As we despair about decisions emanating from the High Court of the land, whether about the rights for women or for voting, for starters, we can rightfully rank the Court at the lowest level of confidence ever.
At the same time, the populace knows little about the details of Puerto Rico’s relationship to the U.S., nor does it know much about the rights of citizens from U.S. territories. Although many citizens may not care, this should not be reason for vast majorities to stay in the dark. The point is they are poorly informed if at all.
The Insular Cases reveal a principal point. It references a series of cases decided by the U.S. Supreme Court dealing with the status of the territories the United States acquired at the turn of the twentieth century, many as remnants from the Spanish American War (1898). Fast forward to the present, this still remains as a recent decision that does not allow Puerto Rican residents to benefit from the SSI provisions. Why? Unbelievably, it is because Puerto Rico continues to be “unincorporated” as a state of this country whose residents are without full benefits of American citizenship, as a continuing form of second-class citizenship during this century. BTW this is not unique, as Guam, the CNMI, Samoa, and the Virgin Islands suffer the same fate. Cuba and the Philippines escaped this predicament via independence.
How has this continued? The High Court’s decision was based on a rather disturbing ruling this past year (April 2022). Again why? Because Puerto Ricans are not bona fide Americans. As a result, this group of American citizens [yes] do not qualify to reap the full benefits of citizenship, but they can go to war! As yet, they are fossilized in a permanent state of paralysis (rampant colonization), now over a hundred years. To date, the condition represents the largest group of citizens under this category for any country worldwide.
The irony is that while the Court expresses skepticism of its territorial-incorporation doctrine, it has not ruled further. By default, as it remains on the books, lower courts continue to rely on these Insular Cases and deprives residents from U.S. territories the rights of constitutional privilege. Worse, beyond doctrinal impact, such cases (at least nine of them) continue to serve as the basis for Congress to maintain discriminatory laws, much as Plessy (1896) did for laws that discriminated against African Americans until overturned by Brown (1954), except that Puerto Ricans and sister colonies are still under such rulings. Worse yet, jurists and legal scholars at the time argued that Puerto Rico and other newly acquired territories were “inhabited by alien races.” Apparently, they were too culturally and racially distinct to be governed under “Anglo-Saxon principles.” The problem is that territorial islanders are still subject to such racism.
Bottom line, as now interpreted, the Constitution is to apply “in full” for incorporated territories, but only “in part” for unincorporated territories like Puerto Rico. As some scholars rightfully declare, despite recent and overwhelming scholarship against the Insular Cases, the Supreme Court has not only failed to overrule them but also refused to engage in an effort to formalize new Insular Cases.
Imagine for a moment that you are a citizen of New York that moves to Puerto Rico in search of a better climate. You do not need a passport to make the trip and you will not go through customs, as Old Glory flies above Puerto Rico like anywhere in the States. Yet, once you establish residence you lose the ability to vote for the President. You also have no valid representation in Congress. While you also won’t pay federal income tax, you will pay payroll taxes to the same extent as in the mainland.
Further, as Yanira Bonilla, opinion columnist for the New York Times recently affirmed, should you suffer serious health conditions while living in the island, access to safety-net programs funded by your taxes, such as Supplemental Nutrition Assistance Program (SNAP), Supplemental Security Income (SSI), Medicaid, and Medicare Part D, will be substantially curtailed or denied. Your family will not have access to the pandemic child tax credit program or the refundable portion of the Earned Income Tax Credit. The list continues! Why? The situation is legal in Puerto Rico and its sister territories, the result of the Insular Cases. So much for democracy!
Here the basic message is that the Court “has not been a paragon of principle standing up for the downtrodden and dispensing justice without fear of favor across the long arc of American history,” as Lawrence Tribe describes in his latest article in his review of books on the Supreme Court in The New York Review of Books (summer issue). Instead, as he concludes, “It has largely been anything but” (p. 52).
For those who think the Court has done well otherwise, let’s not forget its history. It has been more conservative than liberal, and more subjugating than liberating. Let’s not forget that Plessy was preceded by Dred Scott (1857) years earlier which upheld the decision that Black Americans could never become citizens and had no rights that whites were bound to respect. At the same time, it was years later that Hammer v. Dagenhart (1918) deprived Congress the authority to forbid the interstate sale of the product of child labor; or Buck v. Bell (1927) which sustained compulsory surgical sterilization of women of supposedly substandard intelligence; or Korematsu (1944) that upheld the forced removal of loyal Japanese Americans from their home after Perl Harbor; just to name a few.
Yes, while we are still creating a more perfect union, it is time that remaining injustices are corrected. Turns out, some have been from the past, but with others more recently reversed to detriment, a major stalemate for progress. The fate of Puerto Rican islanders (and its sister territories) remains anachronistic and drastically unequal. This continues to be intolerable and should not stand.