The meaning of citizenship in America has always been fluid. Different reigning political opinions during different periods of American history have created their own unique shifts in the understanding of American citizenship. The creation of an American empire (and the issues of territory that came with it) is one of the more monumental shifts in the complex understanding of American citizenship that has occurred. The question of how to treat the people of new American territories, as citizens, as foreign subjects, or as something in between, was a driving issue in American political thought at the turn of the twentieth century. This question of the standing of U.S. territories and the standing of their populations with regard to the United States were codified, to an extent, in the Insular Cases.

The Insular Cases created a new form of citizenship and a brand new standing for territories that gave Congress near unfettered control over the laws and lives in these territories. It even gave them the right to differentiate the treatment of the territorial peoples individually. The separate treatment and lack of representation of the people living in the U.S. territories were determined and rationalized by the perceived degree of separation between the cultures and races of the territorial peoples and that of the American mainland. Put another way, those living in the territories were deemed too un-American to be given full enfranchisement or even promised full enfranchisement in the American system.

There are numerous academic discussions surrounding why this new territorial standing of unincorporated territory and the legal doctrine of incorporation were necessary for the growing American empire; how the discussion of the cases chose to focus more heavily on the powers possessed by Congress with regard to territories instead of on the impact of the cases on the territorial peoples; and how the cases legitimize the creation of an American empire judicially. However, the impact on those living in the territories was not entirely overlooked in the deliberation that led into and was a part of the Insular Cases.

Citizenship and the rights of territorial peoples were discussed at length by Congress, specifically in the build-up to the passage of the Foraker Act. And while the Justices of the Supreme Court were quieter on the matter, they too directly discussed the impact of the cases on the people living in the territories. Unfortunately, this impact was deliberated through the lens of Progressive Era ideals of expansionism resulting in the infantilization and demeaning of territorial peoples as uncivilized, creating a rationalization for Congress to legislate for the people living in the territories. The political feelings of the time also pushed for a specific view of what was American and believed that the perceived separation between the people living in the territories and those of mainland America, both racially and culturally, meant that those territories could not be admitted into the Union as they were.

What resulted from this was separate for every territory impacted by the rulings of the Insular Cases and the imperial expansion they legitimized, but for the purpose of this paper, the focus will be on the peculiar situation of Puerto Rico.

The Insular Cases established that Puerto Rico was an unincorporated territory and as such was considered foreign, in a domestic sense. The unique position Puerto Rico continues to inhabit to this day extends U.S. citizenship to the people living in Puerto Rico but not all of the rights associated with constitutional citizenship, placing them in a position of statutory citizenship subject to the control of Congress indefinitely. Puerto Rico’s status as an unincorporated territory is a situation described by Justice Harlan in writing his dissent in the Downes v. Bidwell case as “wholly inconsistent with the spirit… as well as with the words of the Constitution.” The continual relegation of the citizens of Puerto Rico to that of a lower class of citizens provided only some of the rights guaranteed in the Constitution, a status developed in the Insular Cases because of racially and politically motivated opinions that Puerto Ricans were not American enough to govern themselves or be extended the full rights of citizenship, provides direct insight into how rationale and decisions that are based in antiquated ideologies can continue to have a heavy impact on the lives of U.S. citizens to this day.

This argument will be presented in three sections. The first will explain the Spanish-American war, the prevailing political and social opinions of the time, and the crisis of empire it created as context for the Insular Cases. The second will dissect the most influential of these cases on Puerto Rico, with a specific focus on the ideology behind the decisions and the primary motivations and issues revealed through them. The third section will establish what precedents the Insular Cases created and how the Insular Cases affected Puerto Rico specifically, moving forward to show how the rulings of the cases were held up, and impacted Puerto Rico’s territorial standing and the standing of its citizens over time, ending with a modern snapshot of Puerto Rico’s situation and how it continues to inhabit a position created by century-old ideology. 

Progressive Era Ideology, The Spanish American War, and New Territories

Understanding Progressive Era views on race helps to contextualize America’s undertaking of the Spanish-American War, the debates in Congress about how to treat the newly acquired territories, and the prevailing opinions that influenced the decisions of the Supreme Court in the Insular Cases. One of the biggest scientific fads of the Progressive Era was Eugenics. Eugenics influenced not just scientific discourse at the time but societal, and political discourse as well. Specifically, Eugenics influenced the debate surrounding immigration and restrictions based on race. The ideas presented by Eugenics were supported by people across political lines, specifically the pseudo-scientific belief in “the primacy of heredity, human hierarchy instead of human equality, and the idea that human heredity must be socially controlled.”  The difference between the different sides of the political spectrum, conservative, liberal, and progressive, was how to use the ideas of Eugenics to influence immigration and other issues. Which specific races were threatening, and which races were similar enough to allow to join America. 

There were those that did not support race-based immigration restrictions, but they were a very small minority. Even those that were racial egalitarians often supported race-related restrictions on immigration so as to avoid racial conflict that they believed was inherent in human nature.

