1919 Article: Problem isn’t Puerto Ricans’ Status, it’s Territory’s

Many in recent decades have questioned the appropriateness of the U.S. Supreme Court decisions known as the Insular Cases in determining constitutional law regarding U.S. territories, including Puerto Rico. They include Supreme Court justices — but the nation’s highest court has continued to rely on the rulings.

The questions arise because attitudes among the majority population of the United States of the time of the holdings — the first two decades of the 20th century — were so different from current attitudes.

Yet even at the time, there was controversy over the cases that declared Puerto Rico “unincorporated territory” and kept the islands in their current unsettled condition for so long. One example is the article, The Relations Between the United States and Porto Rico by Pedro Capo-Rodriguez, published in the American Journal of International Law in 1919. (“Porto Rico” was the common spelling of “Puerto Rico” until 1932.)

The author begins with the treaty by which Spain ceded Puerto Rico to the United States, pointing out that the question of nationality was mentioned many times, and that it was clearly stated that the residents of Puerto Rico would be Americans and not Spaniards following the end of Spanish sovereignty in Puerto Rico. Spain, he points out, relinquished her sovereignty over Cuba, but passed her sovereignty over Puerto Rico directly to the United States.

Capo-Rodriguez dwells at length on the differences of opinion among the justices in the Insular Cases decided prior to his writing, and points out that the idea of an unincorporated territory was not a single idea developing from a single understanding of the circumstances, but instead came from a variety of arguments that were “not in harmony” with one another.

In fact, Capo-Rodriguez concludes, there is no agreement either on what exactly an unincorporated territory might be nor on Puerto Rico’s status.

In the meantime, and until public opinion has crystallized into some sort of solution, the territory in question is held to be… in the position of a colonial possession, waiting, so to speak, upon the decision of Congress.

Capo-Rodriguez went on to suggest that the problem for Puerto Rico appeared to be that the arguments in the courts continued to suggest that the change from unincorporated colonial status to incorporation required some kind of change in the character of Puerto Rico. In fact, he concluded, the only thing that seemed to be certain in the Insular Cases was the intention of Congress, and not the well-being or the rights of the people or their readiness to be incorporated. As long as Congress hadn’t decided what to do with Puerto Rico, it would be unincorporated.

The article points out that the people of Puerto Rico had recently become citizens of the United States, an event which many people felt should settle the political status of the territory. That didn’t happen. Capo-Rodriguez recognizes that this was upsetting to some.

This apparently continued exclusion of the Porto Rican from taking part in the active political life of the nation has led some misinformed or disappointed persons to contend that the American citizenship granted to the Porto Ricans is a base, adulterated, and inferior citizenship of the United States.

The author disagrees, pointing out that the lack of full citizenship rights applies not only to natives of Puerto Rico, but to any U.S. citizen who happens to live there. There is, then, nothing wrong with the citizenship — the problem is just that Congress hasn’t made up its mind about Puerto Rico.

“It is a peculiar condition,” he says, “which finds no remedy except in statehood.” The citizenship conferred on Puerto Rico’s inhabitants, he says, is an “empty honor” as long as Puerto Rico remains a “mere subservient piece of territorial property.”

Nearly a century later, Puerto Rico continues to be in this “peculiar condition” and the only solution remains the same.

4 Comments

Dennis Freytes

–There are TWO US Citizenship Sources–
This argument is wrong: “…the lack of full citizenship rights applies not only to natives of Puerto Rico, but to any U.S. citizen who happens to live there. There is, then, nothing wrong with the citizenship — the problem is just that Congress hasn’t made up its mind about Puerto Rico.”

