Recently, fifteen United States senators and twenty-eight members of the House of Representatives urged the US Department of Justice to reject the Insular Cases, a series of racist decisions by the Supreme Court that created a legal framework justifying the antidemocratic colonial regime of the people of Puerto Rico and other US territories. This letter received support from members of both parties and from members who support different status formulas for the archipelago. For Right to Democracy, this broad consensus demonstrates how important this opportunity is to promote equity, democracy, and self-determination for the territories.
The doctrine of the Insular Cases legitimized the colonial governance of the new island territories acquired by the US after 1898 (Puerto Rico, Guam, the Philippines, American Samoa, and Hawaii) by creating and defining their own concepts of “incorporated territory” versus “unincorporated territory.” The category of “unincorporated territory” served to differentiate the new territories, inhabited as the judges described them as “savages” and “uncivilized people,” from the also invented category of “incorporated territories” which, because they had mostly white populations, were deemed deserving of all constitutional and political rights.
“The greatest obstacle to resolving Puerto Rico’s political status is not the lack of calls for change from our community, but the lack of recognition and action by the United States regarding its colonial policies. Repealing the Insular Cases would be a recognition and repudiation by the US judiciary of those colonial policies, and as we know, an essential step in solving a problem is recognizing that it exists,” said Dr. Adi Martínez-Román, co-director of Right to Democracy and professor at the University of Puerto Rico School of Law.
Neil Weare, co-director of Right to Democracy, explained that “Repealing the doctrine of the Insular Cases would imply returning to the understanding that existed before 1898 that the Constitution does not allow the US to acquire overseas territories and govern them as colonies. If that eventually results in statehood, independence, or some other status, it is another matter to be resolved in the political sphere through a process of self-determination. Nothing would happen automatically, but it would create pressure on the political branches to resolve the antidemocratic and colonial relationship. Just as overturning Plessy v. Ferguson helped create a new political space for the civil rights movements of African Americans and other minorities in the US, overturning the Insular Cases would create new political spaces for movements seeking democracy, equity, and self-determination.”
Weare and Martínez-Román were joined by two professors of law, who indicated that repealing the Insular Cases would mean the elimination of the distinction between incorporated and unincorporated territories.
“Before 1901, there was no distinction between ‘incorporated’ and ‘unincorporated’ territories. Therefore, repealing the cases would not make us ‘incorporated’ since this category was created by the same cases that would be repealed. The category itself is fiction,” expressed Professor Rafael Cox Alomar, professor of law at the University of the District of Columbia School of Law in Washington, DC.
“What the doctrine of the Insular Cases holds is a legal fiction that relegates us to the status quo of colonialism, which we all want to overcome. Eliminating this doctrine would result in the elimination of the categories of incorporated and unincorporated territory. It would not have the effect of incorporating us into the US political body,” added Prof. Christina Ponsa Kraus, professor of law at Columbia Law School in New York City.
Dr. Martínez-Román concluded that “at Right to Democracy, we do not claim to know what the best political status solution is for any territory. That is not our focus or mission. But after spending the past year speaking and collaborating with people from the five territories and the diaspora—whose opinions range from statehood to independence and other intermediate points—one conclusion is clear: people in US territories should have a voice and vote in decisions that impact their lives. The repeal of these cases is an important strategy to achieve that.”
Professor Ponsa Kraus is the author of the book “Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution” and the article “The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories.” Professor Cox Alomar wrote the book “The Puerto Rican Constitution” and the article “Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases.” Both serve as part of the Advisory Board of Right to Democracy.
0 Comments