Eugenics was central to the ideas of American Exceptionalism present during the Progressive Era. The idea of a superior American stock, based on the Anglo-Saxon race, was integral to American Exceptionalist ideas. Eugenics also dictated the proposed restrictions against races that were seen as threatening to this superior culture and race. The fear during the Progressive Era was that groups of less civilized races would inundate America and in the process wipe out the Anglo-Saxon race and the superior, uniquely American culture that the race represented. This connection between race and the American identity was so powerful during the Progressive Era that there were scholars (including future president Woodrow Wilson) who posited as early as 1889 that the Democratic ideals and the governmental structure of America were due directly to the race of the founders of America. This idea helped spread the belief that race and culture were interchangeable because aspects of a culture could be tied to race. This basic contention led to the further idea that race could determine whether Democracy would succeed or fail for a specific group of people.

Another ingrained belief that was posited at the time was that of recapitulation theory, which in essence stated that as humans grew they mirrored the evolution of the human species. This was used to explain how children were innately less civilized than full-grown adults and instead resembled less developed savages. In the inverse, this idea helped fuel the paternalistic nature of American exceptionalism. “Savage” races were similar to children and needed paternalistic protection and education from the superior, more evolved American, Anglo-Saxon race and culture.

This very basic idea at the center of Progressive Era thought socially, scientifically, and politically helped promote the ascendance of American Exceptionalism and was the underlying structure in which the arguments on how to treat the territories took place. This pervasive belief also contextualizes the importance placed on Puerto Rico’s specific racial status in the Congressional debates surrounding the Foraker act and is responsible for the underlying rationale that is rarely explicitly stated in the Supreme Court’s decisions in the Insular Cases, but has a clear impact.

American expansionist ideology can also trace its origins to American exceptionalism. American exceptionalism combined with the Victorian idea of the white man’s burden to create an American belief that it was a God-given duty to spread freedom and American ideals to those people considered less developed. The political battle between those for and those against American expansionism became heightened by the Spanish-American War. The U.S. had been acquiring and settling territory for all of its history, but the Spanish-American War was the first time that the U.S. had gained overseas territories that were already colonized, and as such, presented challenges that had not been present in American territorial expansion before.

The U.S. engaged in the Spanish-American War for many reasons. The most prevalent political motivation for the war, at the time, was a narrative characterizing America as being pulled into the war against its will to help liberate the Cuban people from oppressive Spanish rule that played on the political ideals of American exceptionalism and expansionism. In actuality, while these ideals did play a big factor in the American public’s support for the war and president McKinley’s rationale for entering into the war, there were economic and strategic concerns that also played a large role in America’s decision to go to war with Spain.

Once the U.S. had won the war and Spain had signed over its territories, a new debate about what to do with the acquired territories exploded in America. Many felt that it was un-American to occupy the territories as the Spanish had. Others felt that releasing the territories would weaken the U.S., allowing for foreign spheres of influence to gain a footing in the Western hemisphere, threatening America’s security. This focus on strategic interests is what drove the U.S. to acquire Puerto Rico. By taking Puerto Rico from Spain, the U.S. effectively ended Spanish influence in the Western hemisphere. On top of the strategic reasons for keeping the territories, there were economic and social reasons to keep the territories as well. With the acquisition of new territories, specifically the Philippines in the Pacific, many American businesses saw an opening to break into lucrative Asian markets and a host of other opportunities. Anti-expansionists took the opposite view and believed these new territories would create economic competition that would be detrimental to U.S. businesses. 

American exceptionalism also pushed the idea that America had a duty to keep the territories because the people living there could not govern on their own, and if the U.S. left, European powers would move in. American exceptionalism helped give rise to the idea that it would be better for local populations if America ruled these territories rather than European nations because America’s superior values could be taught to the native people so that they could someday become civilized enough to govern themselves. This rhetoric surrounding the benefit and duty of America to help the less civilized peoples in the territories was based on selfish motivations. The U.S. was dealing with a crisis of identity during the Progressive Era, the acquisition and treatment of the territories may have been rationalized with positive, selfless rhetoric, but in actuality, it was designed to solidify American identity and the idea of American exceptionalism in the American political sphere at home, not for the benefit of the territories or the people inhabiting them. 

Many on the anti-expansionist side of the argument believed that it was wrong to rule over the people of the territories without the express intent of granting them their freedom from the outset, which was the precedent that had been established through the treatment of all American territories annexed before the Spanish-American War. Others, specifically in the South, believed that the people of the territories were too racially different and implicitly inferior, to be allowed to join the Union.

Congress deliberated intensely on how to treat the new territories and the peoples that inhabited them. The new territories created a conundrum that the U.S. had not faced before. In territories that the U.S. had annexed prior to the Spanish-American War, the intent had always been to settle them with white Americans and eventually integrate them into the Union as States. There was precedent for Congress ruling the territories created by the United States, and even precedent for denying rights to non-whites in these territories, but with the express intent that those in the territories would eventually gain the full rights of citizenship as the territories became white enough, and by extension, American enough, to rule themselves and be allowed into the Union. The territories acquired as a result of the Spanish-American war created an imperial problem wholly different from the problems of settler expansion. There was no intent to settle the acquired territories with white Americans so precedent for how to treat these territories had never been established.

With regard to Puerto Rico specifically, the majority of congressional deliberation focused on the economic issues surrounding the treatment of the territory, but the morality of holding the inhabitants of Puerto Rico in colonial servitude also played a role. Puerto Ricans' “racial classification and biological proximity to the norms of whiteness was ambiguous,” and became the subject of fierce Congressional debate. Within Progressive ideas about race, the racial standing of a people dictated to what extent they were civilized and by extension worthy enough to govern for themselves or be integrated into the U.S.

