Two
cases were recently decided by the Supreme Court of the United States regarding
Puerto Rico and its constitutional relationship with the United States. These
cases were Puerto Rico v. Sanchez Valle[1]and
Puerto Rico v. Franklin California
Tax-Free Trust [2]. Congress recently passed a legislation called
“The Puerto Rico Oversight, Management, and Economic Stability Act[3],
ironically referred as “PROMESA” (promise in Spanish), to which the
government of Puerto Rico was placed on a trusteeship by the U.S. government.
With the passing of this legislation the United States government strengthen
the colonial grip of plenary power that were validated a century ago in the Insular Cases[4].
In Loughborough v. Blake[11] Chief Justice Marshall stated:
In Flemin v. Page[12] Chief Justice Taney stated:
In Scott v. Standford[13] Chief Justice Taney stated:
In 1899, the Carroll Commission, appointed by President McKinley to investigate prevailing conditions in Puerto Rico, concluded that there should be “no hesitation in affirming that the people of Puerto Rico have good claims to be considered capable of self-government.”[25] The military governor of Puerto Rico at the time, General Davis, challenged the Commission recommendations stating that “the people of Puerto Rico generally have no conception of political rights combined with political responsibilities.”[26]Congress proceeded to enact the Foraker Act of 1900.[27] Congress accomplished with this act the following: create a colonial apparatus to replace the military regime, that had rule in Puerto Rico since its invasion, and raising money to fund this new administration.
Historian Rubin Francis Weston describes what actually happened in the political arena during the rise of imperialism in the beginning of the 20th century:
American politician and German immigrant, Carl Schurz, stated the following:
U.S. Senator R.F. Pettigrew stated:
Puerto Rico status has not changed over this period, nor has that of its citizens. Just five years after Puerto Ricans were granted U.S. citizenship in the United States when Congress passed the Jones Act[33], Supreme Court ruled, by opinion of Chief Justice Taft, in Balzac v. Porto Rico[34] that the granting of United States citizenship meant for Puerto Ricans that they could move to the Mainland and there exercise full right as citizens, but that they were not entitled to the full rights of the United States citizens while residing in Puerto Rico, such in the Balzac case, the right to trial by jury.
Recently Puerto Rico was struck by two hurricanes. The last one, Hurricane Maria destroy the island entire electric grid. Puerto Rico, before the passing of Hurricane Maria, was starting to feel some of the austerity measures imposed by the Oversight Board over the local government of Puerto Rico. Congress is currently discussing a legislative measure[35] for aid to Texas, Florida and Puerto Rico, the crucial difference is that the Puerto Rican government will currently get it as a loan, not as a grant like Texas and Florida. Puerto Ricans are American citizens, they do not need to hope that in the future the loan will be condoned. Wall Street doesn’t have the right to get rich in a humanitarian crisis. We deserve a grant. As American citizens, we deserve justice.[36]
[1] 136 S.Ct. 1863 (2016)
Does the United States practice what
it preaches? The United States is well known for actively promoting democracy
values in the world. Unfortunately, it does not in relation with the political
and constitutional rights of the people who reside in non-state jurisdictions.
These jurisdictions are often referred as “territories”, “possessions” when
they are de facto and de jure
colonies. In January 13, 2016 files the reports as required by Article 73(e) of
the United Nations Charter, part of the UN Declaration Regarding
Non-Self-Governing Territories[5].
Regarding Puerto Rico, the United States ceased filing these reports in 1952,
following representations in the General Assembly of the United Nations to the
effect that Puerto Rico had become a self-governing entity by reason of the Commonwealth
of Puerto Rico. These arguments, made with success in 1952, did not represented
the true constitutional situation when they were made nor have they become
truer. Any doubt of this assertion may be eliminated by consulting the United
States Supreme Court Puerto Rico v.
Sanchez Valle, in which the Supreme Court confirmed that the approval of
self-governing of Puerto Rico in 1952 did not change Puerto Rico’s fundamental
constitutional status as a United States territory, subject to the authority of
Congress under the Territorial Clause.
