The current “commonwealth” regime of territorial government is more “colonial” and “imperialist” than incorporation as part of the transition to full equality of U.S. citizenship rights under statehood as approved by the people and their elected government.
A reader recently responded to the statement by PR51ST that “No American territory voting for statehood has even been denied admission to the Union.” In a Facebook comment the reader suggested the term “incorporated” should be inserted between the words “American” and “territory.” This comment set off a lively discussion which we’ve enjoyed.
However, admission to statehood has never been limited to incorporated territories. Rather, it is U.S. citizenship of the people constituting the body politic of a territory that serves as the primary criteria for duly constituted new states to be admitted to the Union.
That was true of territories settled by U.S. citizens, as well as 18 territories annexed by the U.S. in which Congress conferred U.S. citizenship on non-citizen populations. That includes all or part of 15 states formed from territories acquired under the Louisiana Purchase as well as Puerto Rico, Alaska and Hawaii.
Both California and Texas were admitted as states without being classified as “incorporated” territories during the annexation and statehood admission process. Any territory annexed or declared to be under U.S. sovereignty in the same act or subsequently can be admitted as a state by simple majority vote in Congress. Since 1796 every territory admitted to the union – like Puerto Rico today – had a duly constituted U.S. citizen body politic.
Accordingly, the Puerto Rico Statehood Admission Act (H.R. 4901) will enable Puerto Rico to be incorporated, but not to qualify the territory for admission. Rather, incorporation would end the application of the non-incorporation doctrine so important provisions of the U.S. Constitution will be extended directly as part of the transition to statehood.
That provision of H.R. 4901, allowing direct application of the U.S. Constitution does not mean only “incorporated” territories can be admitted to the union. That incorrect assumption can be used to imply or assert that Puerto Rico is not yet eligible and qualified for statehood, despite the 2012 and 2017 pro-statehood majority votes and formal petitions of the duly-constituted and democratic territorial government.
We all sometimes become beguiled by the ambiguities of the “incorporation” and “non-incorporation” dichotomy that perpetuates denial of equal citizenship for Puerto Rico that comes exclusively through statehood. It behooves us recognize that classification as “incorporated” or “unincorporated” is politically significant only as long as Puerto Rico remains a territory.
Those statutory classifications have little or no real relevance to the debate or constitutional process related to statehood or nationhood as post-territorial future status options.
Certainly, under Article IV, Section 3 of the U.S. Constitution the terms “incorporation” and “non-incorporation” do not appear or exist as criteria for or condition related to admission of a new state. Nor under any federal court ruling or federal statute is incorporation a pre-admission litmus test or requirement for statehood.
Accordingly, it is not true that the word “incorporation” has to be inserted to validate the statement that no territory voting for statehood has been denied admission. The historical record is clear: no organized and duly constituted U.S. territory populated by U.S. citizens that has petitioned for statehood has ever been indefinitely or permanently denied admission to statehood.
That is true not only of territories in which statehood got a majority of votes in a referendum. Most territories were admitted based on petitions of the territorial government or adoption of a territorial constitution by majority rule. However, Colorado and Nebraska were admitted after statehood was rejected by popular vote, followed by statehood petitions from the territory government.
Puerto Rico is the only current territory to petition for statehood and it does so based on two democratic majority votes in 2012 and 2017 to end territorial status in favor of statehood. Of course, admission is subject to terms for admission prescribed by Congress and ratified in a final act of self determination.
Before the federal judiciary invented the non-incorporation doctrine for three territories populated by non citizens, several territories populated by U.S. citizens were admitted without as strong a record of majority rule favoring admission as Puerto Rico. In addition, Puerto Rico is more developed politically and economically and more integrated into the legal, political and social culture of the nation than any of the territories admitted to the union before 1900. It was thereafter in 1901 the courts invented jurisprudence distinguishing incorporated and non incorporated territories for purposes of applying the Constitution in the latter.
In an infamous ruling invading the power of Congress over territories, in 1922 the U.S. Supreme Court ended the Northwest Ordinance tradition applying the Constitution in all U.S. citizen populated territories. That left application of the Constitution to U.S. nationals and citizens in five territories to the discretion of Congress and the courts. The classification of territories as incorporated or not is gratuitous and anachronistic, especially with respect to self determination by U.S. citizen populated territories that petition for statehood based on majority rule.
Like the 32 other U.S. citizen populated territories before Puerto Rico, the question presented by H.R. 4901 is how long will Congress deny equality to millions of American citizens after a majority vote and petitions of their government for admission? In every territory admitted as a state there was an anti-statehood opposition movement. But Puerto Rico has a smaller independence and anti-statehood faction than territories like Colorado, Wisconsin, and Nebraska before admission.
Moreover, there is a far higher rate of English proficiency in Puerto Rico than in Louisiana or New Mexico when they were admitted. In the case of Louisiana, the War of 1812 created far more adverse political and economic circumstances than Puerto Rico faces today, but Congress realized the only thing worse than granting statehood would be to deny it any longer.
To revive the political and legal idioms making the term “incorporation” the exclusive path to statehood is to make non-incorporation a pretext for denying self determination to millions of Americans.