Until recently, no one dared to call Puerto Rico a colony. Puerto Rican leaders took offense at the idea. Equally, stateside politicians bristled at the characterization of the U.S., as a beacon of democracy, acting as a colonial power.
Recently, however, there has been more widespread recognition that the relationship between the United States and Puerto Rico can fairly be described as colonial.
A new article by Cesar A. Lopez-Morales called “Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause” takes the position that “there can be no equality for the territories without formal decolonization—that is, without the territories ceasing to be territories under the Constitution.”
“Equality is a mirage where Congress can delegate significant authority to a territorial government to resemble the autonomy of the states,” writes Lopez-Morales, “while retaining the power to revise or revoke that delegation pursuant to the Territory Clause.”
Overruling the Insular Cases
The Insular Cases, a series of 20th century Supreme Court decisions about the new island territories of the United States, including Puerto Rico, have experienced a surge of recent interest. The Supreme Court recently declined to review Fitsemanu, which many people had hoped would provide an opportunity to overrule those cases.
However, Lopez-Morales points out that simply rejecting the Insular Cases will not solve the problem of colonialism.
“Overruling the Insular Cases, while long overdue, is unlikely to change the distinct constitutional status of the territories vis-à-vis the states,” he points out. Since the authority of Congress over the territories is based on the U.S. Constitution and not the court’s decisions, overturning those decisions will not end the colonial relationship. “So long as the territories remain subject to Congress’ authority under the Territory Clause, it will be exceedingly difficult, if not impossible, for territorial residents to enjoy the same rights as the states’ residents.”
The Territory Clause as Temporary
However, the idea that the Territory Clause gives Congress carte blanche to rule over the territories forever is not actually part of the Constitution. In fact, according to Lopez-Morales, “Congress’ indefinite governance of the U.S. territories is contrary to the original public meaning of the Territory Clause. It was well established at the time of the Founding, and for a century thereafter, that Congress would govern the territories only as states-in-waiting, not as permanent possessions.”
The Insular Cases set up the idea of a separate group of territories which could — for reasons apparently rooted in racism — remain territories indefinitely rather than being understood to be on a clear path to statehood.
A Possible Solution
If the Territory Clause was reimagined by the Insular Cases, the authority of Congress over the territories cannot be undone by overturning the Insular Cases, but neither can the Territory Clause itself be undone without a Constitutional amendment.
Therefore, “putting an end to the separate and unequal treatment of territorial residents requires, at a minimum, the formal decolonization of the territories, which can only be accomplished through statehood or independence.”
“Reclaiming the original meaning of the Territory Clause is not just a resourceful tactic to have in our constitutional toolbox,” says Lopez-Morales. “It is a crucial element of any successful strategy to transform the real-world conditions of territorial residents and to make a persuasive case for decolonization—one that brings a new perspective to the classroom, the courtroom, and the halls of Congress.”
“Put simply,” he concludes, “the Constitution does not authorize the current colonial reality of the territories—namely, the indefinite exercise of substantial power over a permanent possession.” This interpretation of the Territory Clause is, he argues, an error that needs correction.
“The United States has a colonies problem. Overruling the distinction among incorporated and unincorporated territories created in the Insular Cases, while necessary and important, will not remove many, if not most, of the obstacles that territorial residents face on a daily basis in their incessant pursuit for justice and equality. Nor would overruling the Insular Cases change the legal reality that the territories and the states are distinct entities under the Constitution. To remove those obstacles, and change that reality,” Lo[ez-Morales concludes, “formal decolonization must happen.”