A more present example of Congress’s
colonial control over Puerto Rico can be clearly seen in the previously mention
“PROMESA” law which established a so-called “Oversight Board”, a non-elective
entity seven members appointed by the President. The Board has the power to
impose deadlines on the government of Puerto Rico for developing a fiscal plan
and a budget that meets with the criteria set by Congress, as well as to the
right to reject’s Puerto Rico’s proposal. The law, also gives the prerogative
to demand any information and documentation that they believe its relevant from
the Government of Puerto Rico, and also requires the Puerto Rico’s legislative
to submit all acts it passes along with estimates of their cost for evaluation
by the Board. The Board can determine that an act passed by the Puerto Rican
legislature is inconsistent with the fiscal plan, it may unilaterally dictate
that the act can be changed or simply overrule the Government of Puerto Rico.
The Board can require the government of Puerto Rico. The Board can require the
Government of Puerto Rico to submit all contracts and leases to the Board for
approval.
The present constitutional
relationship between the United States and Puerto Rico began with the Treaty of
Paris of 1898 which ended the Spanish American War. In providing for the
cession of Puerto Rico from Spain to the United States, the Treaty stated, in
its Article IX, that “the civil rights and political status of the native
inhabitants shall be determine by Congress.” This provision was contrary to
earlier practice in the territorial expansion of American legal history. In all
prior cases, upon acquiring additional territory, United States citizenship and
rights were granted to the inhabitants of the nearly acquire lands irrespective
of the means used to add those territories to the nation’s domain.[6]
The practice instituted after the
Spanish American War departed not only from past United States practice, but
were also were a retrogression from how things were done in Puerto Rico during
the Spanish rule. The island was a province of Spain (the equivalent of State
under the United States forms of government). Puerto Ricans were full Spanish
citizens with the right to elect sixteen delegated and three senators to the
Spanish Cortes (equivalent to Congress).[7]
Shortly after the invasion in 1898,
General Miles proclaimed to the Puerto Rican population that the United States
would “promote the prosperity and bestow the immunities and blessings of the
United States enlightenment and liberal institutions and governments.”[8]
Sadly, the United States imposed a military regime that abolished all forms of
democratic representation in the local government. Despite these promises from
General Miles, the colonial powers negotiated the Treaty of Paris and enacted
Article IX without Puerto Rican participation or consent. Puerto Rico
inhabitants were stripped of their Spanish citizenship and rights and were
required to give allegiance to a new colonial overseer under whom they would be
without any rights except those that Congress, in which they had and have no
vote, chose to grant. One of the first
things done by the Military Government was to deny the inhabitants of Puerto
Rico the fundamental right of free speech. People who wrote against the
establishment of the military government, defending democracy, were persecuted
by the military, had their printing press burn, and were prosecuted in military
tribunals without a right of habeas corpus. One of the military orders
regarding free speech by General Guy V. Henry stated the following:
"This
General Government does not allow the publication of writings in which
reference is made to the Army of the United States or to the Military
Government, lest de extreme case such publicity can be justified with
CONCLUSIVE PROOF.[9]”
Is Article IX of the Treaty of Paris
unconstitutional? In Boumediene v. Bush[10]
Justice Kennedy stated, “the constitution has the power to acquire, dispose
of, and govern territory not the power to decide when and where its terms
apply.”
In Loughborough v. Blake[11] Chief Justice Marshall stated:
"Does
the United States designate the whole, or any particular portion of the
American empire? Certainly, this question can admit but one answer. It is the
name given to our great republic, which is composed of the states and the
territories. The District of Columbia, or the territory west of the Missouri,
is no less within the United States, than Maryland or Pennsylvania; and it is
not less necessary, on the principles of the constitution, that uniformity in
the imposition of imposts, duties, and excises, should be observed in one, than
in the other."
