Territorial Status
Territory belonging to the United States,
as I think Puerto Rico and the Philippine
Archipelago do,becomes a part of the
United States in the international sense,
while not being a part of the United States
in the constitutional sense.
Senator John C. Spooner (R-WI), arguing
in defense of the Foraker Act of 1900
Is Puerto Rico a part of or located in the United States? This is the core constitutional question defining the citizenship status of persons born in Puerto Rico. If Puerto Rico is a part of or located within the United States, then persons born or naturalized in Puerto Rico acquire the citizenship status afforded to persons born or naturalized in the United States. However, if Puerto Rico is not located in the United States, then birth in Puerto Rico is tantamount to birth in Italy or Russia. At the time of this writing, the prevailing interpretation among academics is that Puerto Rico is located outside of the United States for citizenship purposes and for constitutional purposes more generally. Thus, whilst Puerto Rico belongs to the United States, it is a foreign territory for domestic or constitutional purposes, or so the prevailing academic interpretations argue.
Between 1898 and 1901 the United States invented a new territorial law and policy to govern the territories annexed in the aftermath of the Spanish-American War. The new territorial law and policy was initially proposed by the U.S. War Department and sought to give the military a flexible power to govern each annexed territory in unique ways without binding the federal government to past or contemporary constitutional precedents. In 1900, with the enactment of the Foraker Act, Congress began to normalize the military’s proposed insular or territorial policies. Congress used this legislation to grant itself plenary powers to selectively govern annexed territories as foreign possessions in a domestic or constitutional sense and to choose when and how to extend or withhold constitutional provisions to the U.S. territories. This interpretation of Congress’ plenary powers over U.S. territories is generally known as the doctrine of extension. However, in 1901 the Supreme Court began to affirm a tempered interpretation of the emerging insular or territorial law and policy in a series of rulings known as the Insular Cases. The Court also sought to affirm its power to become the final interpreter of Congress’ constitutional power over U.S. territories. Since then, the Court has described Puerto Rico as an “unincorporated territory” and has established a body of law known as the “doctrine of territorial incorporation” or “the doctrine of separate and unequal” to define the constitutional contours of the federal government’s power to rule the Puerto Rican islands.
Part of the challenge created by the invention of the doctrine of territorial incorporation is that the Court and Congress have developed parallel interpretations of their powers and the status of Puerto Rico within the nascent U.S. global empire. To be sure, over the years, exercising its power of judicial review, the Supreme Court has issued rulings that treat annexed unincorporated territories as foreign possessions located outside of the United States for domestic or constitutional purposes. Under the Supreme Court’s interpretation of the doctrine of territorial incorporation, Puerto Rico is located outside of the United States for citizenship purposes and for constitutional purposes more generally. In contrast, for more than a century, Congress has interpreted the doctrine of territorial incorporation as an affirmation of its enumerated power to rule territories and to determine when and how Puerto Rico can be treated as a part of the United States for constitutional interests and citizenship purposes.
These parallel interpretations and policies coexist in an antinomic relationship, sometimes in harmony and sometimes in contradiction. On the one hand, the Supreme Court has reserved a power to determine when Puerto Rico is a part of the United States for citizenship purposes, and simultaneously refused to clarify the citizenship status of persons born in Puerto Rico. In contrast, throughout the past century Congress has enacted legislation gradually treating Puerto Rico as a part of the United States for citizenship purposes. In other words, while the Supreme Court continues to describe Puerto Rico as an unincorporated territory that is foreign in a domestic sense for citizenship purposes, Congress has enacted legislation selectively treating Puerto Rico as a part of the United States for the sole purpose of extending jus soli or birthright citizenship to the island.
Defining Puerto Rico’s Territorial Status
The United States annexed Puerto Rico during the Spanish-American War of 1898. General Nelson A. Miles occupied Puerto Rico on 25 July 1898. Soon after, the U.S. government began diplomatic negotiations with the Spanish monarchy over a series of protocols to establish the terms for a peaceful resolution to the war. Simultaneously, and following the cessation of hostilities, the War Department established a military dictatorship tasked with preparing Puerto Rico for U.S. colonization. Specifically, local military governors were tasked with identifying which prevailing public or government institutions to eliminate and which to retain, as well as with creating institutions that could be developed to govern Puerto Rico. The War Department sought to govern Puerto Rico as a British-styled dependency with military governors for two-years or until 1900, when Congress enacted legislation providing for a civil government for the island.
