My father often likes to tell a story about his job orientation after accepting a new post in Los Angeles, to which my family moved in 2002 from New York. While being hustled from one meeting to another, a department administrator ran after him with a question about mixed-up paperwork. “César, are you a US citizen?” she asked. “Yeah—but it’s not my fault,” was my father’s brief response. What my father was referring to was the fact that as someone who was born and grew up in Puerto Rico, his US citizenship was the result of US imperialist expansion, and what he saw as a colonial status for his homeland. When retelling this story my father always recalls, with some regret, the administrator’s bemused face upon hearing this response. After all, all she needed was information to fill in a box in a form, not an anti-imperialist statement about the nature of his belonging in the US political community.
Yet what my father expressed in that brief and somewhat amusing interaction speaks to something deeper about the political status of the island he comes from and the people who live there. Indeed, the American citizenship that all Puerto Ricans enjoy (and I use the word “enjoy” in full knowledge of all the struggles millions of other Latin Americans have gone through trying to attain that coveted status of US citizen) was not only imposed upon them without their consent, but is also a profoundly unequal citizenship.
To understand its inequity, it is useful to begin by considering the history of the incorporation of Puerto Ricans into the American political community. From 1898—when the United States acquired Puerto Rico from Spain along with Cuba, the Philippines, and Guam—until 1917, Puerto Ricans were not considered US citizens. They were instead confined to a vague status as “Puerto Rican nationals,” while still being subject to US jurisdiction. This created problems in international relations and commerce for Puerto Ricans, not least because they could not obtain US passports and Puerto Rico was not an independent country. The Jones Act of 1917 attempted to solve these problems by granting United States citizenship to the residents of Puerto Rico.
But the US Citizenship granted to Puerto Ricans in the Jones Act carries two caveats. First of all, it is not constitutional citizenship. That is, it is not based on the Fourteenth Amendment, which dictates that any person born in the United States is a United States citizen, but rather only from the specific federal law that extended US citizenship to Puerto Ricans. Thus, while revoking my US citizenship (I was born in New York) would require going through the arduous process of amending the Constitution, taking away my father’s citizenship would only require getting a bill through Congress. The second caveat is that the constitutional conception of Puerto Rican citizenship, inextricably linked to the absurd concept of “unincorporated territory,” denies Puerto Ricans their right to sovereignty. These caveats, which may after all seem rather minor, reflect a long history of political discrimination that goes back to an infamous set of federal court cases from the early 1900s” the so-called “Insular Cases.”
Before the Spanish-American War, the status of newly acquired US territories generally followed a common pattern. The US would annex the territory. Then, over time, Anglo settlers would settle there and develop a government and a constitution (the territory thus becoming “organized”), the US Constitution would be extended (the territory would become “incorporated”), and eventually Congress would accept the territory into the union as a state. What the Insular Cases dictated, in essence, was that Puerto Rico was not bound to follow this familiar path. Instead, the Supreme Court ruled that Puerto Rico, as well as the other territories acquired from Spain in 1898 were different from previous territories in that they belonged to, but were not a part of, the United States. They were, in other words, colonies. Therefore, the US Constitution did not automatically apply in these areas. Instead, Congress could choose to apply only the clauses of the Constitution it saw fit.
Examining the cases in more detail, it comes as no surprise that the Insular Cases were decided by a court composed of almost exactly the same judges that decided the infamous Plessy v. Ferguson case in favor of legal segregation. The language used to articulate the political status of Puerto Rico and the other territories acquired in the Spanish-American War is linked to the explicitly racist treatment of the territories’ inhabitants. In Downes v. Bidwell (1901), for example, the court declared of the newly acquired territories that “if those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible” (emphasis added). It thus made no secret of the fact that relegating Puerto Rico to an inferior and colonial status—in which it was subject to the political control of the United States without having any power in the federal government—was a result of Puerto Ricans’ perceived racial unfitness to participate in the US political community.
