A press release dated October 16 from Stacey Plaskett, non-voting delegate in Congress from the U.S. territory of the Virgin Islands, illustrates the paradoxical political predicament of her island homeland. It is a historical dilemma USVI faces as one of the last four American off shore possessions where Congress currently still grants U.S. citizenship under federal territorial statutes.
Complex legal and political questions arise because these islands are not yet fully incorporated into the union with full citizenship rights conferred directly under the U.S. Constitution. Even if incorporated into the union with citizenship under the 14th Amendment not the current statutory citizenship, full equality comes only with admission as a state with equal representation in Congress and the Electoral College.
As an unincorporated territory the USVI still has the right to independent nationhood to attain full democracy, but at the same time U.S. citizens in the territory won’t attain fully equal and democratic U.S. citizenship rights unless USVI either becomes a state of the union or merges with an existing state. Puerto Rico, Northern Mariana Islands and Guam share the same political status conundrum with USVI.
Each of the four remaining U.S. citizen populated territories seeks different solutions under varying status models, trying to balance unreconciled aspirations for both local empowerment and equality that territories lack in the national political process. That dilemma is not resolved simply because Americans in unincorporated territories can attain full citizenship by surrendering their freedom to live where they have family and community, and instead relocate to a state to secure equal rights.
Meanwhile, a fifth territory – American Samoa – has embraced U.S. nationality but so far declined to seek federal statutory U.S. citizenship in the territory. The American Samoans seem to place a higher value on local autonomy than equal citizenship in the national political process. That trade-off is mitigated because American Samoans have U.S. nationality and are eligible to apply for full and equal citizenship upon relocating and living in a state.
All these contradictions and trade-offs are controversial. Not surprisingly, the confused ambiguity of territorial status law is conspicuous:
- Congresswoman Plaskett correctly notes that the legacy of racist attitudes expressed in the Insular Cases was addressed in oral arguments before the U.S. Supreme Court in the case of FOMB Puerto Rico v. Aurelius. That included legal positions taken by the lawyer representing Electrical and Irrigation Worker’s Union in Puerto Rico, demanding judicial repudiation of the “Insular Cases” as racist territorial law.
- Plaskett is a skilled lawyer and understands the Insular Cases have been affirmed by U.S. Supreme Court consistently in major decisions from 1957 to 2016. Yet, in the recent Aurelius case the union lawyer asserted “when there is a constitutional injury, justice requires a remedy.” On that basis the court was admonished by the union lawyer not to rely on the “racist” Insular Cases to decide if the U.S. Constitution applied in the territory of Puerto Rico in that case.
- Yet, in oral argument before the Supreme Court in hearing that case two liberal and two conservative Justices pointed out that the case did not present the court with a question of whether the constitutional provision at issue applied by operation of Insular Cases territorial law. Rather, all parties agreed other constitutional provisions including the appointments clause were in question before the court.
- Thus, the court admonished the Puerto Rico public utility union lawyer she should address the merits of whether Congress had exercised its power over territories to create an entity that was more local than federal, and thus not restricted by the otherwise applicable constitutional language, not simply whether the case arose in a territory or a state. When the union lawyer persisted in the same assertions the Chief Justice stated, “I fail to see the pertinence” of the lawyer’s argument on the Insular Cases.
- More importantly, if the surviving law of the Insular Cases is unconstitutionally racist the ACLU “friend of court” brief in the Aurelius case, calling for federal courts not to rely on the Insular Cases in present or future cases, does not meet the demand that the court provide a remedy for the injustice of the Insular Cases.
Specifically, if it is true that territorial law under the Insular Cases is “purely racial” and therefore unconstitutional, then simply not relying on the Insular Cases lets that injustice stand with no remedy. If the racist attitudes expressed in court opinions in 1901 are inseparable and indistinguishable from the territorial law of the Insular Cases in 2019, simply being silent about those cases is not a remedy.
- The Downes v. Bidwell ruling in 1901 imposed as law a policy that Congress can govern a territory without incorporating it into the union under the U.S. Constitution, and decide the rights and status of the people on a case by case basis. If that 1901 ruling and rulings upholding it in 1957, 1976, 2008 and 2016 actually are imbued in the modern era with functionally institutionalized and active racial hate, it is particularly imperative to overturn the Downes v. Bidwell case.
- If we are serious that the Downes ruling must fall, even though it applied from 1901 to 1922 only to non-citizens in the Philippines, Puerto Rico and Guam, then we must be even more serious about overturning Balzac v. Puerto Rico. That 1922 ruling misapplied the Insular Cases to Puerto Rico after Congress granted U.S. citizenship in that territory, deviating from the opposite results for Alaska and Hawaii, an injustice upheld by the U.S. Supreme Court in major constitutional cases from 1957 to 2016.
- In that historical context, prospective silence but not retroactive remedial action reversing the Insular Cases is evasion by the court and Congress. That is like letting segregation continue under the Plessy v. Ferguson ruling of 1896 in public schools established before the Brown v. Board of Education ruling reversed Plessy in 1954, or maintaining race segregation in public facilities established before the Civil Rights Act of 1964.
- Because the 1922 case of Balzac v. Puerto Rico denied incorporation into the union under the U.S. Constitution based on U.S. citizenship, the people of Puerto Rico and other unincorporated territories have struggled for nine decades with the failure of Congress to define the path to a fully democratic status with equal rights of citizenship at the national level.
- Those in Puerto Rico who knew the real choices were statehood or separate sovereign nationhood, with or without a treaty of free association, were denied informed self-determination on real options by federal collusion with a local “autonomy” movement that promised:
- Constitutionally conferred U.S. citizenship in the territory
- Full equality of rights upon relocation to a state
- Exemption from federal taxation on local income in the territory
- Federal tax shelter subsidization for corporate investment from U.S. companies
- “State-like” status under federal programs and services
- Local veto power over federal law as a substitute for equal representation in Congress and Electoral College.
- U.S. customs territory protection and currency, but separate foreign trade and international relations powers.
As many members of the U.S. Senate and House of Representatives have often stated, if that political status model promised by the Puerto Rico “autonomous commonwealth” faction is possible under the American system of constitutional federalism, most if not all states would want it.
That is why a judicial edict or Congressional declaration that the injustice of the Insular Cases never happened or somehow disappeared is not a remedy for the extra-constitutional “autonomy” hoax played by the anti-statehood, anti-independence party in Puerto Rico and its collaborators in Washington.
Congressional abdication of its authority and responsibility to ensure informed self-determination demands restoration of the Northwest Ordinance tradition. That road map for territorial transition to equality through local self-determination was envisioned by the founders of our nation for all U.S. citizen populated territories, and it applies still for the U.S. nationals of America Samoa.
Apparently, the same ACLU lawyers who wrote the “friend of court” brief in the Aurelius case persuaded the union lawyer from Puerto Rico, to accept a new version of the “autonomy” hoax. A resolution mandating informed self-determination and federal recognition of majority rule would be the best remedy for the injustice of the Insular Cases, as misapplied to U.S. citizens in four territories, and U.S. nationals in a fifth.
Clearly, the paradoxical legal and political realities facing the unincorporated territories make if complicated and challenging to simplify the problems facing USVI and other territories, much less define the solutions.
Howard Hills is former counsel on territorial status affairs in the Executive Office of the President, National Security Council and U.S. State Department. He is author of the book Citizens Without A State with foreword by former U.S. Attorney General Richard Thornburgh.