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Reconsidering the Insular Cases at Harvard Law

On February 19th, Harvard Law School will present a conference on “Reconsidering the Insular Cases.”

The featured keynote address will be by the Honorable Juan Torruella, U.S. Court of Appeals for the First Circuit“The Insular Cases:  A Declaration of their Bankruptcy and My Harvard Pronouncement”

The Insular Cases are a series of Supreme Court cases settled between 1901 and 1905 which imply that U.S. citizens living in the “insular” or island territories, including Puerto Rico, are not automatically covered by the U.S. Constitution. The opinions given by the court at the time determined that “fully incorporated” territories were covered by the Constitution, but that “unincorporated” territories, such as Puerto Rico, were only partly covered by the Constitution.

Exactly which cases are included among the Insular Cases has been a matter of some controversy.  Downes v. Bidwell (1901) established the incorporated vs. unincorporated distinction and Balzac v. Porto Rico (1922) affirmed it in the case of Puerto Rico.

Torruella has spoken repeatedly on the problems created by the Insular Acts, which are, he says, “some of the most notable examples in the history of the Supreme Court in which its decisions interpreting the Constitution evidence an unabashed reflection of contemporaneous politics.”

Supporters of the discredited idea of “Enhanced Conmmonwealth” for Puerto Rico sometimes point to the Insular Cases as an example showing that Congress can create new kinds of relationships with territories; however, panelist Christina Duffy Ponsa has argued that this is a “perversion” of the Insular Acts.

The program includes three panels:

  •  History:  Perspectives and Lessons

Panelists:  Christina Duffy Ponsa (Columbia Law School); Efrén Rivera Ramos (University of Puerto Rico School of Law); Bartholomew H. Sparrow (University of Texas at Austin)
Moderator:  Tomiko Brown-Nagin (HLS)

  • Contemporary Issues Regarding the Territories

Panelists:  Chimène Keitner (University of California, Hastings School of Law); Rogers Smith (University of Pennsylvania); Michael Williams, Esq.
Moderator:  Gerald Neuman (HLS)

  • The Future Status of Puerto Rico

Panelists:  Rafael Cox Alomar, Esq.; Andres López, Esq.; Carlos Gorrín Peralta (Inter-American University of Puerto Rico School of Law)
Moderator:  Richard Fallon (HLS)


0 thoughts on “Reconsidering the Insular Cases at Harvard Law”

  1. This will put Ralphie Cox Alomar,of the *self proclaimed* “popular” Democrat Party PDP in a fate similar to what happened to Gov Padilla in Congress……

    To be told in the face that “Enhanced Commonwealth is unconstitutional”.

  2. Equal US Citizenship for ALL!
    The complex US Territory of Puerto Rico’s equal rights quandary- that affects millions of discriminated US Citizens, is not only about a “Group Vote” on the status question, but, more essentially crucial, it’s about protecting individual civil rights in our representative democracy-where the US Citizen should be the epicenter of our Republic, not the US Government’s un-democratic territorial control of the land & People.

    Facts are: In 1898, Puerto Rico (PR) was forcefully taken and turned into a federally un-democratic US Territory. Then, in 1917, Congress imposed a statutory “2d Class US Citizenship” (without all rights/ benefits)– that doesn’t permit loyal US Citizens (including fighting US Veterans) residing there to vote in Federal elections (for their US President/Head of State) nor have just representation in the Congress that determines their destiny nor permanent US Citizenship– under our noble US Flag.

    Many in PR are forced to pay Federal taxes (without just representation), such as: Social Security, Medicare, Payroll, and other indirect/invisible taxes, but, US Citizens there don’t get full benefits… Also, they must use American Ships (which are more costly/un-competitive; raises immensely the cost of products and services-including electricity)… This along with the territorial status– adversely affects PR’s economy; negates a “Free Market” with competition; incentives for capital investment that brings economic growth, creation of good jobs… (“No taxation without just representation!”)

    Three main sources of this despotic power are: the un-democratic original Territorial Clause (states: Congress shall have the powers to dispose of and make all rules and regulations pertaining to the Territory…or Property belonging to the US…); the discriminatory vestiges of the “Insular Cases” (1902-1922+); & Federal Government inaction!

