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.