Glory Flag

Is Puerto Rico 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 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 China. 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 power to govern each annexed territory in particular ways without being bound by 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 give itself a plenary power 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, while in 1901 the Supreme Court began to affirm the emerging insular or territorial law and policy in a series of rulings known as the Insular Cases, it 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” to define the constitutional contours for the governance of the island.

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 the Supreme Court has issued rulings that treat unincorporated territories as foreign possessions located outside of the United States. Under the Supreme Court’s interpretation doctrine of territorial incorporation, Puerto Rico is located outside of the United States for constitutional interests more generally and for citizenship purposes more specifically. In contrast, for more than a century, Congress has interpreted the doctrine of territorial incorporation as an affirmation of its plenary power over the territories 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 have created a difficult conundrum. 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, but also has 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 purposes of extending 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 Department of War established a military dictatorship tasked with preparing Puerto Rican for U.S. colonization. Specifically, local military governors were tasked with identifying which prevailing public or government institutions to eliminate or retain, as well as with creating institutions that could be used to govern the Puerto Rico within the new territorial tradition. The Department of War governed Puerto Rico 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 did not contain a clause providing for the collective naturalization of Puerto Rico or 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. The Spanish monarchy and the U.S. Senate subsequently ratified the treaty by 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 this organic act gave Congress a plenary or absolute power to rule Puerto Rico. 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” (S. Rept. 56-249, 6). Stated differently, Congress actors believed that they possessed an absolute or plenary power to determine when and how to extend or withhold constitutional provisions, not locally inapplicable (i.e. Electoral College), to Puerto Rico. Frederic R. Coudert, the key attorney in the Insular Cases, later described this interpretation as the “extension theory,” or the theory that Congress possessed a plenary power under the Territories Clause (U.S. Const. Art. IV, §3, cl. 2) to extend or withhold constitutional provisions to the territories. Since then, and when convenient, Congress has enacted legislation selectively treating Puerto Rico as a part of the United States 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 doctrine or body of laws designed to govern the territories annexed during the Spanish-American War of 1898, territories primarily inhabited by non-White-Anglo-Saxon or “alien races.” The core arguments of the ensuing doctrine of territorial incorporation 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 of the justices affirmed the power of Congress to impose a discriminatory tariff on goods imported from Puerto Rico. The Court affirmed the plenary 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 for the ruling. The opinions echoed or amplified the 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 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. More importantly, 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 in the United States and Congress was bound to the requirements of the Uniformity Clause. According to this interpretation, Puerto Rico, like other previously annexed territories, was a part of the United States and Congress was bound to 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 echoed similar Senate ratification debates of the Treaty of Paris and later the congressional debates over the Foraker Act. 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 power 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 govern the island as a foreign country for domestic or constitutional purposes. To be sure, while the annexation of Puerto Rico made the island 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, Puerto Rico could be governed as a foreign territorial possession located outside of the United States for domestic or constitutional purposes.

Empire’s Ambiguities

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 laws and policies created by Congress under the extension theory. 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 governed 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. More importantly, some constitutional scholars argue that only the Supreme Court can establish whether the Citizenship Clause of the Fourteenth Amendment is applicable to Puerto Rico.

However, for more than a century, Congress has embraced a parallel interpretation of both the status of Puerto Rico and its power to extend or withhold constitutional provisions to the unincorporated territory. Historically, Congress has enacted legislation selectively treating Puerto Rico as an incorporated territory or a part of the United States. Although Congress has refused to incorporate Puerto Rico, it has progressively enacted legislation extending an array of constitutional provisions not locally inapplicable. In the case of citizenship, over time Congress has enacted citizenship legislation conferring jus soli or birthright citizenship to Puerto Rico that is anchored on the Citizenship Clause of the Fourteenth Amendment. Today, for citizenship purposes, birth in Puerto Rico is tantamount to birth in the United States. In sum, while the Supreme Court has established that Puerto Rico, an unincorporated territory, is a foreign territorial possession for domestic or constitutional purposes, Congress has enacted citizenship legislation treating the Puerto Rico as a territorial part of the United States.