As immigration reform moves forward, Congress must act to reverse the legacy of infamous Supreme Court rulings that still trespass on Puerto Rico’s right of self-determination and equal citizenship
By Howard L. Hills*
I. Redeeming the promise of equality in America
As our fellow Americans in Puerto Rico enter the twelfth decade of a struggle for self-determination, a new potential setback has emerged, the irony of which would be almost as cruel as nine decades fighting overseas for democratic rights of foreign peoples that Puerto Rico is denied back at home.
It could be regarded as profoundly unfair and demoralizing for Puerto Rico if 11 million people who entered the U.S. unlawfully are given a path to full enfranchisement and equal citizenship rights, while the 4 million U.S. citizens of Puerto Rico remain disenfranchised in a less than equal citizenship status. How would Puerto Ricans explain that to their children?
How will anyone explain an outcome in which millions of non-citizens who enjoy many of the blessings of our way of life without first complying with our laws are given preferential treatment over our law-abiding fellow Americans in Puerto Rico in seeking equality? Who will explain how non-citizens unlawfully present in America will be fully embraced and integrated into American society before the tried, tested and true patriotic American families of Puerto Rico who have lived under the American flag lawfully for 114 years?
II. Allegiance and equality
Along with U.S. citizenship conferred in Puerto Rico by Congress in 1917 came the duty of allegiance that accompanies it. In America equality is the quid pro quo for allegiance. The denial of equality based on Puerto Rico’s allegiance to America is the corrosive legacy of the 1922 decision of the U.S. Supreme Court in the case of Balzac v. Puerto Rico.
Former U.S. Attorney General Thornburgh has called for the Congress and/or the federal courts to repudiate the obsolete imperialistic doctrine of the 1922 Balzac case, and mandate timely self-determination as a basis for action by Congress leading either to incorporation and statehood or independence for Puerto Rico.
Thornburg also has noted that failure to do so will be inconsistent with the very human rights principles regarding universal suffrage and equal rights the U.S. holds up in criticizing undemocratic regimes around the world.
III. The missing link in legal policy on Puerto Rico status
A milestone in the discourse on self-determination leading to equal citizenship for Puerto Rico was publication by the Center for Strategic and International Studies in 2007 of a brief history of American territorial law and policy in the Twentieth Century by former U.S. Attorney General Dick Thornburgh.
In “Puerto Rico’s Status: A Time to Decide,” Thornburgh’s thesis is that application of the imperialist legal and political model for territorial governance under the Insular Cases should have ended once Congress conferred U.S. citizenship in Puerto Rico back in 1917. At least that would have been the result if not for the 1922 ruling by the Supreme Court that deviated from nearly 150 years of anti-colonial American territorial law dating back to the Northwest Ordinance.
Thornburgh demonstrates that the paramount legal and historical significance of the U.S. Supreme Court’s ruling in Balzac v. Puerto Rico is that the Court deviated materially from the line of earlier territorial law decisions known as the “Insular Cases.” Thornburgh argues that it perversely validates Balzac to simplistically denominate that ruling as one of the Insular Cases, thereby giving the false impression the 1922 ruling cogently and cohesively sustained the jurisprudence of those earlier territorial law cases.
To the contrary, the lead Insular Cases (DeLima v. Bidwell, Downes v. Bidwell, Dorr v. United States), each confirmed the authority of Congress under the Territorial Clause to govern non-citizens under the national protection of America and residing in overseas territories newly acquired from Spain but not incorporated into the union.
IV. A forgotten phrase is smoking gun proving Balzac case flaws
The most pronounced effect of non-incorporation is that residents of the territory are for the most part beyond the reach of the Constitution, except as provided by Congress under statutory territorial policy concocted on an ad hoc basis.
Thus, in Downes v. Bidwell the U.S. Supreme Court stated that unincorporated territory status was a temporary arrangement enabling the U.S. to govern the territory under the Territorial Clause until Congress conferred citizenship. Specifically, the court stated that, “… in the case of Porto Rico and the Philippines…the civil rights and political status of the native inhabitants . . . shall be determined by Congress. In all these cases there is an implied denial of the right of the inhabitants to American citizenship until Congress by further action shall signify its assent thereto.”