    The Territorial Clause was written during the original framing of the US Constitution when the focus was to unite States; develop the boundaries of the Nation…with a central Federal Government responsive to a selective “We the People”… Because of the racist/institutional biased era, it was not centered on today’s essence of our democracy-true “consent of the governed”–the US Citizen with protected equal individual rights!

    The Constitutional amendments have tried to redress this…but, millions of US Citizens are still suffering Federal discrimination/oppression because of faulty interpretations by Federal Courts that fail to give priority to the individual civil rights amendments …; inaction of the Federal Government to act or amend the Constitution!

    During the Insular Cases (Bidwell & Balzac), Federal Courts wrongly interpreted the Constitution & determined: PR is an “un-incorporated” US Territory–“more foreign than domestic-belongs to, but, is not part of the US”… (Words not found in our Constitution; not applied before to other Territories becoming States). This allows Congress to wield veiled un-just powers that discriminate (differentiate) in applying the US Constitution (as sustained in Harris vs Rosario)–till today! The disguised discriminatory vestige of the “Insular Cases” puts in contention that statutory US Citizens have full-equal protection under just laws; acquired rights…! This is un-acceptable in our Democracy; un-American! Let’s spotlight the truth!

    Some Congressmen and Federal Judges (of the time- racist era), as they coined the above unfair Insular Terms made outrageous biased comments, such as: “Because of different origin and language… Puerto Ricans were inferior… mestizos; could not govern themselves”.

    Besides, statutory US Citizenship is conferred by a Law that can be revoked by Congress… It isn’t fully protected by the US Constitution’s 14th amendment (states that you are a US Citizen if you are born in a State or Naturalized– most likely applies to Individuals, not to a “differentiated” Group born on “foreign” territorial land)…

    The Puerto Rico Resident Commissioner which represents about 4 million US Citizens (proportionally equal to six US Representatives and two US Senators)–has no vote in Congress! This isn’t just representation!

    Many US Judges to include, Former Chief Judge Torruella (US 1st Circuit Court of Appeals) in his Book-has critiqued the judicial system and compares the “Insular Cases” (1901-1922), that defined the status of Puerto Rico to Plessy v. Ferguson (separate but equal doctrine to justify racial segregation) that was overturned with Brown v Board of Education (1954)– to Puerto Rico’s case of un-democratic inequality (2d Class US Citizenship).

    If there is a conflict between the original Territorial Clause and the civil rights Constitutional amendments —equal US Citizenship should triumph! We should not have a discriminatory “2d Class US Citizenship”!

    But, some try to hide or distort the truth to fool people–by referring to PR’s Status as “Commonwealth” or translated in Spanish-ELA (Free Associated State). These terms are political esoteric names (not found in the US Constitution) used to camouflage a local regulated government–allowed some broad powers, but, still under the un-democratic control/will of Congress. (Our Constitution only recognizes two forms of government under the sovereignty of the US: one for States another for Territories.)

    Besides, President W. Bush Task Force on Puerto Rico’s Status Report–after years of analysis by the US Justice Department (page 9/not refuted by any other Reports), states: “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 or treaty.”

    Where is the Patriotic outcry against an aged wrong? Where are President Obama, Congress, and our Justice Department/Courts on following the illuminating examples of President Lincoln, Dr. King, and other Patriots (of true grit); ending this institutional discrimination quagmire? Enough with unfair excuses, distortions, and political spins that fool and subjugate loyal US Citizens! Today, American Citizens (with equal rights, responsibilities, and benefits) should be the focus of our “We the People” representative Democracy!

    The Federal Government’s actions (for over 115 years) — oppress; discriminate; negate our constitutional civil rights amendments; conflicts with the spirit of our democracy! An un-democratic Territorial Status has a negative impact on the US (morally/otherwise); PR’s economy, quality of life… Plus, it causes an exodus of millions (in search of the American Dream) to the Mainland.

    Moving forward, PR held an internal plebiscite (Nov. 2012). Results: 54% (958,915) -end Territorial Status; 61+% (824,195) Statehood; 5% (74,812) Independence… (Total Voted: 78%) Respect this democratic vote!

