic word signifying this conversion might be “citizenship.”

As we shall see in the context of Puerto Rico, while Justice White’s doctrine of Incorporation

would prevail as the law of the land to this day, his attempt to rely on U.S. citizenship as a proxy

for “incorporation” would not persuade the future Supreme Court.

5. The Jones Act and Balzac: The Triumph of Incorporation Doctrine This brings us to the Jones Act of 1917, in which Congress finally granted U.S. citizenship to the

residents of Puerto Rico.47 From a judicial standpoint, the Jones Act of 1917 raised serious

questions about whether Puerto Rico had finally been “incorporated” by Congress into the

United States. For, as noted above, Justice White, the founder of the “incorporation doctrine,”

previously indicated that U.S. citizenship in both Hawaii and Alaska was the most significant

sign of congressional intent to incorporate those territories. Would the Supreme Court view the

Jones Act, with its conference of U.S. citizenship, as a proxy for the incorporation of Puerto

Rico? The Supreme Court addressed the question in People v. Balzac (1922), which many

scholars label as the last of the Insular Cases.48 This case is noteworthy because the Court

unanimously embraced Justice White’s incorporation doctrine, but it did not adopt his

suggestions about the importance of using U.S. citizenship as a benchmark for assessing at which

point a territory becomes officially incorporated into the Union. In Balzac, the Court would

ensure that Puerto Ricans were second-class citizens under the Constitution.

Like Mankichi and Rassmussen, the case of People v. Balzac (1922) also involved the

Sixth Amendment right to a trial by jury. Jesus Balzac, the editor of a Spanish-language daily

newspaper in Puerto Rico, wrote an article about the American Governor of the island, which

47 Jones Act of 1917, 39 Stat. 951, 953 (1917) 48 People v. Balzac 258 U.S. (1922) at 304

21

local authorities determined was sufficiently libelous to condemn him to 9 months in prison.

Balzac claimed that the Jones Act entitled him to a trial by jury, granted to all U.S. citizens under

the Sixth Amendment. Hearing the case on appeal, the Supreme Court unanimously rejected this

claim in an opinion written by Chief Justice Taft. Of the nine original justices in the 1901 cases,

Justice McKenna was the only one who remained on the Court. Justice White, the architect of

the incorporation doctrine who later became Chief Justice of the Court, died in 1921, and

President Wilson replaced him with former President William Howard Taft, whose credentials

included being past Governor of the Philippines.49 Despite his friendship with Justice Harlan

(also departed), for whom he had clerked as a young lawyer, Taft was known for being an

outspoken imperialist and for his conservative views regarding the territories.50 He did not want

to place Puerto Rico on a path towards statehood, because it was merely a “distant ocean

[community].” Quoting previous Insular Cases including Mankichi, Taft began by proclaiming

that it was already “clearly settled” that the right to a jury does not apply to territories that have

not been incorporated into the United States, and the Court in Downes concluded that Puerto

Rico had not “been incorporated by the statutes providing for [its] provisional government.”51

Hence, the question (as Taft framed it) was whether the Jones Act had the effect of

“incorporating” Puerto Rico into the United States?

In this unanimous decision, the Court answered “no.” Taft emphasized that the Jones Act

contained no explicit language in its title or text about the “incorporation” of Puerto Rico into the

Union. This, he concluded, was a telling omission; for, “Had Congress intended to take the

important step of changing the treaty status of Porto Rico by incorporating it into the Union, it is

reasonable to suppose that it would have done so by the plain declaration, and would not have

49 Jaun Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal, p. 94 50 See e.g. William Howard Taft, “The Right of Private Property” (Mich. Law Journal 3:215, 1894) 51 Balzac, at 304-5

22

left it to mere inference”52 Aware that this argument was in tension with the previous rulings of

the Court in Mankichi and Rassmussen, Taft explained that conferring U.S. citizenship to Puerto

Ricans was “entirely consistent” with not incorporating the island. Distinguishing Puerto Rico

from Alaska, in order to downgrade the newly-minted U.S. citizenship of Puerto Ricans, Taft

wrote:

But Alaska was a very different case from that of Porto Rico. It was an enormous territory, very sparsely settled and offering opportunity for immigration and settlement by American citizens. It was on the American continent and within easy reach of the then United States. It involved none of the difficulties which incorporation of the Philippines and Puerto Rico presents, and one of them is the very matter of trial by jury.53

This contrast between Alaska and Puerto Rico is a striking example of the Court embracing the

expansionist ideology of manifest destiny. Whereas Taft described Alaska as an “enormous” and

“very sparsely” populated territory, ripe to be settled by “American citizens,” he painted Puerto

Rico as a “distant ocean [community] of a different origin and language from those of our

continental people.”54 Using Alaska as a counterpoint and emphasizing the “settler paradigm,”

Taft took pains to distinguish Puerto Rico from mainland America (i.e. geographically,

culturally, racially, and politically), as an island that is not American enough to enter into the

Union on a path toward statehood.