**SYNOPSIS-US Federal vs US Territory of Puerto Rico unjust Relationship**
(For Sources-Proof-Facts-Truth: See Enclosure Page 10)
“The Federal Government should be the Servant of ALL the People; not the Master of some!”
1.In 1898, Puerto Rico (PR) was taken as War booty; made a forced US Territory-Colony that falls under the undemocratic control of the Federal Government (US President, US Congress, and US Supreme Court), per the trite Territorial Clause (1787) that states: “The US Congress has the Power to dispose of and make all rules and regulations respecting the Territory or Property belonging to the United States.”, and US Supreme Court discriminatory Insular Cases (1901-1925+; when racism was in vogue).
Fellow, but, 2d Class US Citizens-American Veterans in the “unincorporated” US Territory of Puerto Rico don’t have all “We the People” Constitutional rights, benefits, Parity in Federal Laws…nor a permanent *statutory US Citizenship (even if residing in a State)!
 The Federal Government controls PR’s economy/market, currency, security, borders, defense, shipping (1920 Jones Act), taxes, benefits, foreign relations…; oversees all local laws; can cede PR to another Nation; doesn’t provide for FAIR Treatment; an Equal US Citizenship… while Puerto Ricans pay some Federal Taxes, fees…; contribute to the US economy; creation of hundreds of thousands US Jobs…; more flow of capital to the US than it fairly gets from it…
2.*Sources of US Citizenship-
US Constitution 14th Amendment (PERMANENT)–which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside…” Thus, you are a permanent US Citizen if born in a State or Naturalized…in a State there-in… *It doesn’t mention a US Territory which have a statutory (by Law) un-permanent US Citizenship, per various US Supreme Court and Federal Court Decisions.
Territorial Clause; per Insular Cases (UNPERMANENT): The 1917 Jones Act imposed a Federal statutory (by Congressional Law…) 2d Class US Citizens on the inhabitants of the US Territory of Puerto Rico–WITHOUT all rights, benefits, parity in Federal Laws…or a permanent statutory US Citizenship-(no matter where you reside-includes in a State…)
3.Territories are under the undemocratic will of the US Congress, per the archaic Territorial Clause and the Insular Cases (1901-1925+; during Racist times)– that authorizes our US Congress to provide a Federal Statutory (by Federal Law) US Citizenship that can be revoked by the US Congress—which undemocratically controls the US Territory of Puerto Rico…
4.The US Supreme Court (Insular Cases-1901-1925+; made during racist times—especially-1901-Downes vs Bidwell and 1922-Balzac vs PR) —wrongly determined “the US Congress could discriminate in applying the US Constitution to the US Territory of Puerto Rico…” (has more US Citizens-American Veterans than 22 States) because—PR is an “unincorporated” US Territory that belongs to, but, is not part of the US (incongruently making PR “more Foreign than Domestic”).
These discriminatory terms are not found in the US Constitution nor were used for US Territories that became States before Puerto Rico! Besides, some Congressmen called Puerto Ricans– “aliens”, mestizos, could not govern themselves…”
Yet the US Supreme Court has not revoked the Insular Cases as they are the standing discriminating LAW that governs PR until today; goes against the essence of our “WE THE PEOPLE US Constitution; Fairness; Equal Rights!
This raises a dichotomy question, how can US Citizens-American Veterans be incongruently- discriminated (treated differently) as “Foreign” in some Federal Laws under their US Flag (like 2017 Tax Reform Law; plus, taken out from the Federal Debt Reorganization Federal Code-1984…); not provided all rights, benefits, parity in Federal Laws, permanent statutory US Citizenship… that other US Citizens have? The US Citizen is the ESSENCE–of our US Constitution-WE THE PEOPLE; “Consent of the Governed”; not, the undemocratic Federal control of the Land and People!
The terms “unincorporated, more foreign than domestic…”are NOT in the US Constitution! Besides, Territories before Puerto Rico didn’t suffer this Federal institutional discrimination…!
The Federal US Supreme Court, in the “Insular Cases”, has mal interpreted our developing WE THE PEOPLE US Constitution (with Amendments, includes the “Bill of Rights”…)! THUS, the US Supreme Court must do its duty to Revoke the Insular Cases; Incorporate Puerto Rico; provide all the guarantees of our US Republic (government by-for the People); UNITED under our US Constitution (“We the People”) with a Representative Democracy; “Consent of the Governed”!
5.Under the US Constitution, there are only four major ways of government under the sovereignty of the US-Federal Government– one for States, Territories, District of Columbia, and Indian Tribes. The US Congress can rescind any Laws it makes… But, it’s not above the US Constitution to create a new Status… “Commonwealth” or ELA-“Free Associated State” (Estado Libre Asociado”) are political distorted terms that are not found in the US Constitution; cause confusion and fool people as to the true PR Status which is–“US Territory”. However, the Federal Government, under the Territorial Clause, can dress-up its Territories with a political name that hides the true Constitutional Status; name the Government “Commonwealth” or ELA: Free Associated State—which is not a constitutional Status.
6.Puerto Ricans have voted for Statehood in the last two Plebiscites (2012-2017); don’t want Independence—which never gets more than 5% in local Plebiscites; has elected a pro-statehood Territorial Government! More Puerto Ricans (6+ million) live in the States than live in PR (about 3.2 million); are integrated into the US way of Life…; have made great Contributions to our noble “We the People” USA!
7.Puerto Ricans are integrated into the US way of life…; their Hispanic Ancestors (which came to the now USA (1513)-107 years before the Pilgrims–brought Christianity, horses, cows, pigs…; fought in the War of Independence for our USA…); and since 1898, Puerto Ricans fight, under our US Flag, (WW-I; WW-II; Korea; Vietnam until today…); have made great contributions (in all fields of endeavor) to our grand US Flag!

