The Contested Status of Puerto Rico


The Treaty of Paris, signed in December 1898, brought a quick end to the Spanish-American War after six months of hostilities. The treaty turned over Puerto Rico, the Philippines, and Guam to American control. Its terms sparked serious opposition in the United States Senate on the ground that the treaty just substituted American imperialism for Spanish imperialism, but it was eventually ratified by a 57-27 vote, just more than the two-thirds majority needed. In 1900, Congress passed the Foraker Act, which established a civilian government in Puerto Rico, under which the president appointed a governor and executive council that was paired with an elected House of Representatives with 35 members, and a nonvoting representative to Congress. The federal laws of the United States were extended to the island.

The “Insular Cases” that arose from these conquests were needed to define the relationship between Puerto Rico and the United States. These cases have spurred constant criticism in recent years for being “racist” in their content, which in turn has spurred renewed calls to reconsider these decisions. I will turn to the charge of racism later on, but first it is important to understand the issues involved—one on tariffs and trade and another on procedural due process in criminal cases.

The first of these disputes began with the question of whether federal tariffs could be attached to goods admitted into the United States from Puerto Rico, which had been ceded to the United States under the Treaty of Paris. After exhaustive deliberation, De Lima v. Bidwell (Bidwell was the collector of customs of the Port of New York for the United States) held that once Puerto Rico was ceded to the United States, it became a territory under the control of the United States and was not subject to tax as if a foreign nation, which advantaged Puerto Rico over foreign nations.

In the companion case, Downes v. Bidwell (1901), the plaintiffs sought to go one step further by insisting that Puerto Rico be treated as part of the United States, so that the lesser tax imposed under the Foraker Act was unconstitutional because it violated the constitutional requirement that “all Duties, Imposts, and Excises shall be uniform throughout the United States,” and because it allegedly violated the provision that held that vessels bound from one state to another were immune from tax. More generally, the case asked whether the revenue clauses of the Constitution extend to these newly acquired territories, which then prompted a discussion of how territories were treated under the original Constitution. The discussion dealt not only with the Northwest Territories but also with the Missouri Compromise and Dred Scott v. Sandford, in which Chief Justice Roger Taney had impressed a narrow interpretation on the power of Congress “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States” that allowed him to invalidate the Missouri Compromise.

In Downes’s exhaustive discussion that followed, Justice Henry Brown (writing for a five-member majority) noted that the Constitution offered no textual answer to this question. He then pushed Dred Scott aside and held that the Congress did not have to treat these newly acquired territories as though they were part of the United States. The decision did not, however, push all constitutional guarantees to one side, for he insisted that when the Constitution did state that “ ‘no bill of attainder or ex post facto law shall be passed,’ and that ‘no title of nobility shall be granted by the United States,’ it goes to the competency of Congress to pass a bill of that description.” Thereafter, he refused to answer the question of how far the first eight amendments of the Bill of Rights might be carried over.

Brown thus attempted to draw a distinction between fundamental individual rights that governed all political bodies and the technical tariff issues here. He then defended a strong distinction between “natural rights,” which are universal, and “artificial or remedial rights,” which are “peculiar” to Anglo-American law. On the latter side, he included the constitutional guarantee to the individual states of a republican form of government, which is peculiar to American institutions and not applied to “the original organization of the territories of Louisiana, Florida, the Northwest Territory,” and elsewhere, and the right to a jury trial, rejected in Dorr v. United States as a domestic, not a universal, guarantee. Armed with that distinction, Brown dismissed any fears that “an unrestrained possession of power on the part of Congress may lead to unjust and oppressive legislation in which the natural rights of territories, or their inhabitants, may be engulfed in a centralized despotism,” arguing that the fears find “no justification” in the past history of the United States or of Great Britain since the Revolution—with the sole exception of Dred Scott.