Moreover, in his denial of Balzac’s request for a trial by jury, Taft fell back on racist

assumptions about Puerto Ricans. He questioned the capability of Puerto Ricans, as a

community, to engage in “this institution of Anglo-Saxon origin,” because America’s “jury

system needs citizens trained to exercise the responsibilities of jurors…[including] a conscious

duty of participation in the machinery of justice which it is hard for people not brought up in

52 Ibid at 306 53 Ibid at 309 54 Ibid at 311

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fundamentally popular government at once to acquire.”55 Ignoring the fact that Puerto Ricans

had been participating in juries in felony cases already, Taft suggested that the islanders were too

primitive (“living in compact and ancient communities”) to suddenly be forced to adopt “Anglo-

Saxon” participatory government, along with its “customs and political conceptions” of

republican citizenship. How could such an island—with residents who were not American—be

incorporated into the Union on a path towards eventual statehood? Without room for settlement

by proper “American citizens” (as in Alaska), Taft seems to have concluded that it would be

impossible to transform an entire community to meet the minimum threshold of qualifying for

statehood.

Why, then, would Congress grant U.S. citizenship to Puerto Ricans? What special

benefits did the Jones Act confer, if it didn’t carry with it all the “privileges and immunities” of

U.S. citizenship under the Constitution? On this very topic, Taft suggested that the primary right

acquired by Puerto Ricans in the Jones Act was to move to the mainland and effectively

“complete” their American citizenship. As he put it, The Jones act,

…enabled [Puerto Ricans] to move to the continental United States and becoming residents of any State thereto, enjoy every right of any other citizen of the United States, civil, social, and political. A citizen of the Philippines must be naturalized before he can settle and vote in this country…Not so the Puerto Rican under the Organic Act of 1917.56

This is a vital distinction. Since Puerto Rico was not incorporated, the residents living on the

island would not enjoy all of the rights and protections in the Constitution. The citizenship of

Puerto Rican residents was patently inferior. However, after the Jones Act, any Puerto Rican

could freely move to mainland America, thereby realizing the potential of their domestic U.S.

citizenship and becoming full members of the American polity. Now, when a resident such as

González immigrated to a state like New York, she would trade the Puerto Rican society she had

55 Ibid at 310-11 56 Ibid 308-9

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known (her ethnic and cultural homeland) for all the rights and privileges under the Constitution

(becoming an official part of “We the People”). Ultimately, Balzac appears to be a triumph of

assimilationist ideas about American citizenship.

5.1 Returning to the Judicial Logic in Elk: The Island of Puerto Rico is Akin to a Native American Reservation It appears that the solution for the Court in Balzac was to approach the Island of Puerto Rico in a

similar manner to Indian Reservations. Puerto Rico was an island of civic exclusion. Like tribal

reservations, the new territories were characterized as being isolated from mainstream society:

Literally, islands unto themselves. Puerto Rico (and the other unincorporated islands) contained

indigenous communities of different races, backgrounds, traditions, and cultures that were

removed from American mainstream society. For this reason, Puerto Rico could not become a

state in the Union: It was geographically and spatially removed from the full application of the

U.S. Constitution, akin to a “semi-sovereign” tribe, just without the illusion of partial

sovereignty until it gained more local autonomy in the 1950s (i.e. becoming an unincorporated

“Commonwealth”).57 Like Native American tribes, the law addressed Puerto Ricans on group

terms labeling them based upon their demographic consolidation in one geographic locality. As

Lisa Maria Perez writes, “the courts have consistently dealt with…Puerto Ricans on group

terms…American citizenship was both initially denied and subsequently conferred to Puerto

Ricans on a collective basis, and the Court in the Insular Cases ruled upon their overall

constitutional status as a group.”58 On the island, residents were defined by their geographic

place of residence, but after the Jones Act the same person could renounce allegiance to their

homeland by choosing to assimilate into mainstream American society.

57 Public Law 600: Act of July 3, 1950, ch. 446, 64 Stat. 319 (1950); Public Law no. 447, ch. 567, 66 Stat. 327 (1952): On the proposed Puerto Rican Constitution and its official title as, ‘Commonwealth of Puerto Rico’ 58 Lisa Maria Perez, “Citizenship Denied: The Insular Cases and the Fourteenth Amendment.” (Virginia Law Review 94: 4, June 2008), p. 1076

25

This paralleled the growing movement during this time to grant U.S. citizenship to Native

Americans in exchange for individual renunciations of tribal affiliations and agreement to

relocate to mainstream American society. The policy that the government pursued in both cases

was one of coercive assimilation. Since both tribes and islands had their own indigenous culture,

this policy of assimilation involved removing an individual from his or her community in

exchange for the rights and benefits of U.S. citizenship. Thus, Chief Justice Taft suggested that

the full assimilation of Puerto Ricans required relocation from the “different” and “distant”

island communities to “Anglo-Saxon” society. The Jones Act of 1917 did not change the

unincorporated (outsider) status of the island of Puerto Rico—rather, it gave its residents the

right to seek full assimilation in American society as individuals removed from their insular

group.