TODAY, Our US Republic’s (Government by the People) US Constitution “WE THE PEOPLE”—is made up by Individual US Citizens with EQUAL Rights; has a Representative Democracy-with “Consent of the Governed”…But, millions of US Citizens-American Veterans have a 2d Class US Citizenship…!

The Federal Government (US President; US Congress; US Supreme Court) have created two Groups of US Citizens, under our noble US Flag: ONE with 1st Class US Citizenship– WITH all rights, benefits, parity in Federal laws, permanent US Citizenship…; ANOTHER with 2d Class US Citizenship WITHOUT– all rights, benefits, parity in Federal laws, permanent US Citizenship…etc.

Thus, the Federal Government must take action to end this trite Federal undemocratic Territorial Status through incorporating US PR, and conducting a NON-Territorial Plebiscite with defined constitutional options; as the US Supreme Court must revoke the appropriate Insular Cases, like they did with “Plessy v. Ferguson” (1896-separate, but, equal doctrine to justify racial segregation) in “Brown vs the Board of Education”!

Dennis Freytes

There is a difference between a permanent US Citizenship, fully protected by the 14th Amendments vs a statutory (NONPERMANENT) US Citizenship, per the Territorial Clause and Insular Cases!

If you have a non-permanent US Citizenship by Statute (LAW), the US Congress can take ii away–even if residing in a State! (See below Facts)

This goes against the Spirit of our “WE THE PEOPLE” US Constitution!