All of the inhabitants of the territories gained in the treaty with Spain were viewed as non-white peoples and therefore considered inferior by all sides of the political spectrum. Puerto Rico, however, was close enough in proximity and had been integrated so heavily, for so long, with the European Spaniards that the level of their inferiority, and how similar they were to mainland Americans, was in question.

The Foraker Act was the proposed law that would dictate how America would treat Puerto Rico and what status its citizens would have under American control. While U.S. citizenship was originally proposed in the bill, opposition in the Senate eventually resulted in the inhabitants of Puerto Rico being classified as “citizens of Puerto Rico and as such entitled to the protection of the United States.” This framing made Puerto Ricans subject to the United States and placed them under U.S. protection internationally, but did not qualify them as actual U.S. citizens. Democrats in Congress opposed this act in favor of Puerto Rican home rule and a traditional territorial style of government, expressing the feeling that the Foraker act “dooms to poverty… a people whose helplessness appeals… to our justice and magnanimity.”

This act stretched the traditional powers of Congress in order to create, expand, and rule an overseas American empire whose territories had dramatically different needs from previous territories. The constitutionality of the treatment of the territories, the standing they held with regard to the U.S., and Congress’s power to rule them would be brought to the Supreme Court in what collectively became known as the Insular Cases.

The Insular Cases

An analysis of the Insular Cases that impacted Puerto Rico most is important to understand the scale and magnitude the results represented and the reasoning behind the decisions. The convoluted and at times seemingly contradictory decisions of the court provide insight into the dramatic shift in precedent the cases created and how controversial, even at the time, the rulings were. The power they imbued Congress with was far-reaching in consequence and treated with apprehension and concern by opponents to the decisions. The fact that different rationales were used by different justices to come to the rulings by plurality rather than a majority in most cases also provides insight into how fractured the justices and the political community as a whole were on the standing of the new territories.

The major questions that came up in the Insular Cases regarded duties. Whether Congress had the power to impose them on goods between the U.S. and its territories or not, and whether the U.S. territories were in fact foreign or domestic in the legal sense. In the case of De Lima v. Bidwell, it was decided that the territories of the United States ceded by Spain in the treaty concluding the Spanish-American war were indeed domestic. However, the following case of Downes V. Bidwell concluded that the territories were precluded from the full protections and stipulations of the constitution. Leading to the famous idea of the territories being “foreign to the United States in a domestic sense.”

This conclusion was not reached easily and was explained with differing legal arguments by different judges of the plurality of the court. Tracing the judges’ written opinions in concurrence or dissent across the Insular Cases can help shed light on the issues that were valued enough to warrant discussion by the court and how the different Supreme Court Justices sought to deal with them.

There are two relative camps that emerged in the Supreme Court with regard to the Insular cases. On one side there were the Justices Harlan, Brewer, Peckham, and Chief Justice Fuller. Their basic contention was that Puerto Rico and the other U.S. territories gained in the Spanish-American war were integrated domestic territories the moment the U.S. signed its peace treaty with Spain and should be treated as such with regard to the constitution. On the other side of the issue were Justices Gray, White, Shiras, and McKenna. They believed that the territories were foreign and should be treated as occupied territory until an act of Congress specifically integrated the territories into the United States proper. In the middle, was Justice Brown. Justice Brown was the only justice to swap from one camp to the other depending on the case being heard during the Insular Cases and specifically became the one responsible for the unclear constitutional standing of the U.S. territories gained in the Spanish-American war.

While the other Justices in the Supreme Court held rather rigidly to the ideas that either the territories were considered domestic, integrated territories, immediately upon the signing of the treaty with Spain and were subject to all the rights and restrictions of the constitution, or, that an act of Congress was required to integrate the territories into the U.S. proper and until that point, they were to be treated as occupied territory of the United States controlled wholly by the discretion of Congress. Brown found a middle ground. He agreed that the territories were indeed considered domestic territory with the signing of the treaty with Spain, but did not believe that they were due all the protections and restrictions of the constitution. Thus, he instituted the claim that some sections of the constitution applied immediately upon the acquisition of the territories from Spain and that some did not until Congress expressly incorporated the territories into the United States. This middle ground created a marked expansion of Congressional power and authority.

This middle ground that Brown was responsible for creating left enough ambiguity for Congress to act as it pleased in many regards to the territories and left the exact ways in which the constitution applied to the territories for future court arbitration. In the Fuller camp of the court, the standing of the territories and the abilities of Congress to legislate for them were clearly defined. It was U.S. sovereign territory and as such specific rules applied to it and the power Congress wielded over the territories was defined in the Constitution. Similarly, in the White camp, the territory was defined as foreign until admitted by Congress and its status and Congress's power over it were clearly defined. By splitting the difference between these two clearly defined views Brown left the specifics of how much of the constitution applied to the territories intentionally undefined. In this way, Congress could legislate vast amounts more for the islands because they were neither foreign nor domestic, so almost no rules applied regarding what Congress could or could not legislate until ruled on by a court.

This left those citizens living in the territories in a precarious position. They had the title of U.S. citizens, but no guarantee of any of the protections or rights of U.S. citizens because the constitution may or may not apply to their territory in any specific instance. In this way, citizenship is almost the lost issue of the Insular Cases. It is discussed briefly in the writings of the majority opinion of Brown in the Downes Case, positing that Congress requires the ability to legislate the territories separately from the rest of the U.S. because of the perceived cultural and racial differences and implicit inferiority of the territory's inhabitants, but the issue is largely glossed over by the court in its written opinions. 