In its retreat from the inclusionary implications of Ark, the Court appears to have fallen

back on its earlier exclusionary reasoning in Elk v. Wilkins (1884), regarding the citizenship

status of Native Americans under the Fourteenth Amendment (or lack thereof). In Ark, the

Court’s majority framed its inclusive citizenship ruling as merely a minor concession to the goal

of automatically granting birthright citizenship to the children of desirable immigrants from

Europe, under the assumption that the Chinese Exclusion Acts and tightening immigration laws

would minimize the number of Asians and other people of color that could claim this right. But

after the Spanish-American war, this concession no longer seemed trivial, for it threatened to

flood the United States with millions of foreign natives from places that were not “American.”

Failing to anticipate the transformative events involving the Spanish-American war, the Downes

Court was “forced” to engage in impressive judicial gymnastics to retreat from the most

inclusionary implications of its previous “birthright citizenship” ruling in Ark. Yet while

Downes merely hints at the direction of this retreat, with panicked rhetoric about the dire

26

consequences of extending birthright citizenship to the natives of the new possessions, Balzac

represents the culmination of this juridical retreat back to the exclusionary logic pertaining to

Native Americans in Elk, but with the added judicial innovation of addressing Puerto Rico as a

semi-independent society located abroad, rather than a semi-sovereign Indian nation located

within the continental United States. In Balzac, the Court adapted previous logic to

accommodate changing global realities, coming up with a novel (patchwork) way to legally

dilute the rights of U.S. citizenship for those living in Puerto Rico and encourage assimilation to

mainland America. This raises an important question, which I shall now address in the final

section below: What effect did the triumph of the “incorporation doctrine” in the Insular Cases

have on citizenship policy in Puerto Rico throughout the twentieth century?

Conclusion: Puerto Rico Today & the Legacy of the Insular Cases

To this day, the residents of the Commonwealth of Puerto Rico experience a distinct form of

second-class citizenship associated with living in an (as yet) unincorporated territory. By

steering Puerto Rico away from the path to statehood in the Insular Cases, the Court essentially

set the island down the road of political and legal indeterminacy within the United States. After

the Court’s ruling in Balzac, the Territorial Clause instead of the Citizenship Clause applies to

U.S. citizenship in Puerto Rico, so Congress has wide discretionary power to define the limits of

this citizenship along territorial lines.59 As a consequence, U.S. citizens on the island of Puerto

Rico have a truncated citizenship from those on the mainland. As Elideberto Román bluntly puts

it, the “people of Puerto Rico are not full U.S. citizens because they do not share the same rights

held by other U.S. citizens.”60

59 Territorial clause note 60 Elideberto Román, The Alien-Citizen Paradox and Other Consequences of U.S. Colonialism. (Fla. St Univ. Law Review 1, 19:146, 1998).

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Now officially named the “Commonwealth of Puerto Rico,” the island remains an

unincorporated territory of the United States. First claimed for Spain by Christopher Columbus

on his second voyage to the Americas in 1493, the territory of Puerto Rico was later transferred

from Spain to the United States in 1898, and today José Trías Monge writes that that island “has

become, to its embarrassment and that of the United States, the oldest colony in the modern

world.”61 The title of ‘Commonwealth’ merely reflects the fact that Congress allows Puerto Rico

greater autonomy today, with the caveat that this liberty is revocable by Congress at any time.

When Congress approved the development of elected self-government on the island in 1950 (in

Public law 600), with no reference to “incorporation,” the people of Puerto Rico accepted the

law by democratic referendum and drafted a Constitution for Puerto Rico.62 But prior to

approving Puerto Rico’s Constitution in 1952, Congress amended it by first eliminating a

declaration of Human Rights in the original draft, and also requiring that the Constitution affirm

the authority of Congress over of Puerto Rico in its text by adding “language that essentially

would require Congressional approval of amendments to the Puerto Rican Constitution.”63 This

was in keeping with the (unincorporated) status of Puerto Rico, as being under the ultimate

control of Congress. With the ratification of this new Constitution, Puerto Rico became a non-

state Commonwealth. Yet, as the former Dean of the University of Puerto Rico Law School,

David M. Helfeld suggests, labeling the island as the “Commonwealth of Puerto Rico” is

potentially misleading regarding its relationship to the United States: “Though the former title

[as a mere possession] has been changed, in constitutional theory Puerto Rico remains a territory.

