On Tuesday, the Supreme Court will hear argument in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment LLC. On the surface, the case concerns a constitutional challenge to the board overseeing Puerto Rico’s debt restructuring. But deep questions going to the heart of the long relationship between the United States and Puerto Rico lurk just beneath. And the Supreme Court’s past reliance on offensive racial assumptions to answer those questions will again be on display.
I was born in Puerto Rico. That makes me a U.S. citizen and a Puerto Rican. I am equally proud of both. I now live in the mainland United States, where I enjoy full constitutional rights just like all other U.S. mainland residents. But some of those rights apply differently when I return. The constitutional right to a trial by jury, for example, applies not at all. That’s because 120 years ago, the Supreme Court ruled that Puerto Ricans (and residents of other island territories not on the path to statehood) were not entitled to the Constitution’s full protections. The reason? Puerto Ricans were an “uncivilized” and “alien race.”
More than geography or distance, Supreme Court case law has framed Puerto Rico’s relationship with the United States—and the second-class constitutional status of Puerto Ricans—for more than a century. As long as U.S. territories were populated principally by white citizens, the court commonly treated the Constitution as “following the flag.” It governed in the territories just as it did in the states.
At the turn of the 20th century, however—around the same time that it upheld “separate but equal” in Plessy v. Ferguson—the court created an unprecedented rule in decisions known as the Insular Cases. Going forward, the Constitution would not fully follow the flag to newly acquired overseas territories. Some of its protections—including the fundamental right to jury trial—did not apply.
Today, Puerto Rico still owes much of its bizarre intermediate status to the Insular Cases. The island’s native-born inhabitants have been U.S. citizens since 1917, and federal law (other than the Constitution itself) applies there with full force. Yet Puerto Rico remains a so-called unincorporated territory. In the words of the Insular Cases, it “belongs to, but is not a part of, the United States.” Now, parties in Aurelius have relied on the Insular Cases to argue that the “territorial incorporation doctrine” allows Congress, when it regulates Puerto Rico, to ignore the appointments clause, which requires that some federal officers be appointed by presidential nomination with the advice and consent of the Senate.
Puerto Rico’s second-class constitutional status was then and now a kindred spirit to Plessy and Jim Crow segregation. It was only once the United States annexed island nations inhabited by nonwhite peoples that the Supreme Court held that the Constitution would not fully protect certain residents of territory under U.S. control. And in doing so, the Supreme Court relied explicitly on the belief that the new territories’ inhabitants were racially inferior.
In Downes v. Bidwell, the leading Insular Cases decision, Justice Henry Billings Brown cautioned against extending the Constitution to “possessions … inhabited by alien races.” “Grave questions,” he reasoned, would otherwise force Congress to act in ways it would not in “territory inhabited only by people of the same race.” Justice Edward Douglass White warned against admitting “unknown island[s], peopled with an uncivilized race” whose inhabitants were “absolutely unfit” for U.S. citizenship. And in Balzac v. Porto Rico, Puerto Ricans were deemed not entitled to jury trials because they lived in “ancient communities” with “customs and political conceptions” alien to “institution[s] of Anglo-Saxon origin.”
The racist assumptions that undergird the Insular Cases were widely shared at the time. Just five years before Downes, in Plessy, Brown also ruled that the Constitution permitted laws keeping white and black Americans “separate but equal.” There, too, the court reasoned that if “one race be inferior to the other,” the Constitution could not “put them upon the same plane.”
But less than 60 years later, in Brown v. Board of Education, the court rejected Plessy and “segregation with the sanction of the law.” More recently, in Trump v. Hawaii, the court overturned Korematsu v. United States, a World War II decision that allowed the “morally repugnant” internment of more than 100,000 U.S. citizens of Japanese ancestry. Acknowledging that internment was imposed “explicitly on the basis of race,” Chief Justice John Roberts announced in 2017 that it had “been overruled in the court of history” and had “no place in law under the Constitution.”
Unlike Plessy and Korematsu, the Insular Cases remain “good law,” even though they rest on similarly repugnant views about the inferiority of certain races. The ACLU and other “friends of the court” have urged the Supreme Court to reject the troubling double standard it created long ago and affirm that Puerto Ricans have full constitutional membership. I co-authored the ACLU’s amicus brief.
The Supreme Court can easily do this: The Constitution says nothing of “incorporated” or “unincorporated” territories; only the court’s own cases that stand in the way. And stare decisis—respect for precedent—is at its weakest when the court erroneously interprets the Constitution, since only the court “can alter” its own holdings.
Overruling the Insular Cases and their doctrine would not solve Aurelius one way or another. It wouldn’t even compel the court to apply its appointments clause doctrine, because the court can still hold that members of the board are territorial officers, not “of the United States.” Importantly, it wouldn’t force the issue on the complex question of statehood. Puerto Rico would remain a territory within the original meaning of the Constitution—any change on that score, when it comes, must respect the views of Puerto Rico residents. And it would not, as some have suggested, open the door for greater federal control over U.S. territories and the District of Columbia—or threaten self-governance in either. Under settled law, Congress already has its most sweeping, or “plenary,” power over both. And it is well within that power to afford them meaningful home rule.
But it would still matter—deeply. The Insular Cases cast a 120-year-old shadow on the rights of the residents of Puerto Rico. That they do so for racist and troubling reasons adds insult to (constitutional) injury. The Supreme Court may not be able to solve Puerto Rico’s debt problems, but it can affirm that residents of Puerto Rico—including more than 3 million U.S. citizens living under U.S. sovereignty—have the same constitutional protections as the rest of us.