The ability to dismiss the impacts of the Insular Cases on the peoples of the territories, including Puerto Rico, stems directly from the previously discussed idea of American Exceptionalism based on the Progressive Era understanding of race. The peoples of the territories were inherently inferior and therefore were regarded in two ways, as a threat to American purity and superiority, and as races that were similar to children, needing the guidance and protection of the U.S. In both of these views, the people of the territories, and the impact of the Insular Cases on them, were of secondary concern to the impact the cases would have on the power structure of the government of the United States. Because of these skewed understandings of race, the impacts of the cases on the people of Puerto Rico and other territories were rarely considered worth discussion, and when they were, it was in a twisted, imperialist sense that infantilized the people of the territories.

The biggest issue discussed by chief Justice Fuller’s camp with the legal gray area created by Brown, had nothing to do with the legal rights of the inhabitants of the territories, but instead on the possible expansion of Congressional powers the cases created and the ways they infringed on the Constitutional intent of states rights. The people of the territories were not valued enough to warrant a defense based on the impacts of the case on their quality of life and rights. Brown seemed to understand that this was the concern, specifically iterating that the ruling in Downes v. Bidwell did not intimate Congress’ ability to lay duties on trade between states in a way that would clash with the uniformity clause of the Constitution, but instead argued that the uniformity clause did not apply to U.S. territories at all.

The newly formed ambiguity surrounding the standing of American territories, predicated on tenuous legal arguments that were instituted by a slim and often splintered majority, allowed for each territory to be legislated separately. They did not fall into either camp of fully domestic or fully foreign lands so legislation could be passed for one territory that was not applicable in another depending on the feelings towards that specific territory. Congress had absolute power and as it was discussed by Brown in his opinion in the Downes Case this was specifically to deal with the dramatically un-American nature of the peoples living in American territories, the exact differences in race or similarity to the valued American culture dictated to what extent each territory could gain rights and autonomy. 

Even at the time of the cases the ambiguity developed by the decisions was regarded with apprehension. The New York Times covered the cases extensively and this intensity of coverage seems to indicate that the cases were clearly present in the American consciousness when they were being discussed in the Spring and Fall of 1901. The main focus of many articles was to explain the convoluted cases to the American public after the Supreme Court handed down its decisions. Other articles instead focused on the reactions of those in government to the decisions. Congressmen and departments in the government alike expressed disappointment at the lack of clarity in their precedents created by the cases. The narrow margins of the cases and the seemingly contradictory nature of the rulings lessened the power and legitimacy in some commentators’ eyes. 

Some in the public sphere, however, support the Supreme Court’s decisions on the cases. J.W. Foster, the ex-Secretary of State at the time supported the decisions because he felt they provided the necessary leeway for Congress to deal with the American territories in ways he believed to be necessary. Foraker, the senator behind the Foraker Act, also lauded the decisions as a vindication of Republican political ideology, and a solidification of the idea that America had as much sovereign power as any other government, implicitly referring to the fact that the cases allowed the U.S. to create an empire like many European nations already had.

In Puerto Rico, the decisions were viewed with dismay. There was a general feeling that the Supreme Court had ruled against the interests of Puerto Rico in every case. There was considerable unhappiness and frustration at the taxation that would be leveled by the Federal government on Puerto Rico, the populace had hoped to gain free trade with the mainland, but the lack of guaranteed citizenship in the decisions was equally upsetting. One representative of a sugar shipping company based out of Puerto Rico summed up the mood concisely when asked for comment saying, “The Constitution of the United States applies when against us, but not when in our favor… This legislation appears to be for Americans and against Porto Ricans.”

There has been academic study devoted to the necessity of the creation of the classification of unincorporated territories as an extension of the inevitable expansion of American power and influence. If the creation of an American empire is viewed as necessary for the continual growth of America then the creation of unincorporated territories serves a vital purpose. Christina Duffey Burnett in her article United States: American Expansion and Territorial Deanexation shows that America had no mode for the relinquishment of territory before the Insular Cases. With the development of America’s empire, it became necessary to create a way to release territory the U.S. gained, otherwise there would be substantial opposition to any territorial expansion overseas. The Insular Cases provided the ability to do this with the creation of unincorporated territories that did not implicitly promise eventual statehood into the Union and allowed for Congress to release territories vital to the expansion of American territory and power going into the twentieth century.

Regardless of necessity or lack thereof, the Insular Cases clearly led to the withholding of rights for those deemed un-American. Puerto Rican citizens have been denied full rights as citizens since the Insular Cases, and the issue continues to impact the lives and rights of American citizens from Puerto Rico despite the fact that the decisions that created the precedent to withhold these rights were based on the ideas of, and decided in the context of, the Progressive Era, which had ideas surrounding Eugenics and race baked into almost every facet of society. 

Legacy of the Insular Cases for Puerto Rico

The precedents created in the Insular Cases, and the territorial standing of Puerto Rico they established, have been reaffirmed numerous times in the century following the cases. Early cases such as Gonzalez v. Williams in 1904 strongly reaffirmed the inhabitants of Puerto Rico as non-citizen nationals of the United States and even as the United States began legislating paths to U.S. citizenship for Puerto Ricans, the full rights of citizenship failed to follow.

