A late September, post-Hurricane Maria survey by polling outfit Morning Consult found 54 percent of Americans don’t know Puerto Ricans are U.S. citizens, a finding underscored by other recent polls with similar results.
Yes, Puerto Ricans are U.S. citizens. But that’s not the full story. Although they are U.S. citizens, as residents of an unincorporated territory, Puerto Ricans are not afforded the same rights as people born in any of the 50 states.
To sort through the island’s complex national identity and legal standing, we spoke with Rogers M. Smith, a scholar of constitutional law, American political thought, and modern legal and political theory. Smith, Associate Dean for the Social Sciences and Christopher H. Browne Distinguished Professor of Political Science, has written extensively about Puerto Rico, including his recent paper "The Unresolved Constitutional Issues of Puerto Rican Citizenship." For Omnia, Smith provides background about Puerto Rico’s history, looking at how the territory’s past led to a troubled hurricane response.
What is a brief history of Puerto Rico’s legal relationship with the U.S.?
Puerto Rico was part of the Spanish Empire until the U.S. acquired it in 1898 during the Spanish-American War. Since then, the U.S. has essentially governed Puerto Rico as a colony, with various legislation and U.S. Supreme Court decisions shifting the island’s rights.
In 1901, the Supreme Court ruling Downes v. Bidwell defined Puerto Rico and the other territories acquired in the Spanish-American War as distinct from previous U.S. territories. Some justices referred to them as “unincorporated” territories. During World War I, recognizing Puerto Rico’s strategic value as a military base and afraid that its status might impede the American war effort, the U.S. Congress passed the Jones Act of 1917, granting Puerto Ricans U.S. citizenship. Three years later, Congress passed the Merchant Marine Act of 1920, also known as the Jones Act. Lately, we’ve heard a lot about this legislation in the media—it requires that all goods shipped to and from Puerto Rico be shipped on American ships with an American crew.
In 1922, the Supreme Court indicated that Puerto Rico was probably meant to be a permanent territory. Its decision—Balzac v. Porto Rico—claimed Puerto Ricans were so culturally and racially different they weren’t appropriate for full American citizenship and, therefore, were not protected by the U.S. Constitution in full force. This thinking reflected debates over the Spanish-American War acquisitions, as well as scholarly writings heavily shaped by 19th and 20th century thought about racial and cultural hierarchies.
Throughout the 1940s, America’s opposition to Nazi racism and a renewed embrace of human rights after World War II led to changes in U.S. attitudes toward Puerto Rico. In 1952, Puerto Rico gained commonwealth status from Congress, enhancing its powers of self-governance. It remains a commonwealth and an unincorporated territory.
What does it mean to be unincorporated?
In the most basic terms, an unincorporated territory is one that Congress has classified as not on the path to statehood. This is strictly a congressional decision.
The distinction between unincorporated and incorporated territories didn’t really exist until the Spanish-American War acquisitions. Before then, all territories were viewed as on the path to statehood. A. Lawrence Lowell, a political scientist and later president of Harvard University, first called for a distinction between territories. He explicitly argued that some populations were suitable for statehood and others were not, particularly those acquired during the Spanish-American War. Legal and political scholars then developed the distinction between unincorporated and incorporated, with the sole difference being whether Congress said a territory was on the path to statehood.
Some justices advanced the distinction in a number of the Insular Cases—these are a set of cases, including Downes v. Bidwell, decided in the early 1900s about the territories acquired during the war. But the Supreme Court didn’t fully embrace it until Balzac v. Porto Rico.
The racist thinking of Lowell and others has, of course, been strongly repudiated and discredited over the past century but the policies originally based on those views nevertheless persist in laws governing unincorporated territories.