In Flemin v. Page[12] Chief Justice Taney stated:
"The country in question had been conquered in war. But
the genius and character of our institutions are peaceful, and the power to
declare war was not conferred upon Congress for the purposes of aggression or
aggrandizement, but to enable the general government to vindicate by arms, if
it should become necessary, its own rights and the rights of its citizens. A
war, therefore, declared by Congress, can never be presumed to be waged for the
purpose of conquest or the acquisition of territory; nor does the law declaring
the war imply an authority to the President to enlarge the limits of the United
States by subjugating the enemy's country. The United States, it is true, may
extend its boundaries by conquest or treaty, and may demand the cession of
territory as the condition of peace, in order to indemnify its citizens for the
injuries they have suffered, or to reimburse the government for the expenses of
the war. But this can be done only by the treaty-making power or the
legislative authority, and is not a part of the power conferred upon the
President by the declaration of war. His duty and his power are purely
military. As commander-in-chief, he is authorized to direct the movements of
the naval and military forces placed by law at his command, and to employ them
in the manner he may deem most effectual to harass and conquer and subdue the
enemy. He may invade the hostile country, and subject it to the sovereignty and
authority of the United States. But his conquests do not enlarge the boundaries
of this Union, nor extend the operation of our institutions and laws beyond the
limits before assigned to them by the legislative power."
In Scott v. Standford[13] Chief Justice Taney stated:
“There is certainly no power given
in 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, nor to enlarge its territorial limits in any way, except by
admission of new states… No power is given to acquire a Territory to be held
and governed in a permanently colonial character.”
The
Stanford Court went to rule that the Territorial Clause[14]
in Article IV of the Constitution was not applicable to territories after the
United States independence from Great Britain. Chief Justice Taney held that
the territorial clause was relevant to those lands held at the time of the
treaty with Great Britain in 1783[15] (Old
Northwest Territories)[16],
but did not apply to land acquire thereafter.
It
doesn’t take a rocket scientist to conclude that any treaty can’t trump the
Constitution by granting Congress powers that exceed those allowed by the
document.[17]
Unfortunately, the negotiation of the Treaty of Paris and the Insular Cases coincided with the end of
the progressive movement and the rise of imperialism in the United States.
Legally speaking, we can argue that the
Insular Cases during the Fuller Court caused great controversy in the legal
profession of the time, but they were left nearly forgotten, hidden in the
shadows of other controversial cases like: United
States v. E.C. Knight[18]
; Pollock v. Farmers’ Loan &Trust
Co.[19];
In Re Debs[20];
Plessy v. Ferguson[21];
Champion v. Ames[22]; Lochner v. New York.[23]
A similar composition of the Fuller Court in 1886 ruled, in Yick Wo v. Hopkins[24],
that the Fourteenth Amendment guaranteed equal rights “to all persons within
the territorial jurisdiction of the United States, without regard to any
differences of race, of color, or of NATIONALITY.”
In 1899, the Carroll Commission, appointed by President McKinley to investigate prevailing conditions in Puerto Rico, concluded that there should be “no hesitation in affirming that the people of Puerto Rico have good claims to be considered capable of self-government.”[25] The military governor of Puerto Rico at the time, General Davis, challenged the Commission recommendations stating that “the people of Puerto Rico generally have no conception of political rights combined with political responsibilities.”[26]Congress proceeded to enact the Foraker Act of 1900.[27] Congress accomplished with this act the following: create a colonial apparatus to replace the military regime, that had rule in Puerto Rico since its invasion, and raising money to fund this new administration.
The Foraker Act provided for the
establishment for a civil government composed of a presidential appointed
governor, a supreme court, and an upper legislative body, with a lower house
body elected by the Puerto Ricans. Established tax goods imported into Puerto
Rico from the mainland United States, the proceeds which would be used to fund
expenses of the new established government.[28]
Such tax was alleged to violate the uniformity provision of the taxing and
expenses clause of the Constitution. It was challenged as unconstitutional and
became part of what we know as the Insular
Cases.
Historian Rubin Francis Weston describes what actually happened in the political arena during the rise of imperialism in the beginning of the 20th century:
“Those who advocated overseas expansion faced this dilemma: what kind of
relationship would the new people have to the body politic? Was it to be the
relationship of the reconstruction period, an attempt at political equality for
dissimilar races, or was it to be the southern counterrevolutionary point of
view which denied the basic American constitutional rights to people of color?