Over the course of Puerto Rico’s history as a U.S. territory, there have been eleven separate citizenship laws passed by Congress that have extended three different kinds of citizenship to Puerto Ricans. We have already established the specific Puerto Rican citizenship that was separated from the United States but still made it so that the citizens of Puerto Rico were under the control of the United States that was extended to Puerto Ricans through the Foraker Act. As early as 1906, however, the United States began allowing individual Puerto Ricans to apply for naturalized citizenship as if they were foreign citizens. In 1917, on the verge of America’s involvement in World War One, the Jones Act extended naturalized citizenship to all Puerto Ricans. In 1940, again on the verge of American engagement in a world war, this was replaced with the Nationality Act which provided birthright citizenship to all Puerto Ricans. In 1947 Congress allowed Puerto Rico to elect their own Governor, and in 1950 Congress passed a law that allowed Puerto Rico to create a territorial constitution. What followed was Puerto Rico enacting the Commonwealth Constitution of Puerto Rico in 1952.

This, from the outside, looks like huge progress for Puerto Rico towards the full rights and privileges of constitutional citizenship. Unfortunately, Congress and the Supreme Court continuously established that none of these laws changed Puerto Rico’s territorial status, leaving it as an unincorporated territory. Early in this chronology of legislation activists in favor of incorporation had brought to the Supreme court the argument that the Jones Act was implicit incorporation on the part of Congress. The Supreme Court ruled that it would require an explicit act of Congress to incorporate Puerto Rico and change its territorial status, a stipulation that had not been previously enumerated. This ruling, requiring an explicit law from Congress to change Puerto Rico’s territorial status, was reaffirmed in 1989 when a Congressional Research Service Memorandum established that Puerto Rico’s birthright U.S. citizenship was not constitutional citizenship but instead statutory citizenship, which was subject to the plenary authority of Congress. The fluidity of Puerto Rican citizenship was shown when activists attempted to give up their U.S. citizenship, citing the fact that, for citizenship purposes, Puerto Rico was not considered part of the U.S. and Congress determined that for the purposes of revoking citizenship Puerto Rico was considered part of the U.S. This made it so citizens could not revoke their U.S. citizenship and showed just how arbitrarily Congress could define the type of citizenship Puerto Ricans had and what rights came with it.

Resistance to the territorial standing of Puerto Rico and against American control over the island has been around since the signing of the Treaty of Paris that ended the Spanish-American War. However, there is a distinct increase in political action and protest against the standing of the island during the 1930s. On the Island of Puerto Rico itself, the Nationalist party shifted to armed struggle against the Puerto Rican government and the United States control over it in 1930. Also in 1930, the Puerto Rican flag became a symbol of the Nationalist movement and was outlawed in an effort to suppress the anti-American sentiments of the nationalist movement from spreading throughout the island. When attempts were made to legislate a new official flag of Puerto Rico in 1932, the result was a storming of the Puerto Rico Capitol by pro-independence protestors that resulted in the death of a teenage boy. The legislature was unable to come to a decision on a new official flag before adjourning their session after the riot and the issue was left for future legislation. The nationalist movement was bolstered throughout the 1930s by the deadly responses of the U.S.-controlled Puerto Rican government to peaceful protests in the Rio Pedras Massacre and Ponce Massacre. The actions of the U.S. even drove long time supporters of the U.S. like Juan Huyke, the former Puerto Rican commissioner of education, to publicly criticize the U.S. policy towards Puerto Rico, or lack thereof.

Perceived, and actual corruption in the Puerto Rican government to better support U.S. interests in the region in the 1930s led to a political statement encouraging Puerto Rico to seek independence from the U.S. in one of two murals painted by artist Rockwell Kent in the U.S. Post Office Department Headquarters in Washington D.C. The murals drew outrage from across the nation but most strikingly from Puerto Ricans themselves, who were upset by the people of Puerto Rico only being portrayed as dark-skinned. This outrage ties into the bigger issue for Puerto Ricans during the Great Depression. There was an increasing view of Puerto Ricans as liabilities and drains on the Federal welfare system during the Great Depression, with increasing comparisons to the African American communities specifically in New York. This was a problem for Puerto Ricans living in the United States, because of the Jim Crow sentiments of the era it was imperative for the group of Puerto Ricans living in the U.S. (specifically in New York where some of the largest communities of boricuas existed in the U.S.) to separate themselves from African American communities and to foster social and political sentiments that they were valuable, upright American citizens. This issue ties directly to the early issues regarding race that Puerto Ricans dealt with upon the annexation of the territory by the United States but now it was impacting Puerto Ricans' ability to work and gain economic advantage from moving to the mainland U.S. It was stance exhibited by the community of boricuas (Puerto Ricans or those of Puerto Rican descent living in the U.S.) showed that improving the societal view of Puerto Ricans in any way necessary was more important than the reifying of racial inequality in 1930s America.

The spokesperson for this issue and the Puerto Rican people became a Congressman from Harlem, Congressman Marcantonio. He pushed for more rights for Puerto Rico, not because of the Puerto Ricans themselves, but because it would help legitimize boricuas as upstanding U.S. citizens by extension and improve the prospects of boricuas that made up a huge part of his district. Thus, some of the earliest support politically in the U.S. for more Puerto Rican rights was focused more on the Puerto Ricans living in the U.S. than on the predicament of Puerto Rico itself.