Dennis Freytes

**Statutory (by Law) US Citizenship is NOT-permanent-includes Puerto Ricans**
RESEARCH-FACTS are–the US Congress, under the 1917 Jones Act, provided a statutory US Citizenship for the “unincorporated” US Territory of Puerto Rico, and allowed those born in Puerto Rico to be US Citizens at birth… But, a statutory US Citizenship (under the Territorial Clause; Insular Cases), is not fully protected by the 14th Amendment (that doesn’t mention Territories)…! Also, any Law a Congress makes, can normally be revoked by Congress! Thus, those statutory US Citizens born in Puerto Rico don’t have a permanent US Citizenship, no matter where they reside (even in a State), because it is statutory (by Law)… The only way for a permanent US Citizenship is through STATEHOOD!
SOME PROOF– 
The 14th Amendment states: “All Persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the US and of the State wherein they reside…”
oThe 14th Amendment doesn’t mention “Territory” or being born as a statutory US Citizen in an “un-incorporated” US Territory… It mentions you are a US Citizen of the “State wherein they reside…” Thus, protecting those born in the States or Naturalized in the States; and not protecting statutory US Citizenship which is at the will of our US Congress…
Rogers vs Bellei (1971) ruling confirms that Congress can grant citizenship to persons who don’t acquire it under the 14th Amendment, but all such statutory citizenship laws exist at the pleasure of Congress. That means Congress can make acquisition and retention of statutory citizenship conditional and revocable.
oIt also means federal citizenship laws remain subject to amendment or repeal as to persons born outside a State of the Union, including those born in “unincorporated” territories like Puerto Rico.
The 1997 Congressional GAO Report-U.S. INSULAR AREAS Application of the U.S. Constitution, states: “Citizenship is derived either from the Fourteenth Amendment to the Constitution or from a specific statute that confers citizenship on the inhabitants of an area that, although not a state, is under the sovereignty of the United States. Such legislation has been enacted for Puerto Rico (8 USC § 1402)…”
CONGRESSIONAL RESEARCH SERVICE (1989)- confirmed that Puerto Rico belongs to the United States but is not in the United States. “Whatever its exact status and relationship to the United States,” CRS cautioned, “Puerto Rico is not itself in the United States.” The 14th amendment, according to CRS, therefore doesn’t apply to people born in Puerto Rico.
US President Task Force on PR Status (2004 & 2006) “If P.R. were to become independent “… those…who had U.S. Citizenship only by statute would cease to be citizens of the United States, unless a different rule were prescribed by legislation…” (Page 9) (US Congress can revoke a Statutory US Citizenship, even if residing in a State…)
Tuaua v. United States (2016)- CONFIRMED- the legal nature of U.S. nationality and citizenship law in “unincorporated” territories–the Constitution’s 14th amendment does not apply to people born in a U.S. Territory, per, Territorial Clause and Insular Cases-which decided that the U.S. Constitution doesn’t apply entirely to unincorporated territories like Puerto Rico… This is standing law!
oIn reality, even people born in Puerto Rico at this time as an “unincorporated” U.S. territory do not have any right to U.S. citizenship under the U.S. Constitution as it applies in a State of the Union. Rather, persons who are not born in a State of the Union do not acquire citizenship unless Congress exercises its discretionary power to grant citizenship by statute (can be revoked).
oThat is why federal statute law (8 USC 1401) had to be enacted to provide for naturalization of persons born outside a State of the Union based on relationship to a U.S. citizen parent.
oAny statutory right of citizenship derived from a parent’s citizenship allowed by Congress can be repealed as to all children born in the future.
oThat includes persons born in U.S. territories even while under U.S. sovereignty, and certainly upon becoming sovereign. As the court’s ruling in Bellei quoted makes clear, even the first generation born after territorial status ends can and will be denied derivative U.S. citizenship based on parent citizenship acquired during the territorial period.
This truth is masked in a recent U.S. Department of Justice letter and White House reports on Puerto Rico’s status also have been somewhat vague, but at least recognize that even sovereignty with a treaty of free association is a form of Independence leading to loss of citizenship at some point in future…
Congressional reports adopted by committees with jurisdiction for territories, as well as Congressional Research Service, reports, make it clear U.S. citizenship will end if U.S. sovereignty ends in Puerto Rico. See U.S. House of Representatives Report 105-131, Part 1, pp. 13-14; pp. 35-38.
The inapplicability of 14th Amendment outside a State of the Union also explains why for “unincorporated” territories like Puerto Rico Congress had to enact a federal statute (8 USC 1402) to provide statutory rather than constitutional birthright citizenship based on birth in Puerto Rico.
In Bellei the highest federal court rejected the claim of a person with statutory citizenship that vague notions of “due process” required expansion of constitutional 14th Amendment citizenship to U.S. territory outside a State of the Union.
US Attorney General Dick Thornburgh (& Under Secretary of the United Nations)—in “THE STATUS OF PUERTO RICO A CONSTITUTIONAL FRAMEWORK FOR SELF-DETERMINATION” (2007) and in other Writings States: “Four million U.S. citizens live under the U.S. flag in Puerto Rico, yet they can neither vote for president nor have voting representation in Congress, which enacts the federal laws under which they live. Residents of Puerto Rico and other U.S. territories are deprived of basic rights of self-determination that U.S. citizens generally enjoy and that the United States has committed itself to achieving for peoples around the globe.”
o“Political gridlock in Congress and in Puerto Rico has stymied efforts to put Puerto Rico on a path toward a permanent political status that ensures full self-government for its residents. If Congress does not act soon, U.S. courts may be asked to give more serious consideration to whether the residents of Puerto Rico and other U.S. territories have political and human rights under U.S. and international law that can no longer be ignored by the political branches of government.”
oBesides, Thornburgh states: “The ruling of the Supreme Court in Rogers v. Bellei 401 U.S. 815 (1970), regarding the nature of statutory citizenship is consistent with the conclusion that even a statutory extension of the Fourteenth Amendment to Puerto Rico could not limit the discretion of Congress to amend or repeal that statutory extension.”
Afroyim v. Rusk (1967), established that citizens of the United States cannot be deprived of their citizenship involuntarily. But—
oThe national citizenship clause of the 14th Amendment to the U.S. Constitution is not the source of U.S. citizenship for any person born in Puerto Rico. That means the Afroyim case defining constitutional citizenship rights, applies only to U.S. citizens born or naturalized under the 14th Amendment as it applies in a State of the Union.
oIt was not the Afroyim ruling, but rather the case of Rogers v. Bellei in which the U.S. Supreme Court ruled on the legal nature of U.S. citizenship granted at the discretion of Congress by federal statutory law, based on birth or naturalization outside a State of the Union. Puerto Rico is a U.S. territory that has not been “incorporated” under the U.S. Constitution, so the national citizenship clause of the 14th Amendment as interpreted in the Afroyim case is not the source of citizenship in the territory.