This means that Congress continues to possess plenary (unexercised) authority over Puerto Rico.

61 José Trías Monge, Puerto Rico: The Trials of the Oldest Colony in the World (Yale Univ. Press, 1997), 4 62 Public Law 600: Act of July 3, 1950, ch. 446, 64 Stat. 319 (1950); Public Law no. 447, ch. 567, 66 Stat. 327 (1952): On the proposed Puerto Rican Constitution and its official title as, ‘Commonwealth of Puerto Rico’ (Estado Libre Asociado). 63 Pedro A. Malavet, “Puerto Rico: Cultural Nation, American Colony,” (Mich J. Race & L. 1:147), at 35.

28

Constitutionally, Congress may repeal Public Law 600, annul the constitution of Puerto Rico and

veto any insular legislation which it deems unwise or improper.”64

Moreover, the rights available to U.S. citizens in Puerto Rico are abridged by its status as

an unincorporated territory. The Supreme Court has never, in the last 115 years of American

rule in Puerto Rico, “held a federal law unconstitutional for violating the rights of residents of

Puerto Rico.”65 The most apparent sign of the second-class U.S. citizenship of Puerto Ricans

and the residents of other unincorporated territories today is the fact that they cannot vote in

federal elections. Although the Supreme Court has held in cases like Reynolds v. Sims (1964),

that the right to vote is a “fundamental political right, because [it is] preservative of all rights,”

both Congress and federal courts have used the Insular Cases to prevent the residents of Puerto

Rico from voting for the President of the United States (e.g. see Igartua De La Rosa v. United

States).66 The 4.6 million Puerto Ricans who reside on the American mainland enjoy the full

benefits of American citizenship today, as assimilated members of American society, but the

nearly 4 million people who reside on the island of Puerto Rico remain unable to vote in

Presidential elections or for representation in Congress.67 (To put this in perspective: The

population of Puerto Rico, although declining from emigration to mainland America, is larger

than over twenty states, all of which have equal representation in the Senate and proportional

seats in the House.68) These restrictions on voting and representation within the American

political system powerfully “dilute the meaning of citizenship for islanders” for they cannot

64 David M Helfeld, Congressional Intent and Attitude toward Public Law 600: The Constitution and the Commonwealth of Puerto Rico, 21 Rev. Jur. U.P.R. 255, 307 (1952) 65 Perez, “Citizenship Denied: The Insular Cases and the Fourteenth Amendment,” 2008, p. 1077 66 Igartua De La Rosa 32 F. 3d. at 10 67 Pew Hispanic Center, A Demographic Portrait of Puerto Ricans, 2009, 1 (2001), available at: http://pewhispanic.org/files/reports/143.pdf. 68 http://www.infoplease.com/us/states/population-by-rank.html, See also: https://www.census.gov/hhes/socdemo/education/data/acs/paa2010/Collazo_Ryan_Bauman_PAA2010_Paper.pdf

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exercise the suffrage rights associated with full participatory U.S. citizenship.69 Given how

important voting rights are in the United States—and the fact that the Fifteenth Amendment

protects access to the franchise as a right of citizenship, which “shall not be denied or abridged

by the United States or any State on account of race, color, or previous condition of servitude”—

it is shocking that islanders lack the right to vote for representation in any elective branch of the

national government, but still remain under the control of Congress.70

In summary: More than a century ago, Puerto Rico narrowly missed being placed on a

path toward statehood in the Union. The triumph of the “incorporation doctrine” has had far-

reaching and damaging consequences for the status of territory and the rights of its people. From

a lack of national voting rights to substandard access to governmental aid programs—including

those influencing the birth, health, and opportunities for mothers and children (i.e. quite literally,

the next generation of citizens)—millions of U.S. citizens remain merely partial members of the

U.S. polity by virtue of their residence on the island of Puerto Rico. In the words of Supreme

Court Justice Sonia Sotomayor, who is ethnically Puerto Rican but born in New York City

(appointed by President Obama in 2009), the citizenship of those born in Puerto Rico is “a

circumscribed statutory citizenship, a status with more limited rights that [are] enjoyed by

citizens on the mainland, and [there are] consequences of living under those limitations for the

better part of a century and perhaps indefinitely.”71 Rooted in a long history of racial and

cultural efforts by the U.S. government to circumscribe citizenship in overseas territories, the

doctrine of ‘territorial incorporation’ continues to determine the status of Puerto Rico in relation

to the United States and the meaning of U.S. citizenship for millions of Americans residing in the

nation’s unincorporated territories today.

69 Ibid, 718 70 Lisa Napoli, The Legal Recognition of the National Identity of a Colonized People: The Case of Puerto Rico, (B.C. Third World L. Journal 18:159, 1998), at 178. 71 Sonia Sotomayor, My Beloved World, (Vintage Books, 2013), p. 225