The U.S. intervention in Puerto Rican politics that had created outrage in the 1930s, continued into the Cold War, and the resistance to the U.S. control over the government continued along with it. In 1950 there was an island-wide uprising of Nationalist sympathizers that was brutally suppressed by local police and the National Guard. Also in 1950, two Puerto Ricans attempted to assassinate President Truman. These actions paired with the growing tension of the Cold War led to the U.S. supporting the campaign to link the nationalist movement on the island to Communism by pro-American political opponents to better justify action against the Nationalist party.  This suppression of the nationalist movement by the U.S. and its sympathetic government in Puerto Rico may be the cause of such low support for independence from the U.S. on the island (support for independence has never garnered more than 5.5% of the vote in any referendum held in Puerto Rico to change its territorial status) but there have always been a greater number of Puerto Ricans that support closer ties to the United States, rather than separation, despite the unjust treatment of the island at the hands of the U.S. government.

The biggest reason that the vast majority of Puerto Ricans do not support independence from the U.S. is because of the fear of losing U.S. citizenship. The ability to move to the U.S. and the ability to, even partially, qualify for the support of U.S. social programs are strong economic incentives to keep their American citizenship. Even if the citizenship provided to Puerto Ricans does not entail the same rights as the citizenship given to those living in the U.S., the opportunities it provides (specifically economically) make it worth staying linked to the U.S. For many Puerto Ricans, the rights and status provided by U.S. citizenship are inextricably linked to economic mobility and opportunity, they are one and the same. 

This does not mean that Puerto Rico would like to become a state necessarily. There is a fear on the island that seeking statehood (if Congress would even allow them to have it which is doubtful) would result in the loss of the culture of independence and the linguistic identity that is separate from the mainland U.S. What the people of Puerto Rico want, is more rights associated with their U.S. citizenship. Which, because of the precedents set by the Insular Cases, is nearly impossible to gain and retain their distinct culture of separation from mainland America. To this day, if Puerto Ricans want the full rights of citizenship, they have to be willing to give up parts of their culture to better fit with mainland America to get them.

The Ongoing Problem

Puerto Rico continues to be an unincorporated territory to this day. An amicus brief in 2016 established that Puerto Rico is still subject to the control of the U.S. by solidifying that Puerto Rico holds no sovereignty in an Appellate Court case regarding whether Puerto Rico could take action without the approval of Congress to deal with its growing debt crisis. And as recently as April 21, 2022, the Supreme Court issued a ruling that Puerto Rican citizens are not entitled to the full benefits of the federal welfare system as long as they are living in Puerto Rico. This separate and arbitrarily defined set of rights extended to Puerto Ricans is utterly out of place in twenty-first-century America. The entire premise for the withholding of the full rights of American citizens to Puerto Ricans is based on racially motivated ideologies that were legislated as unconstitutional during the civil rights era. Despite this, the territorial standing created based on outdated racial beliefs persists decades after those beliefs were established as unconstitutional.

There has been an argument made, notably by Russell Rennie in his article A Qualified Defense of the Insular Cases, that the cases have modern benefits for Puerto Ricans. His argument recognizes the racist basis for Puerto Rico’s unincorporated status, and the historical arguments against the decisions of the Insular Cases specifically. However, he contends that the modern level of autonomy the cases have provided to Puerto Rico and other U.S. territories to legislate in ways that might run counter to the U.S. constitution, allows the territories to protect and adhere to their traditional cultures and complicates the legacy of the Insular Cases; positing that the doctrine established by the Insular Cases may even be necessary for territories like Puerto Rico today. While there is merit to the argument that the people of Puerto Rico have found a way to use the doctrine established by the Insular Cases to their advantage in certain cases, the article overlooks the greater issue created by continuing to allow the denial or withholding of rights to a certain subset of United States citizens in modern America.

Justice Harlan, at the time of the Insular Cases, was on the right track with the dangers the doctrine the cases created posed for America. In Harlan’s dissent on many of the Insular Cases, he presents the opinion that the rulings of the Supreme Court in the Insular Cases and the doctrine that it created undermines the constitution. An analysis of his written dissents in the insular cases argues that Harlan’s written dissents lay out exactly how withholding the constitution from any land constituted as part of the U.S. creates a crisis in republican government. Further, Harlan argues that the decisions of the Supreme Court in the Insular Cases go against the principles of the constitution in favor of using the silence of the Constitution on specific issues to expand congressional power in ways that run counter to the intent of the founders of the country in favor of the prevailing political culture of the moment; this muddies the ability to protect against the arbitrary power of government. He characterizes the founders' intent as building the U.S. government for the benefit of “the people” which he believes was intended to be every person living in the U.S., including its territories. 

This argument that the Insular Cases allow for the arbitrary expansion of government and weakens the protections intended for “the people,” has, if anything, only gotten stronger over time as the racial ideas of the Progressive Era were legislated as unconstitutional over the course of the twentieth century and the ideas of Eugenics disproved scientifically. Leaving the doctrine established by the Insular Cases standing, keeping Puerto Rico as an unincorporated territory over which Congress still exerts arbitrary power to a certain extent, legitimizes the idea that prevailing political feelings of the moment can outweigh constitutional intent and legitimizes the idea that it is constitutionally valid to hold a certain group of “the people” in a position with fewer rights than others based on outdated ideas of racially motivated citizenship and the need to protect American imperial expansion.

