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Puerto Rico Rights At Stake
By Orlando Vidal/ As You Were Saying...
July 30, 2005
Though most Hispanic Americans are unaware of it, let alone the population at large, we still have on the books our own Dred Scott, Plessy and Korematsu.
I am referring to the Insular Cases, a series of cases decided by the Supreme Court between 1901 and 1922. Collectively they held that the inhabitants of the then newly unincorporated territories acquired after the 1898 Spanish-American War - the last remaining and most populous of which is Puerto Rico - do not enjoy all the rights otherwise afforded to people in the states under our Constitution.
Dred Scott, holding African-Americans were not full citizens, in many ways precipitated the Civil War. Plessy upheld the doctrine of ``separate but equal.'' And, in Korematsu, the court upheld the forcible internment of Japanese-Americans during World War II. But while those awful precedents have since been overturned, the Insular Cases still affect the lives of our citizens in the territories.
In justifying the court's refusal to extend all constitutional protections to the peoples of the territories, Justice Henry Brown wrote that the newly acquired territories ``are inhabited by alien races, differing from us in religion, customs, laws . . . and modes of thought, such that the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible.'' That time for Puerto Rico's 4 million citizens has lasted 106 years.
One surely wonders how much longer the court thinks it should take to extend the full blessings and protections of our Constitution to the people of that island.
Justice John Harlan understood well the implications of the court's holding, stating in dissent, with his usual eloquence: ``The idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces - the people inhabiting them to enjoy only such rights as Congress chooses to accord to them - is wholly inconsistent with the spirit and genius as well as with the words of the Constitution.'' People in Puerto Rico have remained, as the court's dissenters anticipated they would, in an ``intermediate state of ambiguous existence for an indefinite period,'' and - without any doubt - second-class citizens with no right to vote in presidential elections, with no voting representation in Congress and with no right to equal treatment in federal programs.
Such is the absurdity of the present situation that citizens residing abroad have, in many respects, more rights on foreign soil than those citizens would have within U.S. territory. For example, if a citizen moved to North Korea, he could still cast an absentee ballot for president in his former state of residence. Not, however, if he moved to Puerto Rico. Similarly, citizens living in Puerto Rico have only the right to receive a fraction of the Social Security benefits that mainland citizens or mainland citizens who have retired abroad enjoy, though all pay the same in taxes.
While senators are sure to attempt to determine Judge John G. Roberts' views on the most contentious issues of our time, they would do well to also inquire into the nominee's view on the continued validity of the Insular Cases. Determining his view on that issue will not only shed light on the impact of a Justice Roberts on millions of our fellow citizens who, by accident of birth or choice, happen to live in territories, but would have the benefit of disclosing his view on the extraterritorial application of the Constitution, an issue with particular relevance now that we detain prisoners in places such as Guantnamo Bay, Cuba.
With Hispanics now the largest minority in the country, and the possible nomination of the first Hispanic-American justice later, it might be time to have the court reconsider the Insular Cases.
With luck, we may not have to wait much longer if a Justice Roberts lives up to Justice Harlan's standards and, by leading the court to overturn these unfortunate precedents, affirms that great justice's views that the ``Constitution neither knows nor tolerates classes among citizens.'' Those words still hold special resonance in the territories.
Orlando Vidal is an attorney with Sullivan & Worcester.