Puerto Rico and the US territories: The need to resolve their constitutional and political issues

First of a two-part series

I have just finished reading 1st Circuit Judge Gustavo Gelpi’s book, The Constitutional Evolution of Puerto Rico and Other U.S. Territories (1898-Present). For anyone interested in learning about the constitutional development and political history of Puerto Rico and the other territories of the United States, Judge Gelpi’s book is an excellent primer on the subject.

The book discusses the history of the U.S. territories, particularly Puerto Rico, and their treatment (many times disparate and unfair) by the U.S government, especially the U.S. Congress and the Supreme Court, ever since they became territories of the United States.

The reader will learn that since the acquisition of Puerto Rico, Guam, and the Philippines in 1898 as a result of the Spanish-American War, the United States has dealt with the territories primarily through “the plenary powers of Congress over the territories,” as set forth in Article IV of the U.S. Constitution. Referred to as the “Territorial Clause,” this provision of the U.S. Constitution gives Congress literally unfettered powers over the territories, i.e., as if the territories are merely properties belonging to the United States.

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Soon after these islands became “territories” of the United States, a series of cases relating to Puerto Rico and the other territories were decided by the U.S. Supreme Court. They have since been referred to as “the Insular Cases.” Composed of literally the same justices that decided the now infamous “separate but equal” case of Plessy v. Ferguson, the Supreme Court decided that the U.S. Constitution does not apply “of its own force” to Puerto Rico and the other territories, unless they are destined for statehood.

As such, Puerto Rico and the other so-called “unincorporated territories” (e.g., Guam, the Virgin Islands, American Samoa) were deemed to be “not a part of the United States” for purpose of the imposition of duty on goods entering the United States proper from Puerto Rico. Presumably, only the 50 states constitute “the United States” for purposes of the U.S. Constitution. The Insular Cases have since been viewed as racist and demeaning to the inhabitants of the insular territories. For example, the Insular Cases viewed the inhabitants of the territories as uncivilized, primitive savages with alien customs, strange languages and cultures, and so forth.

Judge Gelpi’s book discusses the decades of frustration on the part of the people and leaders of the U.S. territories with respect to the way that Congress and the Supreme Court have treated the territories ever since the Insular Cases were decided over a century ago. It took Congress a very long time to enact meaningful laws that began to address the rights of U.S. citizens in the territories, including their right to govern themselves locally, as well as to be accorded some of the rights and privileges that are accorded U.S. citizens in the 50 states. For example, it took Congress over 50 years to enact federal legislation allowing Puerto Rico to draft and adopt its own local constitution. It also took Congress roughly 50 years to enact federal legislation granting U.S. citizenship to the people of Guam.

And to this day, the territories of Guam and the Virgin Islands are still governed pursuant to their respective Organic Acts, which Congress had enacted for those territories in 1950, and which have been amended by Congress several times since to, among others, allow for an elected territorial executive, to provide for a territorial supreme court and to have an elected delegate to the U.S. Congress. To the present, the territorial governments of Guam and the Virgin Islands remain creatures of federal legislation. Unlike the Northern Mariana Islands, these two territories still do not have their own local constitution. And although Congress has since permitted both territories to draft and adopt their own constitutions, Guam still has not done so. The Virgin Islands had earlier drafted a local constitution, but it was not approved by Congress.

To be continued

Jose Dela Cruz (Special to the Saipan Tribune)

Jose Dela Cruz is a former chief justice of the CNMI Supreme Court.