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The San Juan Star
Dred Scott and Balzac --- A Legacy of Equality Denied
By DICK THORNBURGH; Columnist, Viewpoint
July 14, 2004
Recent San Juan Star commentaries have compared the U.S. Supreme Courts 1896 ruling in Plessy v. Ferguson to the so-called Insular Cases, including the 1901 Downes v. Bidwell ruling. The Plessy ruling allowed "separate but equal" racial segregation. The Insular Cases allowed the "unincorporated territories" to be governed by federal law, without "consent of the governed" to the supreme law of the land, or a status resolution policy.
Plessy was reversed in the 1956 case Brown v. Board of Education. The unincorporated territory doctrine of the Insular Cases still defines Puerto Ricos status. Congress authorized a local constitution in 1952, but this permits consent of the governed only in local matters not determined by federal law.
The early Insular Cases involved U.S. governance of territories with non-citizen alien populations. Deviating from the anti-colonial tradition of the Northwest Ordinance, under which territorial incorporation leading to statehood was norm during Americas continental expansion, the Insular Cases gave Congress latitude to govern remote island territories without incorporating them into the union, extending U.S. citizenship, or applying the constitution.
That was a judicially formulated political solution to the problem of territorial administration for distant island domains ceded by Spain as spoils of war. The Downes case reflects a court majority willing to intervene in the robust policy debate between imperialists and anti-imperialists in Congress. The resulting decision gave Congress plenary power and broad discretion to rule Americas territorial realm largely at its pleasure.
In the 1922 case of Balzac v. Puerto Rico, the U.S. Supreme Court went even further than the early Insular Cases, ruling that conferral of U.S. citizenship on residents of Puerto Rico in 1917 did not incorporate the territory into the union. That meant U.S. citizens in Puerto Rico were not on the path to equality with U.S. citizens in the states, or even U.S. citizens living in the incorporated territories of Hawaii and Alaska. The Balzac courts assurance that the U.S. would respect "fundamental rights" in Puerto Rico did not lead to full citizenship or government by consent of the governed.
A central problem with Balzac is that it contradicted the 1904 ruling of the U.S. Supreme Court in Rassmussen v. U.S., deciding Alaska was incorporated based primarily on conferral of U.S. citizenship. Similarly, Hawaii was deemed incorporated upon the adoption of its organic act granting U.S. citizenship in 1900. Balzacs rejection of equal status for U.S. citizens in Puerto Rico evokes an era before the Insular Cases, when the 1857 case of Scott v. Sanford -- better known as the Dred Scott case was decided.
Dred Scott was a slave taken by his master to the U.S. territory now known as Minnesota, which was organized under federal territorial law as a "free" jurisdiction. Scott was taken back to Missouri, organized under federal territorial policy as a "slave" jurisdiction. Scott refused to accept treatment as a slave and sued in federal court, arguing that living in free territory made him a free man and a U.S. citizen.
Ironically, the Dred Scott ruling recognized equal rights of U.S. citizenship in the territories under applicbale federal law, an anti-colonial territorial law ruling that was overshadowed and tainted by the courts refusal to recognize former slaves as U.S. citizens. The court also ruled that Congress could not declare some states and territories free and others slave, because that would deny equal property rights to slave owners moving from one jurisdiction to another. That infamous ruling overturned the Missouri Compromise" limiting expansion of slavery, making the peaceful abolition of slavery by rule of law virtually impossible.
What the Dred Scott and Balzac cases have in common is that both impose a judicially determined federal policy that people living in a U.S. territory, who have no citizenship other than that of the United States, can be denied full and equal citizenship, as well as government by consent of the governed, indefinitely and without legal or political remedy. It took the Civil War followed by the 13th and 14th Amendments to resolve the Dred Scott problem in the states, but neither Congress nor the courts have corrected the problem Balzac created for Puerto Rico.
The Plessy ruling separated citizens by race, and the colonial doctrine of the Insular Cases separated citizens from non-citizens. It was the Balzac case that separated Puerto Rico from the rest of the nation by creating a less than equal U.S. citizenship for an unincorporated territory. That is why U.S. Court of Appeals Judge Juan R. Torruella is right when he describes citizenship in Puerto Rico under the Balzac ruling as "separate and unequal".
Eighty-seven years ago Congress conferred U.S. citizenship on persons born in the unincorporated territory of Puerto Rico. While alluding to Congressional power over such territories, the U.S. Supreme Court created a territorial policy dilemma by ruling in Balzac that U.S. citizenship in Puerto Rico means something different than in the rest of America. Instead of taking back its power over this policy problem, for decades Congress has used the Balzac case as an excuse for playing a game of cat and mouse with the local government on the question citizenship and government by consent as critical issues for status resolution.
The time has come for both federal and local leaders to speak with honesty and courage about the terms for Puerto Rico to end unincorporated territory status, and achieve a status that constitutes government by consent of the governed, at the national as well as local level. For that reason the work of the Presidents Task Force on Puerto Ricos Status is important, and its report due next year has the potential to make history by ending the ambiguities that are the legacy of Balzac v. Puerto Rico.
Dick Thornburgh, former U.S. Attorney General and Governor of Pennsylvania, is now counsel to the national law firm of Kirkpatrick & Lockhardt LLP.