I am from the deep South, and [Puerto Ricans] are from the deep, deep South.

—Jimmy Carter, 1976 (expressing his sympathy with Puerto Rico’s political isolation)

Note: The idea for this guest post came out of a brief discussion I had with Ted Folkman in the comments section of one of his posts regarding his take on statements made by Judge Juan R. Torruella in his dissent in a First Circuit case dealing with Puerto Rico federal voting rights (or, more accurately, the lack thereof). Ted graciously made this space available to me to further comment on the matter. I take the opportunity to provide a short comment on the federal judiciary’s reluctance to help fix what in my opinion is a historical wrong that it helped create.

Dubious theories devised by legal scholars from Yale and Harvard and the subsequent blessing of those theories by the Supreme Court played a crucial role in the disenfranchisement of residents of Puerto Rico, a population of U.S. citizens that is currently larger than that of 24 states of the Union. (Except for persons born in American Samoa and the Swains Islands, almost everyone born in U.S. territories automatically becomes a U.S. citizen.)

For instance, during the debate over the so-called question of imperialism in the immediate aftermath of the Spanish-American War of 1898, in which the United States stripped Spain of its island colonies, in a paper published in the Harvard Law Review, Professor James Bradley Thayer bluntly stated that “there is no lack of power in our nation,—–of legal, constitutional power, to govern these islands as colonies, substantially as England might govern them.” Thayer charged so-called anti-imperialists with “perver[ting] the large utterances of the Declaration of Independence [ellipsis] as if it were pertinent to any questions now up, that government derives its just powers from the consent of the governed.” Hence, he dismissed what he called “the childish literalness which has crept into our notions of these principles of government, as if all men, however savage however unfit to govern themselves, were oppressed when other people govern them; as if self-government were not often a curse.” Thayer went on to conclude that “only in an international sense can it be said that the territories [like Puerto Rico] are a part of the United States, as that phrase is used in the Constitution.”

Soon after, and just a few years after announcing its “separate but equal” doctrine in Plessy v. Ferguson, the Supreme Court accommodated U.S. expansionism with attitudes that rejected the incorporation into the United States of islands populated by “alien races.” Thayer’s argument was echoed in Justice Edward Douglas White’s concurring opinion in the 1901 decision in Downes v. Bidwell—perhaps the most important of a series of cases known as the Insular Cases, which, as the Court reiterated in 2008 in Boumediene v. Bush, is still essential to discern the law applicable in U.S. territories and other places under effective U.S. control.

According to Justice White’s concurrence, the acquisition of territory by the United States does not mean that it automatically becomes part of the country. By differentiating “incorporated” and “unincorporated” territories, Justice White endorsed a dichotomy advanced by Professor Thayer and according to which only the first category is considered part of the United States. White asserted that “while in an international sense Porto [sic] Rico was not a foreign country, since it was owned by the United States, it was foreign in a domestic sense, because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession.”

In its 1922 decision in Balzac v. Porto [sic] Rico, the Supreme Court unanimously endorsed the position supported by Professor Thayer and Justice White. Thus, through opinions peppered with racist rationale, the Court cemented a “territorial incorporation” doctrine that provided the legal foundation for the regime of non-representative government that exists in Puerto Rico. On many occasions, subsequent federal court decisions have reiterated that Puerto Rico remains subject to Congress’ plenary powers under the Territory Clause of Article IV, § 3 of the U.S. Constitution.

Early in the 1950s, the United States (with the support of what was then Puerto Rico’s undisputed political ruling class) told the United Nations that it had devised a legal framework that enabled Puerto Rican self-government. But from the outset there were many signs indicating that not much had changed in terms of the U.S. government’s assertion of power over Puerto Rico, something that was confirmed by the political developments of the next couple of decades. By the late-1970s, Puerto Rico was unquestionably “out of the colonial closet,” as now-Second Circuit Judge José A. Cabranes put in a 1978 article in Foreign Policy. Since then, all branches of the U.S. government have confirmed that the existing governmental framework was merely the result of a policy decision made by Congress in the exercise of its plenary powers over the territory. Accordingly, Puerto Rico remains, in the words of Justice White, “foreign in a domestic sense,” and as Ohio Senator Joseph Foraker stated in 1900, Congress retains the “right to legislate with respect to [Puerto Rico] as [it] may see fit.”

