On September 17th, 1787, the 39 delegates at the Constitutional Convention in Philadelphia signed the newly completed U.S. Constitution. September 17th is therefore a special day to remember a special document. There’s a catch, though: the U.S. Constitution doesn’t fully apply to Puerto Rico.
Why doesn’t the Constitution fully apply to Puerto Rico?
This is strange. The Constitution is the law of the land, and federal laws apply to Puerto Rico. So how could it be that the Constitution doesn’t completely apply?
It’s the doctrine of unincorporated territories, which popped up in the Insular Cases. These are a collection of Supreme Court cases from the early 20th Century. In Downes v. Bidwell, the decision included this statement:
“The Island of Porto Rico is not a part of the United States within that provision of the Constitution which declares that ‘all duties, imposts, and excises shall be uniform throughout the United States.’”
—Downes v. Bidwell, 182 U.S. 244, 287 (1901)
It also included this statement:
“We are therefore of opinion that the Island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution; that the Foraker Act is constitutional, so far as it imposes duties upon imports from such island, and that the plaintiff cannot recover back the duties exacted in this case.”
Here’s one more quote:
“There is a clear distinction between such prohibitions of the Constitution as go to the very root of the power of Congress to act at all, irrespective of time or place, and such as are operative only throughout the United States, or among the several states.”
The decision in Balzac v. Porto Rico, another of the Insular Cases, included this statement:
“The guaranties of certain fundamental personal rights declared in the Constitution, as, for instance, that no person could be deprived of life, liberty, or property without due process of law, had from the beginning full application in the Philippines and Porto Rico ….”
It also says this:
“The Constitution, however, contains grants of power, and limitations which in the nature of things are not always and everywhere applicable and the real issue in the Insular cases was not whether the Constitution extended to the Philippines or Porto Rico when we went there, but which ones of its provisions were applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements.”
These decisions added up to a claim that the Constitution applies to the new territories, but only as it related to “fundamental personal rights.” The court never specified which fundamental rights were covered, but just gave as examples the inalienable rights listed in the Declaration of Independence.
Does it matter?
Here’s an example of a case where this makes a difference. An amendment to the Constitution gave American women the right to vote in 1920. American women, U.S. citizens, living in Puerto Rico didn’t get to vote for another 15 years. This was a decision made by Puerto Rico, not be the federal government. Still, Puerto Rican women could not call upon the protection of the U.S. Constitution to get their voting rights. Voting was not considered a fundamental personal right.
Because of this lack of full application of the Constitution, Congress can treat Puerto Rico differently from the states. It is legal for Puerto Rico to receive fewer benefits, whether it’s exclusion from SNAP or disaster relief tied up for years by special requirements placed on the Island. It is legal for the federal government to exempt Puerto Rico from income taxes and then use that excuse to justify less support for infrastructure than is provided to the states.
As a state, Puerto Rico will be on an equal footing with all the other states. As an independent nation, Puerto Rico would have its own constitution and would not be affected by the U.S. Constitution at all. Under the mythical “commonwealth” status, Puerto Rico would continue to be an unincorporated territory, subject to the Constitution but not fully protected by it. Tell your legislators you want statehood.
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