A similar pattern is found in the last of the key Insular Cases: a decision written by Chief Justice William Howard Taft in Balzac v. Porto Rico (1922), a criminal misdemeanor case in which the question was whether the federal constitutional guarantee of a jury trial applied to Puerto Rico. In the particular misdemeanor at issue, the defendant was alleged to have libeled Arthur Yager, the colonial governor at the time. The criminal code of Puerto Rico called for a jury trial only in felony cases, and Taft, following Dorr, held that the Puerto Rican law applied. Taft was no stranger to these issues, for in 1900 President McKinley had appointed Taft as a head of a commission that was to take over the transfer of the Philippines after the conclusion of the local insurrection that followed the end of the Spanish-American War. Taft’s decision in Balzac should in no way be regarded as a continuation of American imperialism designed to strip Puerto Ricans of their basic rights. Indeed, Taft took the exact opposite view. In line with the earlier decision, he noted that Puerto Rico had not been incorporated into the United States, as Hawaii was in 1898, and thus concluded that:

Congress has thought that a people like the Filipinos or the Porto Ricans, trained to a complete judicial system which knows no juries, living in compact and ancient communities, with definitely formed customs and political conceptions, should be permitted themselves to determine how far they wish to adopt this institution of Anglo-Saxon origin, and when. Hence . . . the United States has been liberal in granting to the Islands acquired by the Treaty of Paris most of the American constitutional guaranties, but has been sedulous to avoid forcing a jury system on a Spanish and civil law country until it desired it.

The decision therefore intended to defer to local communities for the operation of their local laws, given the obvious point that the right to jury trial, which may be an essential part of the American Constitution, did not fit into the Spanish or local traditions that held sway over Puerto Rico. In Dorr it had been noted that if a treaty (such as the treaty that brought Florida into the Union) contained a provision to make its citizens American citizens, it would honored. But that commitment was nowhere found in the Treaty of Paris.

It is surely possible to disagree on the differential treatment between incorporated territories and unincorporated territories, which rests on past practices without, as Brown had noted, a strict textual warrant. But why call the current patterns racist? In August 2022, the American Bar Association (later joined by the New York Bar) unanimously attacked the Insular Cases as resting “on racial views and stereotypes that have been long rejected and cannot be reconciled with [our] constitutional and democratic principles.” But the history is, as noted, far more complex. For example, note the use of the word “savages” in Downes, but the context undercuts any claim of racial animus because it was not referring to any particular people but was mentioned as part of the observation that it is dangerous to assume that Congress would agree that all individuals “whether savages or citizens” “however foreign they may be to our habits, traditions, and modes of life, shall become at once citizens of the United States,” which indeed is the position today.  Recall that the opening clause of the Fourteenth Amendment does not extend that guarantee when it writes that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Nor is the constant use of the term “aliens” in Downes reflective of anything other than a recitation of rules that aliens (in this case, a Frenchman) were not permitted to hold real estate in the United States—unless, of course, Congress decided to change the applicable rule.

Sadly, it misstates the overall situation to write, as my NYU colleague Maggie Blackhawk does in the current Foreword to the Harvard Law Review, ominously titled “The Constitution of American Colonialism,” that “Puerto Rico was offered neither the dignity of a civilized nation under the law of nations nor the fundamental rights and privileges of civilized people.” As noted above, the natural-law analysis in Downes was intended to protect just those fundamental rights, and subsequent legislation like the Jones-Shafroth Act of 1917 extended the rights of statutory citizenship to all Puerto Ricans born after 1898 if they chose it, and restructured Puerto Rico’s legislature. Further legislation turned Puerto Rico from an “organized territory” into a “Commonwealth” with the power to elect its own governor and appoint its own officials.

Yes, the status of Puerto Rico is subject to political contestation today. And on the legal front, the courts will have to deal with hard controversies, such as the status of Puerto Rican bankruptcies. But to brand the Insular Cases racist distorts the historical record without advancing the understanding on this contested issue.

© 2023 by the Board of Trustees of Leland Stanford Junior University

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There are 4 comments.

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  1. John H. Member
    John H.

    It says something about Ricochet – something positive, I think – that on this site the Foraker Act could be mentioned twice, in two different contexts, in less than a week.

    • #1
  2. The Reticulator Member
    The Reticulator

    Racist is a magic word, to be recited over a witch’s cauldron, and now in court deliberations.   I suppose it isn’t the only “ism” word that works like that.

    • #2
  3. jmelvin Member

    Interesting topic and writeup.  Thank you, @richardepstein !

    • #3
  4. Max Knots Member
    Max Knots

    Always a pleasure to read these explanations. A difficult pleasure that requires focus and careful rumination, but a pleasure nonetheless.

    • #4
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