    It’s the duty of the Federal Government (which at times has been benevolent) to take action; Congress must:
    • Enact HR-2000 (“Puerto Rico Status Resolution Act”- yes or no vote on Statehood); ratify the democratic majority decision!
    • If not, conduct a self-determined PR Plebiscite with constitutionally non-territorial defined Options (that don’t fool people)…, but, achieve political equality. The only constitutional non-territorial options are: Statehood or Independence (Total or with Pact)
    • Forms of Independence include: Free Association, ELA Soberano…– means: Separate Sovereignty under PR Citizenship and PR Constitution; loss of US Citizenship, benefits, & protection of US Constitution–with no opportunity for permanent US Citizenship or Statehood… — but, with an association Pact-that can contain certain benefits, and arrangements. However, a “Pact” surrenders certain PR sovereign rights until it is terminated by either side… Thus, this is “back door Independence” (“Independencia por la cocina”)!
    *Remember: A Nation can’t be sovereign or enact a pact when under the loyalty, Citizenship, & Constitution of another Nation… *Enhanced ELA is not constitutionally viable because the US Territorial Clause is explicit on what are the despotic powers of Congress over a US Territory.
    * Let all statutory US Citizens (born in PR) Vote no matter their US residency because the outcome affects them (could lose a statutory US Citizenship)—giving them legal standing.

    We must guard against “the tyranny of a majority”! It’s the patriotic obligation of the Federal Government to take action/educate—enact HR-2000 (Statehood yes or no vote) or a Plebiscite with defined Non-Territorial options: Statehood or Independence; end institutional discrimination; overturn the Insular Cases… — lead the patriotic effort to protect individual civil rights; ensure equality in a representative democracy for ALL!
    (Dennis O. Freytes: US Army Ret.-Former Commander of: Infantry, Special Forces, Airborne…Units; Professor PMS/ROTC Dept. Director University PR; Trustee Valencia College; VP NAUS SE Region; Community Servant)

  3. Pingback: Anotaciones Para El Catecismo Estadista | — PR sin USA, No es PR; USA sin PR, No es USA.

  4. For what I have read, not been a lawyer, Puerto Rico stop been a Non-Incorporated Territory sometime in the last 40/50 yeas by Congress giving us Citizenship, and most of the “RIGHTS” all American Citizens enjoy today under the US Constitution. In essence Congress have made Puerto Rico a “De Facto” Incorporated Territory. All we would need know is for the Courts to acknowledge this. For what I understand is that ANY US Citizen that establish residency in Puerto Rico will loos some “rights” but once we move back to any State or travel overseas we do have the full protection of the Constitution.

  5. Effects of the So-Called Insular Cases
    (4) Shortly thereafter in 1901, the US Supreme Court ruled that Puerto Rico, and the other territories ceded to USA under the Treaty of Paris, had the ‘status’ of “unincorporated territories” subject to the plenary authority of the U.S. Congress under the Territorial Clause of the Constitution , and that the Constitution and laws of the United States would apply in such U.S. possessions as determined by Congress. Downes v. Bidwell. 182 U.S. 244 (1901); Dorr v. United States, 195 U.S. 138 (1904).

    (5) In this regard we believe that, under the US Constitution, Puerto Rico is, and has always been, plainly just a “US Territory” under the US Sovereignty and subject to the Authority and Plenary Powers of the US Congress as provided by Article IV, Section 3, 2nd Sentence, of the US Constitution and Congress cannot renounce such constitutional obligation. This is so since the Treaty of Paris, signed on December 10, 1898, was ratified by the US Congress on April 11, 1899, and up to the present. The non-sense of the “unincorporated v. incorporated” territory theory is not contemplated by the US Constitution. The US Supreme Court’s decisions on this matter under the so-called “Insular Cases”, were not “interpretations” of the US Constitution. They were rather, “changes” to the US Constitution and such “changes” can be made only through “amending” such Constitution, which has never occurred.

