Puerto Rico, the Constitution, and Citizenship

Does the U.S. Constitution apply to Puerto Rico? We explained in a recent post that it does… but only partly. The Supreme Court determined that only “fundamental rights” apply. Since the Supreme Court never specified what the “fundamental rights” are, residents of Puerto Rico don’t have the guaranteed rights that are spelled out in the Constitution for U.S. citizens living in the 50 states. One of the areas where this is most important is the question of citizenship.

Constitutional Citizenship Eludes Puerto Rico

The U.S. Supreme Court confirmed as recently as 2016 that the 14th Amendment to the U.S. Constitution does not apply in Puerto Rico.

The 14th Amendment holds States (but not territories) to a very high standard of citizenship rights:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

This post-Civil War constitutional amendment made former slaves and forevermore all persons born in the U.S. free U.S. citizens. But the Supreme Court determined that birthright citizenship under the 14th Amendment applies only to individuals born in a State of the Union, and therefore does not apply in Puerto Rico.

Rather, U.S. citizenship at birth in Puerto Rico is given by Congress under the territorial clause in Article 4 of the Constitution and the Article I power to give citizenship to people who were not born in the United States.

No Guarantees

Once conferred by statute, citizenship guarantees equal rights in any State. It doesn’t guarantee equal rights in the territory where some rights guaranteed in States are denied.

Some rights of citizens in the States are denied in Puerto Rico by federal and territorial laws and court rulings that can and should be revised or rescinded. However, some U.S. citizenship rights are limited by the U.S. Constitution to citizens of the States. This includes the right to vote for Congress and the President. That is allocated by the U.S. Constitution itself to citizens of the States of the Union.

Even more crucial is the reality that Congress can stop giving future U.S. citizenship based on birth in Puerto Rico at any time. States have rights Congress can not take away; territories do not. Congress can stop giving U.S. citizenship to people born in Puerto Rico, force the Island into independence, or give the Island away. We don’t think they will, but the Constitution won’t stop it.

The United States Constitution limits what Puerto Rico can do. For example, it makes the idea of “enhanced commonwealth” impossible. But it doesn’t protect Puerto Rico’s freedoms and future rights as it does for the people of the States.

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