On 10 December 1898, Spain and the United States signed the Treaty of Paris, which outlined the terms of Puerto Rico’s annexation. Unlike prior treaties of territorial annexation, the Treaty of Paris of 1898 did not contain a clause providing for the collective naturalization of Puerto Rico or one promising to do so in the future. Instead, Article IX contained two clauses defining the citizenship status of the inhabitants of Puerto Rico. As I will explain in the next chapter, the first clause invented a non-citizen nationality to govern Puerto Ricans. In addition, the second clause established that “(t)he civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress” (30 Stat. 1754, 1759). The intent of this clause was to grant Congress the power to subsequently choose which constitutional provisions to extend or withhold to the newly annexed territories. At the time, the McKinley administration sought to pass on to Congress the responsibility over the future status of the islands’ inhabitants (56th Cong., S.Doc. 148). The Spanish monarchy and the U.S. Senate subsequently ratified the treaty on 11 April 1899.
On 19 April 1900, Congress enacted the Foraker Act, an organic or territorial law providing for the replacement of the military dictatorship with a civil government. Central to the Foraker Act was the imposition of a tariff or duty on goods and merchandize trafficked between the island and the mainland. As Senator Spooner noted, this tariff selectively treated Puerto Rico, an annexed territory, as a part of the United States for international interests and as a foreign country for constitutional purposes. The Foraker Act permitted Congress to selectively rule Puerto Rico as a territorial possession located outside of the United States for tariff and constitutional purposes more generally.
It is important to emphasize that Senator Joseph B. Foraker (R-OH), the main author of the Foraker Act, believed that the Constitution gave Congress the authority to rule Puerto Rico through organic or territorial acts. More precisely, in the accompanying report describing the intent of the Foraker Act, Senator Foraker explained that this organic act established Congress’ plenary power “to either extend or withhold the Constitution in all such cases, as it may deem advisable” (56th Cong., S. Rept. 249, 6). Stated differently, congressional actors believed that they possessed a power, limited by the Constitution, to determine when and how to extend or withhold constitutional provisions, not locally inapplicable (i.e., Electoral College), to Puerto Rico. Since then, and when convenient, Congress has enacted legislation selectively treating Puerto Rico as a foreign territorial possession of the United States, or sometimes as a part of the U.S. for constitutional purposes.
Soon after, in a series of rulings generally known as the Insular Cases, the Supreme Court began to affirm the new territorial law and policy. The Court not only affirmed a new territorial expansionist law and policy, but also began to craft a new territorial status that enabled the federal government to selectively rule territories as foreign possessions for domestic or constitutional purposes. The core arguments of the ensuing “doctrine of territorial incorporation” or “doctrine of separate and unequal” were first outlined in the concurring opinion of Justice Edward D. White in Downes v. Bidwell (1901). By 1904, a majority of Supreme Court justices embraced Justice White’s territorial rationale.
In Downes, the Court was asked to rule on the constitutionality of the Foraker Act’s tariff on merchandize imported to the mainland from Puerto Rico. More precisely, the Court was asked to determine if Section 3 of the Foraker Act violated the Uniformity Clause of the Constitution (Art. 1, §8, cl. 1), a clause that barred the imposition of unequal tariffs, duties, and other taxes on merchandized trafficked within the United States. A plural majority (5-4) of the justices affirmed the power of Congress to impose a discriminatory tariff on goods imported from Puerto Rico. The Court affirmed the power of Congress to selectively situate Puerto Rico outside of the United States for constitutional purposes. However, while a majority of five justices agreed on the outcome of the case, the justices were unable to agree on a rationale or justification for the ruling. In fact, eight justices rejected rationale used by Justice Henry B. Brown in his majority opinion. The opinions echoed or amplified the three expansionist debates of the period.
Judge Henry B. Brown, the author of the infamous Plessy v. Ferguson (1896), wrote the majority opinion in Downes. Justice Brown’s opinion embraced the prevailing imperialist interpretation of U.S. territorial expansionism. More specifically, Justice Brown argued that the constitutional definition of the “United States” was limited to states and did not include territories. It followed that for constitutional purposes, Puerto Rico was not located in or was a part of the United States. To this extent, Congress’ wielded a power to enact discriminatory legislation for Puerto Rico without being bound to the limitations placed by the Constitution. Justice Brown’s interpretation also affirmed the so-called “extension theory” or the idea that Congress possessed a plenary power to extend or withhold constitutional provisions. In sum, Justice Brown argued that Congress could enact legislation treating Puerto Rico as a foreign territorial possession and this legislation need not be anchored or grounded on or limited by the Constitution.
