Colonialism is generally not a topic of discussion or analysis in constitutional law studies in the United States. Yet U.S. constitutional law has both shaped and been shaped by projects of colonial expansion and continues to have a material impact on Indigenous Peoples across the American continent. As we reflect upon Latinx Heritage Month, and on the heels of the anniversary of our continent’s pillage by European colonizers, the intersection between colonial rule and the case of Puerto Rican self-determination emerges as one of the many sites of ongoing anti-imperialist struggle.

Puerto Rico’s colonial status dates to the “discovery” of the American continent by European imperial powers 528 years ago. Like most of Central and South America, the island was under Spanish rule for over four centuries before being handed over to the U.S. in 1898 after the Spanish-American War. The nineteenth century was an era of territorial expansion for the U.S., which annexed territories both within and beyond the American continent. While most of the North American land it acquired during this period eventually gained statehood as part of the U.S. strategy to grow the reach of its Republic, other territories were annexed without any plans of extending enfranchisement to their constituents. Whether through the elimination of Native Peoples and their replacement by white European settlers or through the forced extraction of mineral resources and labor, the mosaic of legal categories assigned to U.S. land followed its original design of imperial domination. 

The Insular Cases of 1901 are the seminal holdings from the U.S. Supreme Court that set the foundation for Puerto Rico’s historical disenfranchisement. In Downes v. Bidwell, the U.S. Supreme Court analyzed the question of whether the newly annexed territory of Puerto Rico was part of the “United States” for constitutional purposes. According to the Court, Constitutional protections do not “follow the flag” to the island colonies invaded and annexed by the U.S. in the early 1900s, including Puerto Rico. In a perverse twist of logic, the Court held that Puerto Rico “is a territory appurtenant and belonging to the United States, but not a part of the United States.” Donwnes. Invoking a legal category that to this day continues to be applied arbitrarily to modern colonies, the Court reasoned that Puerto Rico is “foreign to the United States in a domestic sense, because the island had not been incorporated into the country.” Id.

In the Court’s view, incorporated territories formed an integral part of the United States and were on the path to statehood; unincorporated territories did not and were not. Instead, they merely “belong” to the United States.¹ Conveniently, both categories are considered “domestic territory” that falls within U.S. boundaries and is therefore subject to its sovereignty. Although the Insular opinions are fraught with these self-serving distinctions, a concurring opinion by Justice White suggested that for the legislature “to accept a cession of and permanently hold territory which is not intended to be incorporated” could conceivably amount to a “violation of duty under the Constitution.” See Downes. In other words, any unincorporated territory must one day become incorporated and be put on a path to statehood or must be released from U.S. sovereignty. Otherwise, the United States would  have no moral or Constitutional grounds on which to argue that it is not acting as a colonial empire. 

The Insular Cases thus gave sanction to U.S. imperialism by both withholding most constitutional protections from these territories and denying them statehood. See Burnett. The Supreme Court’s treatment of Puerto Rico is an illustration of how U.S. constitutional law has not only furthered but produced and codified colonialism. Under the Insular analysis, the U.S. Constitution fully applies to incorporated territories (like states and the District of Columbia, which itself lacks electoral representation), but only its “fundamental” provisions apply to unincorporated territories.

In material terms and despite these feeble concessions by the Court, unincorporated territories largely fall in a sui generis zone beyond the Constitution — Congress maintains almost unbridled freedom in its administration of and governance over these colonies, for an undetermined period of time. Some commentators, however, have proposed a disputed reading of the Insular Cases that implies the U.S. could, within its own judicial logic, one day relinquish sovereignty over an unincorporated territory, thus “deannexing” it; this option of deannexation thus allows the U.S. to carry on with its policies of extraction and disenfranchisement without having to extend a promise of eventual deannexation — a boundless worst of both worlds. See Burnett. While there is no constitutional process for states to leave the federation, if deannexation is not constitutionally precluded, the U.S. maintains an advantageous mechanism for imperial retreat. 

After the first fifty years of Puerto Rico’s time under U.S. control, and in the fashion of other “postcolonial” quasi-governments, authority over the island’s governance was eventually transferred to San Juan. In 1950, the U.S. Congress passed Public Law 600, which stated that the people of Puerto Rico would be entitled to “organize a government.” After a public referendum in which Puerto Ricans overwhelmingly voted in favor of Public Law 600, the Constitutional Convention of Puerto Rico drafted a constitution for the newly established Commonwealth of Puerto Rico. 

The U.S. Congress then insisted on taking its turn revising the document, after which Puerto Rico’s Constitution was proclaimed by the island’s governor, instituting legal self-governance on its people. This catapulted Puerto Rico into an unprecedented legal status that on the one hand entitled it to governance through self-rule, much like a state, while on the other remaining classified as unincorporated, unlike any other state in the Union. The Supreme Court itself has asserted that Public Law 600 and Puerto Rico’s Constitution were meant to extend to the island as much autonomy as it would be “normally associated with States of the Union” and that the U.S. legislative branch has constitutionally ceded authority over Puerto Rico’s local affairs.² Yet the millions of Puerto Ricans who remain within the island’s territory are still subject to indefinite and unlimited authority from Congress to legislate over them. 

While Puerto Ricans were afforded U.S. citizenship in the first half of the twentieth century, the fundamental problem of the island’s colonial status persists. Over a hundred years have passed since its forced annexation, yet Puerto Rico remains in a legal limbo of inequality and disenfranchisement relative to the rest of the U.S. polity. Although the shapes of U.S. colonial control over the territory have changed in both name and nature, unincorporated territories lack even “a modicum of sovereign independence from the federal government” and continue to be entirely “creations of Congress,” which retains plenary power over them.³

With the proliferation of months dedicated to celebrating different identities that have for too long been pushed to the periphery, we must not forget that representation does not equal liberation. Latinx Heritage Month calls us to look beyond statements from everyone from elected officials to corporations and from academic institutions to nonprofits that pay lip service to diversity without taking meaningful steps to address the historical harms that these communities have endured. As a territory perpetually relegated to an extra-constitutional realm, Puerto Rico remains without a path to either statehood or independence. Just as a rose by any other name would not change its scent, calling Puerto Rico a sovereign but unincorporated state does not change the nature of its legal status: a colony in everything but name. The Center for Constitutional Rights remains committed to supporting our comrades in Puerto Rico in their struggle for self-determination.

¹ United States: American Expansion and Territorial Deannexation, Cristina Duffy Burnett.
² Sanchez Valle, 136 S. Ct. at 1874. (quoting Examining Bd. of Eng’rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 594 (1976)).
³ 130 Harv. L. Rev. 1632 Harvard Law Review April, 2017 Developments in the Law The U.S. Territories. Chapter One. Territorial Federalism.