The actions of the federal government during the imperial period and the
relegation of the negro to the status of second class citizenship indicate that
the southern point of view prevailed. The racism which caused the relegation of
the negro to a status of inferiority was to be applied to the overseas
possessions of United States.”[29]
American politician and German immigrant, Carl Schurz, stated the following:
“If
they become states on the equal footing with the other states… they will take
part in governing the whole republic, in governing us, by sending senators and
representatives in our Congress to help us make laws, and by voting for
president and vice-president to give our national government its executive. The
prospect of the consequences which will follow the admission of Spanish creoles
and the negroes of the West India islands and of the Malays and Tagals of the
Philippines to participation in the conduct of our government is so alarming
that you instinctively pause.”[30]
English journalist and novelist,
Rudyard Kipling, wrote the following:
“Take up the White Man’s burden
Send
forth the best ye breed
Go
bind your sons to exile
To
serve your captive’s need;
To
wait in heavy harness,
On
fluttered folk and wild
Your
new-caught, sullen peoples,
Half-devil
and half-child.”[31]
U.S. Senator R.F. Pettigrew stated:
“Under our flag you can not have a republic and an empire. You can not
have self-government and a government by force. One or the other will triumph.
Either the republic will go down and the empire will survive, or we will at
once retrace our steps to the ground and anchor our ship of state to the
declaration and to the doctrine that all governments derive their just powers
from the consent of the governed.[32]”
Puerto Rico status has not changed over this period, nor has that of its citizens. Just five years after Puerto Ricans were granted U.S. citizenship in the United States when Congress passed the Jones Act[33], Supreme Court ruled, by opinion of Chief Justice Taft, in Balzac v. Porto Rico[34] that the granting of United States citizenship meant for Puerto Ricans that they could move to the Mainland and there exercise full right as citizens, but that they were not entitled to the full rights of the United States citizens while residing in Puerto Rico, such in the Balzac case, the right to trial by jury.
Recently Puerto Rico was struck by two hurricanes. The last one, Hurricane Maria destroy the island entire electric grid. Puerto Rico, before the passing of Hurricane Maria, was starting to feel some of the austerity measures imposed by the Oversight Board over the local government of Puerto Rico. Congress is currently discussing a legislative measure[35] for aid to Texas, Florida and Puerto Rico, the crucial difference is that the Puerto Rican government will currently get it as a loan, not as a grant like Texas and Florida. Puerto Ricans are American citizens, they do not need to hope that in the future the loan will be condoned. Wall Street doesn’t have the right to get rich in a humanitarian crisis. We deserve a grant. As American citizens, we deserve justice.[36]
[1] 136 S.Ct. 1863 (2016)
[2] 136 S.Ct. 1938 (2016)
[3] (Pub.L. 114-187,
§ 2, June 30, 2016, 130 Stat. 550.)
[4] See Neely v.
Henkel, 180 U.S. 109 (1901); De Lima v. Bidwell, 180 U.S. 109
(1901); Goetze v. United States, 182 U.S. 221 (1901); Crossman v.
United States, 182 U.S. 221 (1901);
Dooley
v. United States, 181
U.S. 222 (1901) {Dooley 1}; Armstrong v. United States, 182 U.S. 243;
Downes v. Bidwell, 182 U.S. 244 (1901);
Huus
v. New York and Porto Rico S.S. Co., 182 U.S. 392 (1901); Dooley v. United States, 183 U.S. 51 (1901) {Dooley 2. Chief
Justice Fuller dissenting opinion in this case gives us a perspective on how
the Insular Cases and imperialism politics where in the center of important
political matters of the time like the Rise and Fall of Economic Due Process or
Economic Conservatism}; Fourteen Diamond
Rings v. United States, 183 U.S. 176 (1901); Gonzalez v. Williams, 192 U.S. 1 (1903).