There are those, and I am one of them, who regard Puerto Rico as still effectively a colony of the U.S.—a “perfumed colony,” as many Puerto Rican scholars say. Puerto Ricans do have certain tax advantages over other U.S. citizens, but they have no voting representation and Congress holds ultimate authority over them. Furthermore, Puerto Rico’s unincorporated status was originally justified by doctrines of racial superiority that the U.S. today has supposedly rejected—but that rejection is incomplete while this status persists. Its unincorporated status is also inconsistent with international treaties against colonialism signed by the U.S.
How are rights limited for citizens living in Puerto Rico?
Puerto Ricans have certain self-governing powers, but they have no voting representation in Congress or in presidential elections.
The people of Puerto Rico elect their own governing officials, although these officials’ actions are subject to review by Congress, since congressional statutes can override actions of the Puerto Rican government. Ultimately, Congress claims authority to decide the governing arrangements of Puerto Rico, which is why the territory is still governed by a national government in which they’re not represented.
As an unincorporated territory, Puerto Rico does not benefit from the full protections of the U.S. Bill of Rights. Puerto Ricans do, to be sure, have a wide range of fundamental civil rights. For example, due process rights apply, but not all criminal justice guarantees do—Puerto Ricans are not protected by the full Fourth, Fifth, Sixth, and Seventh Amendments. The constitution’s Fourteenth Amendment, which provides the right of citizenship, also does not apply to Puerto Rico. Citizenship for Puerto Ricans is granted by Congressional statute rather than under the constitution, which means Puerto Ricans could conceivably lose their citizenship through an act of Congress.
Can Puerto Rico trade freely with U.S. states?
The constitution says all states must be treated as one free trade zone. They can’t put up barriers against goods from other states, and tariffs and duties must be uniform for all of states. This doesn’t apply to Puerto Rico. Congress can enact—and did enact in the 1920 Jones Act and other legislation—special provisions governing the import and export of goods from Puerto Rico.
These regulations, many of which would be unconstitutional if imposed on a state, have changed over time. Recently, we saw an example when President Trump issued an Executive Order to modify shipping rules in the Jones Act to expedite getting goods to Puerto Rico.
The fact that Puerto Rico isn’t a state also means it’s not entitled to the bankruptcy protections federal statutes provide for states and municipal governments. This is one of the reasons Puerto Rico ran into its debt crisis. Even before the hurricane, which now has left the island in a state of disastrous collapse, people were fleeing Puerto Rico because of its economic crisis, a situation tied to the territory’s limited powers of economic and political self-governance.
Is the troubled hurricane response related to Puerto Rico’s status as an unincorporated territory?
There’s no simple answer to this question. It’s certainly true that the Puerto Rican government has failed to make investments in infrastructure that are vital for economic development and that would have helped the island withstand much of the hurricane—for example, we’ve recently learned about the island’s very old power grid. Some of this responsibility lies with the Puerto Rican government and people. But it’s also true that Puerto Rico has operated for more than a century without the powers of economic self-regulation, government, and development that states and independent nations possess.
Even as Puerto Rico’s government lacks the full range of powers necessary to promote the development of its economy and people, through much of modern history, Congress has paid relatively little attention to Puerto Rico. So the officials who have cared have lacked power and the officials who have had power haven’t cared, a combination that doesn’t make for a thriving economy or infrastructure. These factors have contributed to the challenges of the hurricane response politically, economically, and logistically.
I would also add the current disaster makes it clear that the status of Puerto Rico is not working for the Puerto Rican people or for the U.S. I regard its status as a disgrace to the U.S., and I hope that, now that the territory has the world’s attention, we will act to remedy it by listening to the voices of the Puerto Rican people.
Do the Puerto Rican people want statehood?
Historically, Puerto Ricans themselves have been deeply divided on whether they want statehood, commonwealth status, or independence. The division has been one reason Puerto Rico’s unincorporated status persists. In a June 2017 referendum, however, 97 percent of Puerto Ricans who voted favored statehood (though turnout in the referendum was only 23%). Change may be on the horizon ... although it’s unlikely in the short term.