Although two dissenting opinions were written, the four dissenting justices signed Chief Justice Melville W. Fuller’s opinion. In contrast to the majority, the dissenting justices amplified the prevailing anti-imperialist or colonialist interpretation. Drawing on the relevant legal precedents or past Court rulings on questions arising from the prior acquisition of territories, the dissenting justices argued that annexed territories became a part of the United States for constitutional purposes. Once annexed, the Constitution applied ex propio vigore or on its own force in Puerto Rico. It followed that the Foraker Act tariff was unconstitutional because Puerto Rico was located within the United States. According to this interpretation, Puerto Rico, like other previously annexed territories, was a part of the United States and Congress was bound by the Constitution when enacting legislation for the island.
Two concurring opinions signed by four justices were also submitted in Downes. However, Justice White’s concurring opinion was subsequently embraced by a majority of the Court and provided the core arguments for the ensuing doctrine of territorial incorporation, the doctrine that has in large measure guided U.S. territorial law and policy since. Legal scholars generally agree that Justice White’s argument embraced Abbott Lawrence Lowell’s so called “Third View” interpretation of the territorial status of Puerto Rico and the other annexed Spanish territories. Lowell’s argument was written as a response to a series of academic debates between anti-imperialists/colonialists and imperialists printed in the pages of the Harvard Law Review in 1899. The academic debates also echoed similar Senate ratification debates of the Treaty of Paris and later the congressional debates over the Foraker Act. While it is not clear what was the original source of the so-called doctrine of territorial incorporation, it should be clear that the Supreme Court affirmed a tempered territorial theory that was being debated by academics and law and policy makers alike.
Justice White began by establishing that Congress was a creature of the Constitution, and all of its powers were derived from the text. Likewise, fundamental constitutional provisions not locally inapplicable were operative in Puerto Rico. To this extent, the Constitution was both Congress’ source of powers and limitations.
In terms of the island’s territorial status, Justice White used the latter interpretation to argue that Puerto Rico could be governed as a “foreign” territorial possession in a domestic or constitutional sense. According to Justice White, whilst Puerto Rico became a part of the United States for international purposes, Congress could selectively govern the Puerto Rican islands as a foreign country for domestic or constitutional purposes. To be sure, while the annexation of Puerto Rico made the islands a possession belonging to the United States, the Foraker Act did not incorporate or make the island a part of the Union for Constitutional purposes. Justice White concluded that Puerto Rico remained an unincorporated territory until Congress enacted legislation expressly or implicitly incorporating the island. Until incorporated, the ensuing doctrine of territorial incorporation established, that Puerto Rico could be governed as a foreign territorial possession selectively located outside of the United States for domestic or constitutional purposes.
Empire’s Antinomies
Debates over the status of Puerto Rican-born U.S. citizens are presently contingent on the unresolved tension between the prevailing interpretations of the Supreme Court’s doctrine of territorial incorporation and the citizenship laws and policies created by Congress under the extension theory since 1898. To be sure, while the Supreme Court has refused to clarify the status of U.S. citizens born in Puerto Rico, it has simultaneously continued to affirm the doctrine of territorial incorporation. Under prevailing interpretations, unincorporated territories can be ruled as foreign possessions or localities until either Congress, or the Supreme Court expressly incorporates the territory. Stated differently, it is possible to argue that because Puerto Rico has not been incorporated, it remains a foreign territorial possession in a domestic or constitutional sense. Because Puerto Rico is located outside of the United States, some academics, legal scholars, and political actors claim that the birthright or jus soli clause of the Constitution (U.S. Const. 14th Amend, cl. 1) is not applicable to Puerto Rico.
However, for more than a century, Congress has invoked its enumerated powers to rule territories (U.S. Const. Art. IV, §3) under the Constitution to legitimate the extension of antinomic or contradictory legislation, including citizenship statutes to Puerto Rico. Historically Congress enacted legislation extending or withholding constitutional provisions to the Puerto Rican islands. Likewise, Congress has enacted a wide array of laws that selectively situate Puerto Rico inside, outside, and/or elsewhere in the United States without ever incorporating or changing Puerto Rico’s territorial status. In the area of citizenship, Congress has enacted legislation treating persons born in the Puerto Rican islands as non-citizen nationals or Puerto Rican citizens (born elsewhere), naturalized citizens (born outside), and more recently as birthright or jus soli citizens (born inside).
