In another post, J.H. and I had an interesting discussion about Puerto Rico’s political status. Is it a colony in which the U.S. constitution does not apply — what American law calls an “unincorporated territory”? Or is it an old-fashioned territory, like Alaska and Hawaii before 1959 or Arizona and New Mexico before 1912?
I am going to argue that Puerto Rico is in fact a de facto incorporated territory, just like the area covered by the Northwest Ordinance or Colorado before 1876. Sure, Congress could pass an organic act and declare the Commonwealth to be an old-fashioned territorial government, but that would change nothing.
Some history: the United States annexed Puerto Rico along with the Philippines in 1898. For purely racial reasons, there was zero support for taking over the Philippines as an ordinary territory, thereby bringing 7 million “Malays” into the American polity. Congress therefore created a special colonial status for the Philippines, under which the U.S. government would exercise sovereignty but within which the U.S. Constitution would not apply. That status was extended to Puerto Rico (essentially by default) and the Supreme Court ratified it in the infamous insular cases, which ruled that Puerto Rico was “foreign in a domestic sense.”
After 1898, however, Congress and the Supreme Court slowly but surely extended the Constitution to the island. In 1917, Puerto Ricans became American citizens. In 1947, Congress extended Article IV, Section 2 of the Constitution to the island. In 1952, it went further, declaring that anyone born in Puerto Rico (regardless of parental citizenship) would be a citizen. The Supreme Court then extended the First, Fourth, Fifth, Eleventh and Fourteenth amendment to the territory; extending the latter brought along the Sixth and Eighth amendments with it.
The Seventh Amendment, which guarantees a jury trial in civil cases, does not apply to Puerto Rico. But it does not apply to any state, either: in 1877, in Pearson v Yewdall, the Supreme Court held that the 14th Amendment does not impose the Seventh upon the states.
What about criminal law? Didn’t the Supreme Court recently rule that someone could not be tried separately in federal and Puerto Rican courts? Well, yes it did, but the logic of 2016’s Puerto Rico v. Sanchez Valle stated only that Puerto Rico was not a state, sovereign under the 11th Amendment. Rather, it was a creation of Congress. But that gives Puerto Rico the same status as any pre-1959 territorial government; nothing in the reasoning derives from Puerto Rico’s original colonial status.
Puerto Rico is indeed treated differently in terms of federal funding — a big part of the recent crisis is in fact due to Congress’s decision to fund Medicaid at a far lower rate on the island. But is that because Puerto Rico is unincorporated? No: Alaska was similarly shortchanged for federal highway money before statehood.
That leaves the income tax exemption. (Alaskans paid income taxes before statehood; the District of Alaska was incorporated in 1912, around the time of the 16th Amendment.) It seems fair that Puerto Ricans don’t pay those taxes on the basis of “no taxation without representation,” but the courts haven’t held that. Rather, they don’t pay because of 48 U.S. Code § 734. In other words, Congress exempted the island in 1917. Could it have done that with an incorporated territory? I have no idea and I would love to have a lawyer weigh in ... but I suspect that the answer is yes. After all, nobody doubts the constitutionality of the Empowerment Zones, which provide tax exemptions for investors and businesses that set up shop inside them.
Finally, what about citizenship? Reader J.H. worries that Congress might strip Puerto Ricans of their citizenship should it so choose. (Or, more realistically, should Puerto Ricans vote for independence.) That, however, seems unlikely. The courts have defined Puerto Ricans as natural-born American citizens. It is extremely hard to strip a natural-born American of their citizenship. The courts have ruled that taking out a foreign nationality will not do it; hell, not even serving in the armed forces of another state will do it. (My uncle Eddie served in the IDF; he kept his citizenship.) The law now recognizes the SCOTUS decisions. Note the italics: “A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality.”
That is, of course, only a law. It could be changed, but the change would only apply to naturalized citizens (maybe): the courts have been clear that the 14th Amendment protects natural-born citizens unless they explicitly declare that they intend to renounce their citizenship.
There is a peculiar court decision from 2008 that argues that Puerto Rico has effectively become an incorporated territory. Consejo de Salud Playa de Ponce V. Rullan concluded, “Actions speak louder than words. Although Congress has never enacted any affirmative language such as ‘Puerto Rico is hereby an incorporated territory,’ its sequence of legislative actions from 1900 to present has in fact incorporated the territory.”
No other courts have cited this ruling, but the logic seems to hold: Congress could pass an organic act incorporating Puerto Rico tomorrow, and it is not clear that anything would change.
(Statehood, of course, is an entirely different thing.)
To conclude, I am honestly not sure that Puerto Rico’s “unincorporated” status amounts to anything. I suspect that it doesn’t.
ADDENDUM: This piece in the The Atlantic came to my attention after I wrote the above. It is accurate in the particulars but misses the point: SCOTUS ruled against Puerto Rico on the grounds that it has no independent sovereignty, just like Alaska or Arizona or Minnesota or anywhere else before they became states. The insular cases have nothing to do with it!
(Note: Some states were sovereign before statehood: the Thirteen Colonies, Texas, and maybe if-you-squint Vermont. Hawaii was sovereign but lost it in 1898, 61 years before it became a state.)