Works Cited

1. Acevedo, Nicole. “'Discriminatory': Puerto Ricans Decry Supreme Court Ruling Allowing Exclusions.” NBCNews.com. NBCUniversal News Group, April 21, 2022. https://www.nbcnews.com/news/latino/discriminatory-puerto-ricans-decry-supreme-court-ruling-allowing-exclu-rcna25399.

2. Alejandro J. Anselmi González *, "STUDENT NOTE/COMMENT: The Flag Can Travel but the Constitution Must Ask Permission: How the First Circuit and the District for Puerto Rico Commit to Equal Protection Without Abandoning the Insular Cases Doctrine," University of Miami Inter-American Law Review, 53, 87 (Winter / Spring, 2021).

3. Andrew Kent, "ARTICLE: THE JURY AND EMPIRE: THE INSULAR CASES AND THE ANTI-JURY MOVEMENT IN THE GILDED AGE AND PROGRESSIVE ERA," Southern California Law Review, 91, 375 (March, 2018).

4.  Brown, Henry Billings, and Supreme Court Of The United States. U.S. Reports: De Lima v. Bidwell, 182 U.S. 1. 1900. Periodical. https://www.loc.gov/item/usrep182001/. 

5. Brown, Henry Billings, and Supreme Court Of The United States. U.S. Reports: Dooley v. United States, 183 U.S. 151. 1901. Periodical. https://www.loc.gov/item/usrep183151/. 

6. Brown, Henry Billings, and Supreme Court Of The United States. U.S. Reports: Downes v. Bidwell, 182 U.S. 244. 1900. Periodical. https://www.loc.gov/item/usrep182244/. 

7. Burgess, John W. “The Decisions of the Supreme Court in the Insular Cases.” Political Science Quarterly 16, no. 3 (1901): 486. https://doi.org/10.2307/2140261.

8.  Burnett, Christina Duffy. “Untied States: American Expansion and Territorial Deannexation.” The University of Chicago Law Review 72, no. 3 (2005): 797–879. http://www.jstor.org/stable/4495514. 

9. Caban, Pedro. “Puerto Ricans as Contingent Citizens: Shifting Mandated Identities and Imperial Disjunctures.” Centro journal 29, no. 1 (2017): 238–283.

10. "COURT'S DECISIONS IN THE INSULAR CASES: DISSENTING OPINION FILED BY THE CHIEF JUSTICE. THE COURT IS DIVIDED ON ALMOST EVERY QUESTION IT IS CALLED UPON TO SETTLE." 1901.New York Times (1857-1922), May 28, 2. https://ezproxy2.library.colostate.edu/login?url=https://www.proquest.com/historical-newspapers/courts-decisions-insular-cases/docview/96083240/se-2?accountid=10223. 

11. Elkan, Daniel Acosta. “‘... Acting Like an American Citizen’: Discursive and Political Resistance to Puerto Rican U.S. Citizenship Anomalies in the 1930s.” Centro journal 29, no. 1 (2017): 202–223.

12. Fuller, Melville Weston, and Supreme Court Of The United States. U.S. Reports: Fourteen Diamond Rings v. United State, 183 U.S. 176. 1901. Periodical. https://www.loc.gov/item/usrep183176/.

13. Gordon, Sarah. “A Call for Liberty: Rockwell Kent’s Puerto Rico Mural.” Archives of American Art Journal 58, no. 2 (2019): 4–23.

14. "GOVERNMENT BEATEN IN AN INSULAR CASE: SUPREME COURT DECIDES THE PHILIPPINE DUTY SUIT. SAYS ISLANDS BECAME PROPERTY OF THIS COUNTRY WHEN TREATY WAS SIGNED AND DUTIES CANNOT BE LEVIED -- LAST PORTO RICAN CASE ALSO DECIDED." 1901.New York Times (1857-1922), Dec 03, 2. https://ezproxy2.library.colostate.edu/login?url=https://www.proquest.com/historical-newspapers/government-beaten-insular-case/docview/96143047/se-2?accountid=10223. 

15. HARWOOD HULL. Special Correspondence, THE NEW YORK TIMES. 1932. "PORTO RICAN WRITER CRITICIZES OUR RULE: LACK OF NATIONAL POLICY KEEPS ISLAND APART FROM NATION, JUAN B. HUYKE SAYS. ANALYZES FOUR GOVERNORS ASSERTS ROOSEVELT REGIME WAS "DISASTROUS TO AMERICAN IDEALS" -- SEEKS CLOSER UNION." New York Times (1923-), Apr 10, 1. https://ezproxy2.library.colostate.edu/login?url=https://www.proquest.com/historical-newspapers/porto-rican-writer-criticizes-our-rule/docview/99686732/se-2?accountid=10223.

16. Hickey, Jeremiah P. “The Past Must Not Be the Present: Legislative Supremacy and Judicial Duty in the ‘Insular Cases.’” South Central Review 30, no. 1 (2013): 97–132.

17. KAPUR, NICK. “William McKinley’s Values and the Origins of the Spanish-American War: A Reinterpretation.” Presidential studies quarterly 41, no. 1 (2011): 18–38.

