Confronting the unfair limitations of civil rights in Puerto Rico

The United States Commission on Civil Rights is an independent, bipartisan agency established by Congress, charged with studying and collecting information related to discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, disability, national origin or in the administration of justice. In line with the Federal Advisory Committee Act, the commission recently established advisory committees in the U.S. Territories, and the Puerto Rico Advisory Committee was established in 2022. The advisory committee, which I chair, is composed of 12 members who, freely and voluntarily, represent as a body the broad political spectrum that characterizes Puerto Rican politics, not limited to their identification with the national political parties.

Throughout 2022, the advisory committee has held multiple public meetings to discuss the civil right issues that affect the residents of Puerto Rico. Upon deliberation by members of the committee it agreed, unanimously, that the underlying and fundamental issue which impinges on civil right matters in the island is its current political arrangement with the United States. 

Puerto Rico was ceded to the United States by Spain in the Treaty of Paris of 1898. Article IX of the treaty states that the civil rights and political status of the natural inhabitants of the territories hereby ceded to the United States shall be determined by Congress. Throughout the early 20th century the Supreme Court articulated in several cases, starting with the infamous Downes v. Bidwell (1900), the doctrine of unincorporated territories, possessions belonging to but are not part of the United States, in the segregationist language of one its cases. These cases, referred collectively as the Insular Cases, have allowed for theselective application of constitutional rights its inhabitants, today citizens of the United States. This doctrine was, and is applied to this day to Puerto Rico, Guam, United States Virgin Islands and the Northern Mariana Islands, each with its own spin.

In 1900, Congress legislated theForaker Act, transitioning military rule to a civil government in Puerto Rico. This legislation affirmed United States sovereignty and imposed a local government in Puerto Rico beholden to federal authority. This included the power to repeal legislation, the creation of a governmental structure that consolidated legislative and executive functions in a single body, composed mostly of non-native inhabitants, imposed tariffs on goods exchanged between Puerto Rico and the United States and defined the limits of territorial authority.

In 1917 Congress approved the Jones-Shafroth Act conferring United States citizenship on Puerto Ricans and partially modifying the government structure. In a later decision by the Supreme Court, Balzac v. Porto Rico (1922) the Supreme Court ruled that although Puerto Ricans enjoyed statutory citizenship, as an unincorporated territory it did not have right to a jury trial in criminal cases, as required under the Sixth Amendment of the United States. This case continues to exemplify the limits of citizenship under the territorial clause.

The Insular Cases are to this day the constitutional justification for disparate and unequal policies that has defined the relationship between the territories and the United States, authorizing Congress to act under the plenary powers granted by Article IV, Section 3 of the Constitution.

These cases created a political, national and racial framework that treats its inhabitants unequally and without voting representation, “separate and unequal,” in the phrase of the late Federal Circuit Court of Appeals Judge Juan Torruella.   

The 2016 Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), legislated to address Puerto Rico’s bankruptcy, is a telling instance of the continued territorial status and the political disenfranchisement of its population.

In the last seven years, the Supreme Court has extended the lease on the unincorporated territory with a new crop of Insular Cases: Puerto Rico v. Sanchez Valle (2016), Puerto Rico v. Franklin California Tax-Free Trust (2016), Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment (2019) and, just recently, U.S. v. Vaello-Madero (2022).

This latest case confirmed congressional authority to discriminate against United States citizens in the participation of federal programs because of their geography, attests to the continue enforcement of the unincorporated territory doctrine. As Associate Justice Neil Gorsuch wrote in his concurring opinion in U.S. v. Vaello Madero, “the Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.” 

The Puerto Rico Advisory Committee has taken as its charge to examine the Insular Cases and the doctrine of the unincorporated territory and how it serves to curtail the civil rights of its residents, concentrating on voting rights issues, participation in federal public programs and discrimination based on race and national origin. The advisory committee will be hearing from residents, scholars and other experts who represent the diverse political perspectives in Puerto Rico. The public briefings are intended to be timely announced, recorded and transcribed for the public record, with Spanish-English interpretation. The meetings will include time for public comments and will allow for written statements to be submitted for the record.

Our purpose is to advise the U.S. commission on Civil Rights on the continued pernicious impact of the Insular Cases and the doctrine of unincorporated territories and their toll on the civil rights of the people of Puerto Rico — 125 years of territorial discrimination is enough.

Andrés L. Córdova is a law professor at Inter American University of Puerto Rico and chairman of the Puerto Rico Advisory Committee to the United States Commission on Civil Rights and commissioner of the Puerto Rico Civil Rights Commission.