The Forgotten Empire: Does the United States practice what it preaches?

       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].

       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 20^th 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]

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[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, 64^th 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).

[35] https://theintercept.com/2017/10/11/puerto-rico-relief-bill-cancels-16-billion-in-debt-but-not-for-puerto-rico/

[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).