In contrast, the court’s rulings in the Rasmussen case (Alaska) and the Mankichi case (Hawaii) held that upon coming under U.S. sovereignty a territory populated by U.S. citizens is incorporated, which ushers in application of those parts of the Constitution not applicable only to states, and integrates the body politic of the territory into the nation until full equal rights and duties of citizenship are achieved through admission to statehood.
Thornburgh was the first to argue that the Supreme Court’s ruling in the 1922 case of Balzac v. Puerto Rico was a radical departure from both the unincorporated territory doctrine of the Insular Cases as applied to non-citizens and the citizenship based incorporation doctrine of the Alaska and Hawaii cases.
Thus, Thornburgh was able to sustain his thesis that Balzac misappropriated the unincorporated territory doctrine of the Insular Cases, as it applied to non-citizens “until Congress…shall signify its assent” to citizenship. The Balzac court then wrongly applied that pre-naturalization doctrine of non-incorporation to Puerto Rico after Congress had naturalized the population and conferred citizenship on all persons born there in 1917.
The term “metaphysical purgatory” was recently used to describe Puerto Rico’s current status, but it is an understatement. Thornburgh has at times been more stark, calling territorial status under Balzac a “constitutional nowhere land.” But Ronald Reagan beat them both to the punch when he noted that as a territory Puerto Rico “…is neither a state nor independent, and therefore has an historically unnatural status.”
* Formerly lead Counsel for White House National Security Council on territorial political status affairs and U.N. decolonization proceedings; Former lead Counsel for political status treaty negotiations and economic development programs, U.S. Department of State. Views expressed are those of the author and no other party.
The National Association for Uniformed Services (NAUS) has written an open letter to President Obama asking him to end the second class U.S. citizenship for Puerto Ricans.
The letter begins with a plea:
Please, join American Patriots [and] help get the Federal Government to end a second class US Citizenship. This complex equal rights quandary that affects millions is not only about a “Group” Vote on the status question, but, more important, it’s about protecting individual civil rights in our representative democracy-where the US citizen should be the epicenter of our Republic, not the undemocratic territorial control of the land… We must end political oppression with truth and fairness!
A reminder of the historical context follows, concluding with, “In 1917, Congress erred in imposing on Puerto Rico a statutory “second class US citizenship” (without all rights responsibilities, & benefits) that doesn’t permit loyal US citizens (including fighting US veterans) to vote in Federal elections nor have just representation in the Congress that determines their destiny.”
The letter summarizes the results of the plebescite and suggests that the United States has two honorable courses available:
- [E]nd an undemocratic Federal Territorial Status that goes against the grain of our American democracy; start the transition process (which should not take more than 3-5 years) to admit Puerto Rico as the 51st State of our Union.”
- [P]romptly conduct a federally sanctioned Plebiscite that is non-territorial & self-determined… truthfully define US Constitutional options… which are: 1. Statehood…(or) 2. Independence.
The letter notes that a territory of the United States cannot enter into an equal pact of any kind with the United States government. This has been confirmed repeatedly by many authorities in discussions of a possible “Enhanced Commonwealth.” NAUS points out that Puerto Rico would have to become an independent nation in order to enter into a treaty with the United States on its own behalf.
The letter continues with a discussion of the value of Puerto Rico to the United States, listing the military value, the resources, and the people of Puerto Rico:
Our Nation is formed by the union of States [each with its] own State sovereignty, identity, uniqueness, diversity. US citizens in PR, like other states, are a very complex group of people that are legally born US citizens- part of our US multi-ethnic and beautiful “Tapestry” of vibrant colors that is united and bonded together by common values and purpose for the good of all.
The letter touches on the idea that Puerto Rico is somehow too foreign or too different from other states to be incorporated successfully into the Union and rejects that claim.
“We must stop confusing the people by calling PR a ‘Commonwealth’,” the letter concludes. “Abraham Lincoln and Martin Luther King (who stood for a government of the People and equality) would be appalled that the US Territory of PR is still an undemocratic dinosaur of our trite colonial past!”
Finally, there is a petition for action on the question of Puerto Rico’s status, and supporting notes. See the PDF file of the letter.