18. Lecours, André, and Valérie Vézina. “The Politics of Nationalism and Status in Puerto Rico.” Canadian Journal of Political Science 50, no. 4 (2017): 1083–1101. doi:10.1017/S0008423917000488.

19.  Leonard, Thomas C. Illiberal Reformers : Race, Eugenics, and American Economics in the Progressive Era. Princeton, New Jersey ;: Princeton University Press, 2016.

20. Madera, J. (2020). Quiet Empire and Slippery Geography: Puerto Rico as Nonsovereign Territory. Journal of Transnational American Studies, 11(1).

21. MELÉNDEZ, EDGARDO. 2013. “Citizenship and the Alien Exclusion in the Insular Cases: Puerto Ricans in the Periphery of American Empire.” Centro Journal 25 (1): 106–45.

22. Morgan, H. Wayne. America’s Road to Empire; the War with Spain and Overseas Expansion. New York: Wiley, 1965.

23. Perez, Lisa Maria. 2008. “Citizenship Denied: The Insular Cases and the Fourteenth Amendment.” Virginia Law Review 94 (4): 1029–81.

24.  Randolph, Carman F. “The Insular Cases.” Columbia Law Review 1, no. 7 (1901): 442-443.

25.  Russell Rennie, "NOTE: A QUALIFIED DEFENSE OF THE INSULAR CASES," New York University Law Review, 92, 1683-1718 (November, 2017).

26. "SENATOR FORAKER'S VIEW: DECISION A VINDICATION OF REPUBLICAN POLICY, HE DECLARES. QUESTION OF THE SOVEREIGN POWER OF THE UNITED STATES SETTLED FOREVER BY THE COURT." 1901.New York Times (1857-1922), May 28, 3. https://ezproxy2.library.colostate.edu/login?url=https://www.proquest.com/historical-newspapers/senator-forakers-view/docview/96081973/se-2?accountid=10223.

27. Special to The New York Times. 1901. "COURT DECIDES INSULAR CASES: HOLDS THAT THE FORAKER ACT IS CONSTITUTIONAL. CONGRESS'S POWER SUSTAINED UNTIL IT PASSED THE ACT NO DUTIES COULD BE COLLECTED. THE DE LIMA CASE, BROUGHT TO RECOVER DUTIES PAID BEFORE ITS ENACTMENT, DECIDED AGAINST THE GOVERNMENT -- DECISIONS CAUSE SOME CONFUSION AS TO THEIR EFFECT ON THE PHILIPPINES." New York Times (1857-1922), May 28, 1. https://ezproxy2.library.colostate.edu/login?url=https://www.proquest.com/historical-newspapers/court-decides-insular-cases/docview/96081389/se-2?accountid=10223.

28. Special to The New York Times. 1901. "J.W. FOSTER ON INSULAR CASES: EX-SECRETARY THINKS THE DECISIONS IN ACCORDANCE WITH THE NEEDS OF THE GOVERNMENT." New York Times (1857-1922), Jun 06, 2. https://ezproxy2.library.colostate.edu/login?url=https://www.proquest.com/historical-newspapers/j-w-foster-on-insular-cases/docview/96104776/se-2?accountid=10223.

29. "SPIRIT OF COMPLAINT PERVADES PORTO RICO: ISLANDERS NOT SATISFIED WITH DECISIONS IN INSULAR CASES. EXPECTED TO HAVE FREE TRADE AND BE DECLARED CITIZENS -- LEGISLATURE MAY BE ASKED TO DECLARE ISLAND SELF-SUPPORTING." 1901. New York Times (1857-1922), May 29, 2. https://ezproxy2.library.colostate.edu/login?url=https://www.proquest.com/historical-newspapers/spirit-complaint-pervades-porto-rico/docview/96109623/se-2?accountid=10223. 

30. "THE STATUS OF OUR NEW POSSESSIONS." 1901. New York Times (1857-1922), May 28, 8. https://ezproxy2.library.colostate.edu/login?url=https://www.proquest.com/historical-newspapers/status-our-new-possessions/docview/96083765/se-2?accountid=10223.

31. Torruella, Juan R. “Ruling America’s Colonies: The ‘Insular Cases.’” Yale law & policy review 32, no. 1 (2013): 57–95.

32. Venator-Santiago, Charles. “Mapping the Contours of the History of the Extension of U.S. Citizenship to Puerto Rico, 1898--Present.” Centro journal 29, no. 1 (2017): 38–55.

33. Wireless to THE NEW YORK TIMES. 1932. "FLAG FOR PORTO RICO FAILS: LEGISLATURE ADJOURNS WITHOUT ADOPTING OFFICIAL BANNER." New York Times (1923-), Apr 20, 48. https://ezproxy2.library.colostate.edu/login?url=https://www.proquest.com/historical-newspapers/flag-porto-rico-fails/docview/99686035/se-2?accountid=10223.

34.  Wireless to THE NEW YORK TIMES. 1932. "Mob Invades New Capitol of Porto Rico; Youth Killed in Riot Over Flag for Island: MOB RAIDS CAPITOL IN PORTO RICO RIOT." New York Times (1923-), Apr 18, 1. https://ezproxy2.library.colostate.edu/login?url=https://www.proquest.com/historical-newspapers/mob-invades-new-capitol-porto-rico-youth-killed/docview/99687961/se-2?accountid=10223.