    Incorporated Vs Unincorporated Territories
    (6) In the case of De Lima v. Bidwell, 182 US 1 (1901), the US Supreme Court held that Puerto Rico became a ‘US Territory’ as soon as the Treaty of Paris was ratified by the US Congress, (April 11, 1899), and that no specific additional federal law was necessary for such an accomplishment. In the same year, however, in Downes v. Bidwell, 182 US 244 (1901), the same Court decided, just after the Foraker Act was enacted, that Puerto Rico was a “foreign country”, something it has never been since Cristopher Columbus, supposedly, ‘discovered’ the Island in 1493. Justice White used some ‘express powers’ provided by the Constitution to conclude that there was “little base” to support the principle of “immediate incorporation” that was being considered in Downes.
    Justice White said that:
    “When the different treaties under which territories have been acquired, are considered under their surrounding circumstances, it become clear that the power of making treaties was always separate from the authority to incorporate territories to the United States, without the ‘express’ or ‘implied’ consent of Congress, and that he had never imagined a single doubt to the contrary”.
    Justices White, Shiras and McKenna concluded that:

    “The uniformity clause of the Constitution did not apply in regard to Puerto Rico”
    and Justice Gray, just going “over the fence”, said that…

    “while Congress does not incorporate a particular territory to the United States, ‘neither the military occupation nor the acquisition by treaty’ convert such acquired territory into a ‘domestic territory’. Instead, the laws relative to ‘foreign countries’ continue to be applicable to the acquired territory until Congress disposes otherwise”.


    But as I was told in Korea by my Commanding Officer during the Korean War…“in war and in peace, a ‘Hero’ may always appear.”

    And Justice Harlan, appeared as a real “HERO’’, and in his dissenting opinion, said:

    “The idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces – the people inhabiting them to enjoy only those rights as Congress chooses to accord to them– is wholly inconsistent with the spirit and genius, as well as the words, of the Constitution.”

    (¡¡¡¡¡ GOOD FOR YOU…, JUSTICE HARLAN…!!!!!)

    (7) Then came in the incredible story of Balzac v. People of Porto Rico in 1922. This is a little-known case that the U.S. Supreme Court decided in 1922, as the maximum politically-biased Judicial legislation for discrimination against Hispanics in the United States of America, and our position is that it is about time that this incredible injustice be quickly and solidly corrected and reversed and we are, hereby, calling for the reversal of this so-called ‘non-incorporation’ non-sense case.

    Puerto Rico issues do influence on the increasingly important group of voters of Puerto Rico descent living in the 50 States. However, some may not realize that what they say about Puerto Rico can and do also have a significant impact on Hispanic voters in general. First and foremost, Hispanics wish to be acknowledged as Americans and that, despite of our origin, we are part of “We the People” of the “United States of America”, and nothing captures the essence of this problem more clearly than the case of Balzac v. People of Porto Rico, decided by the U.S. Supreme Court in 1922, just five (5) years after all Puerto Ricans were granted full US Citizenship on March 2, 1917 under the Jones Act of Congress.
    Most Americans would not conceive of the US Supreme Court making decisions about the application of the US Constitution on the basis of race or origin. But that is precisely what was done in this Balzac case.

    When in 1917 Congress granted U.S. Citizenship to Puerto Ricans, it was clearly “implied and understood” that the Island had been incorporated into the United States, as was then Hawaii and Alaska. This had been the reasoning of Justice White in Downes v. Bidwell, 182 US 244 (1901), when he said:

    “When the different treaties under which territories have been acquired, are considered under their surrounding circumstances, it become clear that the power of making treaties was always separate from the authority to incorporate territories to the United States, without the ‘express’ or ‘implied’ consent of Congress”. (Emphasis added)

    Well, this time the ‘implied’ consent of Congress was very clear and very logical by granting full US Citizenship to Citizens born in Puerto Rico. There was not any doubt, and nobody should ever ‘imagined a single doubt to the contrary’. Right, Justice White?? Specially when Congress had two specific examples as comparisons: the then territories of Louisiana and Alaska, in which granting Citizenship to their inhabitants resulted in incorporation.