Dennis Freytes

STATUTORY US CITIZENSHIP– In SUM: There are two sources of US Citizenship: one by the 14th Amendment that is permanent; another by US Congress that is statutory (by Law); can be revoked, especially if an unincorporated US Territory is grant Independence… Besides, you can’t be a sovereign Nation with the Citizenship of another Nation! Where would the loyalty lie? Congress, in 1917, imposed a “statutory” 2d Class US Citizenship through a Statue/Law that a future Congress can rescind; created a 2d Class US Citizenship for millions of fellow US Citizens-American Veterans in the US Territory of Puerto Rico and those Statutory US Citizens, residing in a State, have a non-permanent US Citizenship at the will of the US Congress; not fully protected by the 14th amendment (that only protects those born in a State-“birthright” or naturalized… in a State there-in)!

**U.S. Supreme Court ruled on the legal nature of statutory citizenship for children “born abroad,” which means outside a State of the Union, including territory under U.S. sovereign rule but, not incorporated under the U.S. Constitution:
“The first sentence of the Fourteenth Amendment has no application…The claim thus must center in the statutory power of Congress…’naturalization by descent’ was…dependent, instead, upon statutory enactment…’But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.’ …there emerged an express constitutional definition of citizenship. But it was one restricted…
The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action…
The Court has specifically recognized the power of Congress not to grant a United States citizen the right to transmit citizenship by descent…This takes us, then, to the issue of the constitutionality of the exercise of that congressional power when it is used…We conclude that its imposition is not unreasonable, arbitrary, or unlawful, and that it withstands the present constitutional challenge…
Congress has no ‘power, express or implied, to take away an American citizen’s citizenship without his assent,’ Afroyim v. Rusk…But, as pointed out above, these were utterances bottomed upon Fourteenth Amendment citizenship and that Amendment’s direct reference to ‘persons born or naturalized in the United States.’
We do not accept the notion that those utterances are now to be judicially extended to citizenship not based upon the Fourteenth Amendment and to make citizenship an absolute. That it is not an absolute is demonstrated by the fact that even Fourteenth Amendment citizenship by naturalization, when unlawfully procured, may be set aside…A contrary holding would convert what is congressional generosity into something unanticipated and obviously undesired by the Congress…”

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.