[5] U.N. Charter art
73 (e). “Members of the United Nations which have or assume responsibilities
for the administration of the territories whose peoples have not yet attained a
full measure of self-government recognize the principle that the interest of
the inhabitants of these territories are paramount, and accept as sacred trust
the obligation to promote to the outmost, within the system of international
peace and security established by the present Charter, the well-being of the
inhabitants of these territories, and, to this end: … e… transmit regularly to
the Secretary-General for informational purposes, subject to such limitation as
security and constitutional considerations may require, statistical and other
information of a technical nature relating to the economic, social, and
educational conditions in the territories for which they are respectively
responsible other than those territories to which Chapter XII and XIII apply.”
[6] Compare the
Treaty of Paris of 1898 article IX with the following prior treaties: 1) Treaty
between U.S. and France for the cession of Louisiana (1803) article III; 2) Treaty
between U.S. and Spain for the cession of Florida (1819) article VI; 3)
Guadalupe Hidalgo: Treaty between U.S. and Mexico, article XI; 4) Alaska
Purchase: Treaty between U.S. and Russia for the cession of Alaska (1867),
article III. One year later in 1899 Hawaii was formally admitted to the United
States as an incorporated territory consistent with the prior tradition of
territorial expansion in American Legal History. The difference of this type of
territory with Puerto Rico non-incorporated status is that with the first no
matter how many years you are a territory it’s with the purpose of future
admission as a state with full rights as the other citizens of the United
States. Our status is not for future state admission, making us subject to
constant discrimination by Congress in the distribution of federal funds. In Ponce v. Roman Catholic Church of Porto Rico
210 U.S. 296 (1908), the US Supreme Court agreed to support the "legal and
political institutions" of Puerto Rico as specified in the terms of the
Treaty of Paris, even though the use of public funds in support of the Catholic
Church might seem to violate the Establishment Clause. Puerto Rico before the
change in sovereignty didn't have separation of Church and State. Church was
part of the political institutions of Puerto Rico. HOWEVER, in earlier cases
adjudicating disputes over Mexican land grants in the American Southwest, the
US Supreme Court felt no compunction to honor particular provisions spelled out
in the Treaty of Guadalupe Hidalgo of 1848. The Treaty of Guadalupe Hidalgo of
1848 gave citizenship to the members of the territory as did the other treaty
precedents before the Treaty of Paris. For a comparison of the Treaty of Paris
with other treaties precedents like Article III of the 1867 Treaty with Russia
see Rassmussen v. United States, 197
U.S. 516 (1905).
[7] See Jose Trías
Monge, Puerto Rico: The trials of the
oldest colony in the world (1997).
[8] Annual Report of
the Maj. General Commanding of the Army, Nelson A. Miles, Nov. 5, 1898,
Messages, 1898-1899, at 31-32.
[9] United
States Department of War. General Orders and Circulations, 1898-1900. 3 vols.
Department of PR, (1900).
[10] 553 U.S. 723
(2008). Compare the case with Missouri v.
Holland, 252 U.S. 416 (1920) and Medellin
v. Texas, 352 U.S. 491 (2008).
[11] 18 U.S. 317 (1820); See also Cross v. Harrison, 57 U.S.
164 (1853).
[12] 50 U.S. 602
(1851)
[13] 60 U.S. 393
(1857)
[14] “The Congress
should have the power to dispose of and make all the needful rules and
regulations respecting the territory or other property belonging to the United
States; and nothing to this Constitution shall be so construed as to prejudice
any States; or any particular states.” U.S. Const. art. IV, section 3.
[15] Treaty of Peace
Between the United States of America and His Britannic Majesty, U.S.- Gr.
Brit., Sept. 3, 1783, 8 Stat. 80.
[16] Northwest
Ordinance of 1787, 1 Stat. 50,51 (1789).
[17] See 95 NW. U. L.
Rev. 581 (2000-2001) The Hobbesian
Constitution: Governing without Authority. The Founding Fathers rejected
the social contract theory adopted by Hobbes (human nature was evil, thus it
was necessary for the state to reach a social contract having total control of
its subject, granting security, the most important thing) adopting John Locke’s
social theory contract.
