Federal Territorial Law is Broken; Can the Courts Fix It?

By guest contributor Howard Hills

In the 1901 case of Downes v. Bidwell, the U.S. Supreme broke with our nation’s anti-colonial principles and allowed the U.S. Government to rule foreign lands acquired by the U.S. outside the umbrella of the Constitution. The peoples were not found to be U.S. citizens. The court invented a new political status and named the islands “non-incorporated” territories.

The Court expected non-incorporation to be a temporary transitional status lasting only “for a time”. Yet, in 1922 the high court ruled in Balzac v. Puerto Rico that the Downes case doctrine denying rights under the Constitution could be imposed on U.S. citizens in Puerto Rico.

The glaring inconsistency between Downes and Balzac has created a state of arrest in Federal policy regarding territories. Can what the Supreme Court broke be fixed by Federal courts?

Sorting out the mess created by Balzac could be left to the political branches of the Government. But first, the Congress would need to recognize what went wrong with the court’s decision in Downes.

The court’s limitation of its ruling in Downes to non-citizens is confirmed in a passage from its opinion, largely overlooked until former U.S. Attorney General Thornburgh pointed to its significance in a 2007 study:

“… in the case of Porto Rico and the Philippines…the civil rights and political status of the native inhabitants . . . shall be determined by Congress. In all these cases there is an implied denial of the right of the inhabitants to American citizenship until Congress by further action shall signify its assent thereto.”

Given the divided vote of the court and Associate Justice Harlan’s searing dissent, it is clear that if the people in the Philippines and Puerto Rico had been U.S. citizens in 1901 the court would not have gone along with invention of the doctrine of non-incorporation. Instead, there can be no reasonable doubt the court would have done what it did in the case of Hawaii two years later (Mankichi 1903) and Alaska two years after that (Rassmussen 1905). In those two cases, the Court ruled that the Congress had conferred citizenship and thereby incorporated the territories into the Union under the Constitution.

It is equally clear that the Balzac case, which continued to apply the non-incorporation doctrine of the Insular Cases to Puerto Rico after U.S. citizenship had been granted, was inconsistent with the Downes case. Until Balzac, the Insular Cases never applied to citizens.

The options for resolving the blatant inconsistency between the 1901 ruling in the Downes line of Insular Cases and the 1922 Puerto Rico case require political measures not usually performed by the courts.

For example, the court could consider terminating U.S. citizenship and returning the population of the territory to the status of nationals under the original Downes line of Insular Cases. But that would raise complex constitutional issues about whether the Afroyim v. Rusk ruling against loss of citizenship would prevent a reversion to nationality. Perhaps the court could uphold loss of citizenship based on the idea that statutory citizenship is based on nationality.

Then again, both citizenship through naturalization and through birth in a territory are conferred by statutes adopted under the Uniform Naturalization and Territory Clauses of the Constitution, rather than through the Citizenship Clause of the 14th Amendment, which applies to parts vs. possessions of the United States. Since Balzac precludes full-blown constitutional scrutiny, perhaps reverting to “national but not citizen” status would be sustained as territorial law under exceptions to Afroyim allowed by the court’s ruling in Rogers v. Bellei.

A less complicated alternative to resolve inconsistency between the 1922 Balzac case and the Hawaii and Alaska cases would be for the court to reverse Balzac and extend the Constitution in full to Puerto Rico, as if it had been classified as an incorporated territory in 1922. Most citizenship benefits would apply until full equality would be attained through statehood.

But, obviously, ending U.S. citizenship or incorporating Puerto Rico both involve political status and self-determination issues that do not lend themselves to judicial disposition. Phasing out citizenship or moving toward statehood are policies historically originating in the legislative and executive departments of the U.S. Government.

The anti-colonial tradition of the Northwest Ordinance can be restored for the last large and populous territory by enabling Puerto Rico to become a State if it chooses, or to become an independent nation if it chooses (with or without an association with the U.S. that either nation could end). That, too, appears to be a political question to be answered by Congress based on self-determination.

Thornburgh (CSIS 2007) suggests the courts could help fix what the courts broke by granting declaratory relief to claimants seeking rights of U.S. citizenship under the Constitution. Confirming that the 1922 Balzac case is “constitutionally flawed” would be a welcome first step, but Congress and the citizens of Puerto Rico finally will have to decide the territory’s future.

Given the 2012 vote for statehood in Puerto Rico, the time to decide is now. That is why in 2014 the Congress authorized a vote on a legally valid status option or options that can finally resolve the question of Puerto Rico’s ultimate status to confirm the 2012 vote.

The stage is set to resolve the inconsistency between the cases concerning Puerto Rico (starting in 1901 and ending in 1922), on one hand, and the citizenship based incorporation cases that came in 1903 (Hawaii) and 1905 (Alaska), on the other. But tidying up Federal jurisprudence is only one step in a process that must include Congressionally recognized self-determination on a fully democratic status for U.S. citizens in Puerto Rico that secures equal rights of citizenship. 

Howard Hills advised the Reagan Administration on territorial status as a counsel working under the National Security Council. The Puerto Rico report welcomes and encourages submissions from our readers.