Professors at Harvard Law School (HLS) should borrow a maxim popular just across Harvard Yard at the Kennedy School of Government: “When you find yourself in a hole, put down the shovel!”
Instead, HLS is digging up the long buried remains of historical guilt about its past role promoting failed experiments in American imperialism. Unfortunately, the same historic revisionism and deviation from original constitutional doctrine that put HLS on the wrong side of history and democratization more than a century ago is repeating itself in the school’s recent academic law programs on America’s anachronistic territorial empire.
It all began with an 1899 Harvard Law Review (HLR) article by a Yale law professor endorsing self-described “imperialists” in Congress, who favored U.S. rule over Spanish colonies conquered by America in 1898 as prizes of war. The article in HLR argued “It would be unwise to give the ignorant and lawless brigands that infest Puerto Rico the benefits of the U.S. Constitution.”
Scholarly legal advocacy in HLR for American governance of conquered territory and peoples without extending the Constitution directly contradicted the anti-colonial tradition of U.S. territorial policy. Before the HLS imperialists and their allies in Congress had their way populated territories were governed by direct application of the Constitution, and the U.S. citizens of twenty-seven territories used the tools of the Constitution to become states by 1900.
But in 1901 the U.S. Supreme Court adopted the HLS doctrine of American imperial rule over annexed territories outside the umbrella of the Constitution. In doing so the court invented a new “unincorporated” classification for three territories captured from Spain, and later applied it to two other smaller territories as well. This meant Congress could decide what form of government, law, citizenship and civil rights would exist in each territory. This power over non-citizens under U.S. sovereignty in “unincorporated” territories could be exercised without restraints on federal or local powers by direct application of the U.S. Constitution, except as such restraints might be established or revoked at the pleasure of Congress under federal territorial statutes.
That departure from the anti-colonial tradition of our nation in governing territory outside states has led to 118 years of non-incopration without full democratic self-government for Puerto Rico, our last large and populous territory, as well as for four smaller territories. To make matters far worse, in 1922 the U.S. Supreme Court doubled down on institutionalized imperialism by ruling Congress can grant U.S. citizenship in unincorporated territories without triggering incorporation that historically had extended the Constitution along with citizenship.
The result is that over 3.5 million U.S. citizens, more than the population of half the states, live in unincorporated territory with no democratic representation at the national level and less than equal political, legal and civil rights compared to fellow citizens in the states.
In 2014 the HLS faculty sponsored a symposium to revisit the unincorporated territory policy of the so-called “Insular Cases.” The agenda was contrived to allow HLS to distance itself from its embarrassing enmeshment in the legacy of race-based imperialism underlying the anachronistic colonialism of the unincorporated territory doctrine.
The scholarly legal sleight of hand employed by the HLS faculty was to shift the historical and moral burden for correcting injustice of the unincorporated territory status from the U.S. to the territories. Thus, the Dean and law professors serving as moderators called on the statehood, status quo and independence parties in Puerto Rico to call a convention under the current territorial constitution to propose a political status solution to the people and then to Congress.
The problem with this HLS “three party solution” scheme was that the status quo and independence options promoted by two of the local political parties already had been rejected by a clear majority in a 2012 political status referendum.
Obviously, both anti-statehood parties predictably would embrace the anti-democratic HLS faculty proposal to ignore the 2012 referendum results and start the self-determination over again with all three parties on an equal footing.
Instead of rectifying the injustice of the unincorporated territory doctrine, the HLS symposium took the wrong side against democratic self-determination, government by consent of the governed and equal citizenship rights under law by virtually ignoring the 54% majority vote to end the status quo and the 61% majority vote for statehood in the 2012 referendum.
The HLS symposium would have ended in a hollow anti-democratic call for a “three party solution” narrative if the Puerto Rico Independence Party (PIP) spokesman on the final panel had not been asked if his party would accept a majority vote for statehood. In response he confirmed that due to political oppression under U.S. rule the PIP will not accept majority rule unless it is for independence.
Thus, the 2014 symposium rigged to restore the institutional vanity of HLS and absolve it of moral responsibility for American imperialism in Puerto Rico backfired and HLS once again has dug itself into a deeper hole.
The only thing worse HLS could have done after that 2014 fiasco is publish a new HLR collection of essays once again distancing HLS from the century old race-based imperialist doctrine. Well, that is exactly what HLS has done. In so doingHLS again has associated itself with more nuanced but still essentially imperialist doctrines.
For example, in a collection of papers presented at the 2014 symposium, and in a new 2017 HLR edition on territories, HLS has featured scholarly research arguing for recognition of a “constitutionally unincorporated territory status” that is of “indefinite” duration, if not “permanent.”
This is not academic objectivity or scholarly impartiality, it is new age revisionist HLS support for renewed institutionalization of the U.S. Supreme Court’s deviation since 1900 from the anti-colonial tradition in federal territorial rule over often imperfect but ultimately anti-colonial governance of U.S. citizen populated territories. Before the 1922 ruling first apply unincorporated status doctrine after citizenship was granted, the court had uniformly ruled the Constitution applies to territories with U.S. citizen populations.
Instead of endorsing the idea that unincorporated territory status for U.S. citizens has become normative, HLS needs to recognize the abnormality in rule of law resulting from the court’s 1922 deviation from the Louisiana, Alaska and Hawaii precedents, in which the court’s finding of incorporation under the Constitution was based on U.S. citizenship of people in the territory.
HLS wants to have it both ways. By pointing out obvious anomalies of non-incorporation HLS is distancing itself from the anti-democratic outcome for U.S. citizens in Puerto Rico and other territories under the unincorporated territory status doctrine it once endorsed. At the same time HLS is now maintaining that unincorporated territory status has evolved from its original form into a “constitutionally” recognizable and “indefinite” if not “permanent” condition.
That allows HLS to wash its hands, ignore the tortured history of self-determination in the territory, and call on a political three-party political solution, as if the 2012 vote never happened. Yet, HLS is not willing to take the risk of addressing the reality that the next vote is still profoundly complicated by the 1922 case applying non-incorporation after U.S. citizenship was granted, directly enabling a century of race-based imperial law in which HLS played a seminal role.
In contrast, former U.S. Attorney General Thornburgh has noted in a 2007 book published by the respected Center for Strategic and International Studies that the 1922 ruling applying the unincorporated territory status doctrine to Puerto Rico after U.S. citizenship had been granted was “constitutionally flawed.” Instead of digging itself deeper in a hole by eruditely describing the problem but defending flawed jurisprudence, HLS should make itself a forum for truly free and open debate seeking truth and true solutions, rather than its own absolution for its hand in creating the problem.