    But, just five (5) years later, the US Supreme Court decided that an American citizen residing in Puerto Rico did not have the right of a “Trial by Jury” under the Sixth Amendment because… ”it could not have been the intention of Congress to incorporate in the Union these… distant ocean communities of a different origin and language from those of our continental people.”
    The communities to which the Court made such reference were Puerto Rico and the Philippines. But, despite the fact that Congress granted American Citizenship to the inhabitants of Puerto Rico in March 1917 after having set the Philippines on the path to independence in 1916, what mattered to the Court was not Citizenship but Origin, thus violating the clear intentions of Congress.

    In a glaring act of judicial law-making, the Supreme Court disavowed Congress and departed from the precedents of Louisiana and Alaska in which, as previously stated, granting Citizenship to their inhabitants resulted in incorporation. The basis for making a distinction with Puerto Rico was, in essence, its Hispanic population, even when Louisiana had Frenchs and Alaska had Russians, but they were all Europeans. No consideration was given to the fact that several states of the Nation, including the leading and biggest states of California and Texas, had, and continue to have, a substancial Hispanic population from the beginning.

    Please also note that the opinion in Balzac was written by Chief Justice Taft who had been Governor of the Philippines and had lost his 1912 reelection bid to Woodrow Wilson, who later in 1917 as President, signed the Jones Act granting American Citizenship to Puerto Ricans.

    Balzac is to the American citizens of Puerto Rico what Plessy v. Ferguson (upholding the constitutionality of state laws requiring racial segregation in public facilities under the doctrine of “separate but equal” in 1896), was to African Americans, before the decision in Brown v. Board of Education in 1954, upholding the rights of our Heroin Rosa Parker to sit where she pleased when riding in a public bus, regardless of the color of her skin.

    In Brown, the Court also declared state laws establishing separate public schools for black and white students, unconstitutional in 1954. The decision overturned the Plessy decision of 1896 which had allowed state laws sponsoring race segregation. It took the US Supreme Court some 58 years to correct the race segregation error, but the Balzac case is 92 years old today, and is still there alive, besides the fact that it just has no sense at all.

    Explanatory Note of the Balzac Case

    The Supreme Court of the United States held that certain provisions of the U.S. Constitution did not apply to territories not incorporated into the Union. It originated when Jesús M. Balzac, a US citizen of Puerto Rico, was prosecuted for criminal libeling in a District Court in Puerto Rico. Balzac declared that his rights had been violated under the Sixth Amendment to the U.S. Constitution as he was denied a trial by jury, since the Code of Criminal Procedure of Puerto Rico did not grant a jury trial in misdemeanor cases. In the appeal, the U.S. Supreme Court affirmed the judgments of the lower courts in the Island in deciding that the provisions of the US Constitution did not apply to a territory that ‘belonged to’ the United States but was ‘not incorporated’ into the Union. The case has become known as one of the “Insular Cases”. And as such, it looks like Balzac should be condemned by every American who understands the Constitution as a source of equal rights. Moreover, Balzac should be offensive to all who believe that judges overstep their constitutional authority when legislating from the bench.

    It is incomprehensible that, after four generations of American citizens born in Puerto Rico, Balzac still provides grounds for The White House to assert that Puerto Rico is an “unincorporated” territory — a ‘possession’ that is ‘separate from’, rather than ‘a part of’, the United States. And, of course, it is long overdue that a U.S. President asks his Attorney General to challenge the validity of Balzac whenever the application of the anachronistic “incorporation doctrine” is argued before a Federal Court.
    (After the news on March 8, 2013 about ‘gay-marriage constitutional rights’, we might want to bring Bill Clinton back to the White House to see if he could help in pushing the US Supreme Court to overturn the Balzac incorporation decision.)

    On March 2, 1917, Ninety-seven (97) years ago on next March 2, 2014, President Wilson signed into law the Jones Act. President Obama should seek the reversal of Balzac now. In so doing, he would acknowledge Puerto Ricans, and all Hispanics, as “real Americans”, in line with his recent Second Inaugural Speech. And we all will share with the framers of the Constitution, the principles and values on which our Nation was founded: “All men are created equal”, and we are equal in citizenship and entitled to claim those principles and values as our own. But at present, we will accept admission as a State of the Union without any further arguments nor any resentments.

    and a “Paradise…in the Caribbean” for every body to enjoy

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