[18] 156 U.S. 1 (1895)
Sugar Trust Case.
[19] 157 U.S. 329 (1895)
Income Tax Case.
[20] 158 U.S. 564
(1895).
[21] 163 U.S. 537
(1896) Racial Segregation upheld under the doctrine Separate but Equal.
[22] 188 U.S. 321
(1903) Lottery Case.
[23] 198 U.S. 45
(1905).
[24] 118 U.S. 356 (1886).
[25] Henry K. Carroll,
Report on the Island of Puerto Rico, Special Commission for the United States
on Puerto Rico
[26] George W. Davis,
Report of the Military Governor of Porto Rico on Civil Affairs, Vol. 1, Pt. 13,
Annual Reports of the War Department, 1900, U.S. Government Printing Office
19-20 (1900).
[27] Foraker Act
(Puerto Rico) chap. 191, 31 Stat. 77.
[28] With the Foraker
Act, U.S. government in Puerto Rico established a civil government. 5 members
of the Upper Body of the Legislature were Americans and also were the head of
departments of the Executive. How can a public official hold office in both the
Legislature and the Executive? With this “civil government” the Puerto Ricans
were denied of having a government consistent with the doctrine of separation
of powers. For more information on territorial forms of government in American
Legal History see: Gary Lawson and Guy Seidman, The Constitution of Empire: Territorial Expansion in American Legal
History, Part II. Governing Territory,
Yale University Press, p. 121-151.
[29] Rubin Francis
Weston, Racism in U.S. Imperialism: The
influence of Racial Assumptions on American Foreign Policy, 1893-1946, at
15 (1972).
[30] Carl Schurz, American Imperialism, (1899).
[31] Rudyard Kipling, The White Man’s Burden, (1899).
[32] Senator R. F.
Pettigrew, The Course of the Empire,
(1921).
[33] Jones Act (Puerto
Rico), ch. 145, section 2, 39 Stat. 951-952 (1917); In the House of
Representatives of the United States, Resident Commissioner of Puerto Rico Don.
Luis Muñoz Rivera, brilliantly argue in Congress in favor of the Puerto Rican
citizenship. Congress was planning, as they ultimately did, impose a second
degree of citizenship to the inhabitants of Puerto Rico. For the complete
speech See Congressional Record, 64th Congress, 1 Session, Vol. 53
part. 8, 7470-7473; More than 15 times, between 1900-1915 the lower court of Puerto
Rico (the only one represented at the time by the direct vote of the people),
begged for citizenship and addition to the United States as a state. In 1917,
when we were tired of begging, they then decided to impose us a second-degree
citizenship. See Juan R. Torruella, The
Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal, (1985).
[34] 258 U.S. 298
(1922). The theory of Non-Incorporation, created by Justice White concurrent
opinion in Downes v. Bidwell, became
a doctrine establish by the majority of Supreme Court in Balzac. For example, 8 of the 10 Supreme Court's decisions
regarding the Insular Cases during the Fuller Court term of 1901 were split
decisions 5-4. A majority on the Court fully upheld the government 3 times
(Downes v. Bidwell; Dooley v. United States II; Neely v. Henkel). Not a single
judge position had the support of even 5 judges on the bench after the 1901
term (not Brown's extension theory, not White Incorporation Doctrine, and not Fuller
and Harland's doctrine of the Constitution applying ex-propio vigore).
[36] "The signers
of the Declaration of Independence of the United States said on July 4, 1776,
that they held "these truths to be self-evident, that all men are created
equal; that they are endowed by their Creator with certain inalienable rights;
that among them are life, liberty and the pursuit of happiness;" and they
added that " to secure these rights governments are instituted," and
that these governments only derive "their just powers FROM the consent of
the governed." The Puerto Rican people, in asking from the people to whom
they have been aggregated that the principles of the first enactment to be
found in their statute books be applied to them, are not looking for favors.
THEY ARE DEMANDING JUSTICE" Puerto Rico League of Patriots, The Case of Porto Rico, (1899).