As I will explain in the pages that follow, part of the challenge of understanding the citizenship status of persons born in Puerto Rico is that both the Supreme Court, exercising its powers of judicial review, and Congress, exercising its enumerated powers to rule territories, have at times taken postures that operate in harmony and at times in dialectical opposition. Simply put, the Supreme Court has declared that Puerto Rico is outside of the United States and Congress has enacted citizenship legislation treating Puerto Rico as a part of and located within the United States. It the pages that follow, I will try to disentangle or at least shed some light on the resulting historical contradictions shaped by this antinomic territorial law and policy.
Cited and Suggested Sources:
Primary Sources
Downes v. Bidwell, 182 U.S. 244 (1901).
Foraker Act of 1900, ch. 191, 31 Stat. 77 (1900).
Plessy v. Ferguson, 163 U.S. 537 (1896).
Treaty of Paris of 1898. 30 Stat. 1754 (1899).
United States Congress. House of Representatives. Annual Reports of the War Department for the Fiscal Year Ended June 30, 1900, Part 13: Report of the Military Governor of Porto Rico on Civil Affairs, 56th Cong., 2d sess., 1902, H. Doc. 2, Part 13.
United States Congress. Senate. Senate Committee on Pacific Islands and Porto Rico, Temporary Civil Government for Porto Rico, 56th Cong., 1st Sess. 1900, S. Rep. 249.
United States Congress. Senate. Papers Relating to the Treaty with Spain, 56th Cong. 2d Sess. 1901, S. Doc. 148.
Secondary Sources
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Burgess, John W. “How May the United States Govern its Extra-Continental Territory,” Political Science Quarterly, 14 (1) (1899): 1-18.
Coudert, Frederic R. “The Evolution of the Doctrine of Territorial Incorporation,” 26 Colum, L. Rev. 823 (1926).
Duffy Burnett, Christina, and Burke Marshall, Eds. Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution. Durham: Duke University Press, 2001.
Farrand, Max. The Legislation of Congress for the Government of the Organized Territories of the United States, 1789-1895. Newark: Wm. A. Baker, 1896.
Gould, Lyman J. La ley Foraker, raíces de las política colonial de los Estados Unidos. Río Piedras: Editorial U.P.R., 1969.
Grupo de Investigadores Puertorriqueños. Breakthrough From Colonialism: An Interdisciplinary Study of Statehood. 2 vols. Río Piedras: Editorial de la Universidad de Puerto Rico, 1984.
LaFeber, Walter. “The ‘Lion in the Path’: The U.S. Emergence as a World Power,” Political Science Quarterly, 101(5) (1986): 705-718.
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López Baralt, José. “Is the Paris Treaty “Null Ab Initio” as to the Cession of Puerto Rico?” 7 Rev. Jur. U.P.R. 75 (1938).
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_____. “The Colonial Expansion of the United States,” The Atlantic Monthly, 83 (496) (1899): 144-154.
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Torruella, Juan R. The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal. Río Piedras: Editorial de la Universidad de Puerto Rico, 1988.
_____. Global Intrigues: The Era of the Spanish-American War and the Rise of the United States to World Power. Río Piedras: La Editorial, 2007.
Trask, David F. The War With Spain in 1898. Lincoln: University of Nebraska Press, 1981.
Trías Monge, José. Historia constitucional de Puerto Rico. 5 vols. Río Piedras: Editorial Universitaria, 1994.
_____. El choque de dos culturas juridicas en Puerto Rico, el caso de la responsabilidad civil extracontractual. Austin: Equity Publishing Company, 1991.
_____. Puerto Rico, The Trials of the Oldest Colony in the World. New Haven: Yale University Press, 1997.
Venator-Santiago, Charles R. Puerto Rico and the Origins of U.S. Global Empire: The Disembodied Shade. London: Routledge, 2015.
Weston, Rubin Francis. Racism in U.S. Imperialism, The Influence of Racial Assumption on American Foreign Policy, 1893-1946. Columbia: University of South Carolina Pres, 1972.
Willoughby, William F. Territories and Dependencies of the United States, Their Government and Administration. New York: The Century Co., 1905.