The status of “non-incorporated territory” made a bit more sense before 1917, when Puerto Ricans still did not enjoy US citizenship. Before 1917, Puerto Rico was undoubtedly a colony, and its citizens were considered unambiguously foreign to the US polity as non-US nationals. When Puerto Ricans became US citizens, however, non-incorporation presented a legal paradox: how could US citizens be excluded from the rights and protections of the Constitution? It was this exact question that Jesús de María Balzac y Balzac, a Puerto Rican newspaper editor, asked in 1922, when he sued the federal government. He insisted that his conviction in a trial without a jury in Puerto Rico violated his constitutional rights. In effect, Balzac used his new status as a US citizen to challenge the deprivation of constitutional rights in Puerto Rico that had been allowed for by the Insular Cases.
Ruling against Balzac, the court, headed by former President William Howard Taft, reiterated that Puerto Rico was a “non-incorporated” territory of the United States and thus not protected by the Constitution. The court added—and this point is key—that this did not constitute an unconstitutional deprivation of rights, since it was based on place of residence and not on any status inherent to the citizens themselves. In other words, according to the court, seeing that a Puerto Rican acquired all the rights of any other citizen when they moved to a US state, it was not unconstitutional to deprive Puerto Ricans of their constitutional rights as long as they lived in Puerto Rico. By reinforcing the legitimacy of the selective application of the Constitution even in the context of US citizenship for Puerto Ricans, this ruling also left Puerto Ricans without constitutionally guaranteed citizenship. American citizenship for Puerto Ricans was thus enshrined only in a law, a much more easily revocable legal mechanism than the Constitution. This is the impact of the first abovementioned caveat to American citizenship among Puerto Ricans—it is more precarious than all other American “citizenships.”
The second caveat comes to light when we take Taft’s legal reasoning to its logical conclusion. According to Taft, if every Puerto Rican wanted to exercise their rights as a US citizen (by, for example, voting in elections for the President and the Congress that ultimately control Puerto Rico’s destiny) they would all have to move. The island would quickly be emptied of people. In the case of Puerto Rico, in contrast to any US state or independent country, political rights are dissociated from place. The individual right of each Puerto Rican to exercise their rights and powers as a US citizen does not coexist with a social right of all Puerto Ricans to exist as a sovereign political community.
Even with the granting of US citizenship, then, Puerto Ricans were left in a precarious legal limbo. They were brought into the US political orbit, but only half-way and without full constitutional protection. As the Supreme Court itself stated in Downes vs. Bidwell, Puerto Ricans were “foreign to the United States in a domestic sense.” Their citizenship could be revoked more easily. In granting Puerto Ricans US citizenship, but refusing to root that citizenship in constitutional rights, the US government chained Puerto Ricans to US hegemony, but made sure it could more easily get rid of that chain—and any responsibility it implied—when it wished. Puerto Rico’s non-voting congressional representative, Félix Córdova Dávila, put bluntly his despair with the absurdity of Puerto Rico’s status in a 1928 hearing before Congress:
“Are we foreigners? No; because we are American citizens, and no citizen of the United States can be a foreigner within the boundaries of the Nation. Are we a part of the Union? No; because we are an unincorporated Territory under the rulings of the Supreme Court. Can you find a proper definition for this organized and yet unincorporated Territory, for this piece of ground belonging to but not forming part of the United States? Under the rulings of the courts of justice we are neither flesh, fish, nor fowl. We are neither a part nor a whole. We are nothing; and it seems to me if we are not allowed to be part of the Union we should be allowed to be a whole entity with full and complete control of our internal affairs.”
Córdova Dávila’s poignant words hit the heart of the issue: second-class citizenship among Puerto Ricans is inseparable from the broader question of Puerto Rico’s political status and its relationship with the United States. The current political status of Puerto Rico—that of a non-incorporated territory—is intrinsically colonial and thus unsustainable. It is based on a precarious concept of citizenship, it deprives Puerto Ricans of their constitutional and democratic rights, and it denies their right to sovereignty. Puerto Rico is ultimately under the control of a government in whose workings it has no say. To recognize Puerto Rican sovereignty would mean to either empower Puerto Ricans with such a say or to get rid of that control altogether. Thus, either incorporation into the US political community as a state or (as I would favor) some form of independence would recognize the sovereignty of Puerto Rico and would accord its citizens with the dignity they deserve.
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