During the presidential election, the subject of immigration reform came up frequently. So did the subject of Puerto Rico’s status. In fact, the two topics often came up together — much to the irritation of Puerto Ricans.
“We are citizens, not immigrants,” José Aponte Hernandez was quoted as saying in El Vocero de Puerto Rico, a free newspaper published in San Juan. Aponte Hernandez, former Speaker of the House of Representatives of Puerto Rico, is one of a group of statesmen who will travel to Washington on March 2, 2013, the anniversary of the day in 1917 when Puerto Ricans were granted U.S. citizenship.
It is startling that, nearly a century later, Puerto Ricans are still thought of as immigrants. Mainstream media continue to describe Justice Sotomayor as “the daughter of Peurto Rican immigrants,” and Puerto Rican leaders are asked their views on immigration reform as though they would be personally affected by such reforms.
Aponte Hernandez pointed out that “the issue of equality of American Citizenship in Puerto Rico is not discussed as much as undocumented immigrants in the United States.”
Controversy regarding the November plebiscite has centered on issues of logistics and speculation on the intentions of voters, disregarding the continued unequal treatment of the millions of U.S. citizens living on the island.
“Given this situation,” Aponte Hernandez continued, “it is necessary to pressure the President and Congress to honor the results of the plebiscite held on November 6… Let’s celebrate our American citizenship, and demand equality.”
The delegation will visit Capitol Hill and the White House, where they will present their case for equality for Puerto Rico. Meanwhile, in Puerto Rico, protesters will go to the Federal Court in San Juan, as well as the municipalities of Arecibo and Mayagüez, to express their support of the delegation.
The events have the support of Resident Commissioner Pedro Pierluisi, Aponte Hernandez said.
Puerto Rico’s Resident Commissioner Pedro Pierluisi (D-PR)announced this morning that he will reintroduce two bills tomorrow to advance equality for the territory of Puerto Rico. His legislation seeks to create parity between U.S. citizens who live in Puerto Ricans and those who live in a state in two federal programs: Social Security Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF). Continue reading →
The State Election Commission of the Commonwealth of Puerto Rico has released the final certified election results for the November plebiscite. Continue reading →
More than one hundred advocates of Puerto Rican statehood and Puerto Rican independence are joining forces this week in Washington to advocate an end to the island’s territorial status. Continue reading →
The Republican Party of Puerto Rico is stepping up its outreach to the leadership of the House of Representative to urge action on the November Puerto Rican plebiscite. Members of the Party will join a coalition of forces meeting in Washington today to advocate congressional action on the recent Puerto Rican vote for statehood.
Local Republican outreach to national leaders began immediately after the plebiscite, when party leaders contacted Speaker Boehner (R-OH), Majority Whip Eric Cantor (R-VA), and Majority Whip Kevin McCarthy (R-CA) through aletter noting the plebiscite results in favor of statehood as well as Republican support for Puerto Rican statehood over the years. The letter explains: Continue reading →
The State Election commission of PuertoRico issued an official preliminary certification of plebiscite results on November 9th, two days after the landmark election in which the people of Puerto Rico voted for the first time to become a state of the United States. The Puerto Rico Report has posted a copy of this document, which can be viewedhere. Continue reading →
“In the days following the general election,” wrote Arelis Hernandez of the Orlanda Sentinel last week, “it quickly became clear that Puerto Rican voters helped tip the scales of political power in Central Florida.”
In the same story, though, Puerto Rican businessman Raul Ramos, director of the Puerto Rican Leadership Council, was quoted as saying, “Candidates come eat arroz con pollo and talk about their Puerto Rican college roommates to us, but they’re gone once the election is over. We want more than that — we want a seat at the table.” Continue reading →
The Puerto Rican legislature has enacted a concurrent resolution calling upon Congress and President Obama to implement the November 6 plebiscite results and “end, once and for all, [Puerto Rico’s] current form of territorial status” and begin the process of making Puerto Rico a state. Continue reading →
In 10 things the GOP can do to turn the tide with Latino voters, Samuel Rosado and Brittney Morrett list some steps Republicans could take to improve their position with Hispanic voters in the U.S., including making Puerto Rico the 51st state. Continue reading →