Slowly, but steadily the U.S. political and legal system has significantly decreased the number of disenfranchised groups and of the political isolation of minorities that was endorsed by a rational crafted in legal terms in infamous Supreme Court decisions such as Dred Scott v. Sanford and Plessy. American developments in politics and law have recognized that, as the Court observed in Reynolds v. Sims, “[t]o the extent that a citizen’s right to vote is debased, he is that much less a citizen.”

Many prominent jurists—including, for example, former U.S. Attorney General Dick Thornburgh, Judge Torruella, and former Puerto Rico Chief Justice José Trías Monge—have observed that the Insular Cases read as about as up-to-date as the Dred Scott and Plessy decisions. In fact, Justice Henry Billings Brown authored the principal opinion in both Plessy and Downes, while Justice John Marshall Harlan was a passionate dissenter in both cases. (Ironically, however, in <em<Dred Scott the Court had said that “[t]here is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure. [ellipsis] [N]o power is given to acquire a Territory to be held and governed permanently in that character.”)

In advancing the case for civil and political rights for minorities in the mainland, the federal judiciary gained much deserved admiration. But a far cry from the landmark moments in which the Supreme Court has stepped in to declare that the U.S. Constitution does not tolerate treating discrete minorities as citizens of lesser value, when it comes to Puerto Rico federal courts adhere to a construction of the federal charter that enables unrepresentative government to rule over a large community of U.S. citizens. Meanwhile, Congress, in whom according to the judiciary the plenary powers over Puerto Rico reside has also repeatedly turned down all chances to address the matter. As The New York Times observed in a 1998 editorial, “[b]oth the Republican and Democratic platforms have long supported Puerto Rican self-determination. Yet Congress has repeatedly failed to give islanders a say on their political status.”

In the face of congressional stagnation, and appealing to the Supreme Court’s long asserted commitment to conduct “a more searching judicial inquiry” when necessary to protect the rights of “a discrete and insular minority,” on several occasions citizens, activists, and even the Puerto Rico government, have asked federal courts to issue rulings that, as with several other American historical wrongs, may jumpstart a process that addresses the political predicament of Puerto Ricans. But in sharp contrast with the instances when the Supreme Court has intervened to pave the way for the elimination of official disparate treatment of minorities that lack the political means to push Congress to address their plight, the federal judiciary remains unwilling to intervene and help correct the wrong that it helped create regarding Puerto Rico.

Consequently, Puerto Rico’s legal reality places it in a catch-22 that keeps in place what Judge Torruella has labeled a “doctrine of separate and unequal” and a “regime of political apartheid.” As Retired Justice Sandra Day O’Connor has observed, Puerto Rico “ha[s] become a State within a common and accepted meaning of the word.” However, in stark contrast with the residents of the mainland, Puerto Rico’s residents have no say in the decisions of the federal government, decisions that affect Puerto Rico at least as much as they affect the 50 states and other territories.

Not long ago, in refusing to address the matter head on, the First Circuit stated that a different course of action may “embarrass the United States.” Well, as Judge Torruella observed in dissent:

Embarrassment indeed! The U.S. should be embarrassed at its denying equal rights to four million of its citizens in this day and age. That fact itself—–particularly in light of the government’s intense encouragement of democratic reform in other nations and purported commitment to international instruments that guarantee equal political participation by all citizens—–could be “trumpeted as propaganda in international bodies and elsewhere.” Was it “embarrassment” that finally reversed Plessy? If embarrassment is what it takes to give equal rights to the United States citizens of Puerto Rico, maybe a dose is appropriate.