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.