Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution


In this groundbreaking study of American imperialism, leading legal scholars address the problem of the U.S. territories. Foreign in a Domestic Sense will redefine the boundaries of constitutional scholarship.
More than four million U.S. citizens currently live in five “unincorporated” U.S. territories. The inhabitants of these vestiges of an American empire are denied full representation in Congress and cannot vote in presidential elections. Focusing on Puerto Rico, the largest...

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In this groundbreaking study of American imperialism, leading legal scholars address the problem of the U.S. territories. Foreign in a Domestic Sense will redefine the boundaries of constitutional scholarship.
More than four million U.S. citizens currently live in five “unincorporated” U.S. territories. The inhabitants of these vestiges of an American empire are denied full representation in Congress and cannot vote in presidential elections. Focusing on Puerto Rico, the largest and most populous of the territories, Foreign in a Domestic Sense sheds much-needed light on the United States’ unfinished colonial experiment and its legacy of racially rooted imperialism, while insisting on the centrality of these “marginal” regions in any serious treatment of American constitutional history. For one hundred years, Puerto Ricans have struggled to define their place in a nation that neither wants them nor wants to let them go. They are caught in a debate too politicized to yield meaningful answers. Meanwhile, doubts concerning the constitutionality of keeping colonies have languished on the margins of mainstream scholarship, overlooked by scholars outside the island and ignored by the nation at large.
This book does more than simply fill a glaring omission in the study of race, cultural identity, and the Constitution; it also makes a crucial contribution to the study of American federalism, serves as a foundation for substantive debate on Puerto Rico’s status, and meets an urgent need for dialogue on territorial status between the mainlandd and the territories.

Contributors. José Julián Álvarez González, Roberto Aponte Toro, Christina Duffy Burnett, José A. Cabranes, Sanford Levinson, Burke Marshall, Gerald L. Neuman, Angel R. Oquendo, Juan Perea, Efrén Rivera Ramos, Rogers M. Smith, E. Robert Statham Jr., Brook Thomas, Richard Thornburgh, Juan R. Torruella, José Trías Monge, Mark Tushnet, Mark Weiner

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From the Publisher
“I can hardly contain my enthusiasm for this project, which brings together an array of authoritative scholars in the field. “Foreign in a Domestic Sense” is the most important work of its kind of our generation, a book that advances the scholarship while having a material impact on current and future debates about Puerto Rico’s self-determination.”—Francisco A. Scarano, author of Puerto Rico: Cinco Siglos de Historia
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Product Details

Meet the Author

Christina Duffy Burnett is a law clerk in the U.S. Court of Appeals for the Second Circuit and is currently Research Associate in the Program in Law and Public Affairs at Princeton University.

Burke Marshall is Nicholas deB. Katzenbach Professor of Law and George W. Crawford Professorial Lecturer in Law, Emeritus, at Yale Law School. Among numerous honors and accomplishments, he served as Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice from 1961–1965 and is the author of Federalism and Civil Rights.

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Foreign in a domestic sense

Puerto Rico, American expansion, and the Constitution
By Christina Duffy Burnett

Duke University Press

ISBN: 0-8223-2698-1

Chapter One

Some Common Ground Jose A. Cabranes

It is now a century since the war that brought Puerto Rico under the American flag-the war that John Hay described (in a famous letter to his friend and political ally Theodore Roosevelt) as "the splendid little war; begun with the highest motives, carried on with magnificent intelligence and spirit, favored by that fortune which loves the brave." In this volume we commemorate that "splendid little war" and renew a conversation on the subject that, a century ago, convulsed American politics and the Supreme Court-the constitutional law and politics of national identity. This was serious business in 1898, and it is serious business today.

Our terms of discourse will consist largely of constitutional doctrine and political theory. But my task is on a less grandiose plane. It is merely to recall that national identity is inevitably shaped less by theory than by history. And colonial peoples are, everywhere and always, exquisitely sensitive about the history of their relationship to the metropolitan state-a history of which others may be blissfully ignorant, but a history which the colonial people live and breath every single day.

Understandably, the colonial people's vision of the future will be greatly affected by their viewof the past, maybe as much as by abstract notions of equality and freedom. Accordingly, we do well to take seriously the observation of the late Richard Pares of Oxford University, a student of British colonial history, that in these matters "[g]ood history cannot do so much service as money or science; but bad history can do almost as much harm as the most disastrous scientific discovery in the world."

It is the common experience of all colonial peoples-not merely the experience of the Puerto Ricans-to feel that history has dealt them an inadequate hand. There is no such thing as colonialism that is not accompanied by an acute and deeply felt sense of historical aggrievement-feelings of having long been subordinated, slighted, ignored, and marginalized. Expressions of anger or frustration on this score, by friend or foe of the metropolitan state, should surprise no one; they are in the nature of things, commonplace and perfectly understandable. Powerlessness is what colonialism is all about. And decolonization in all its varieties-whether it is national independence, autonomy or free association, or political integration into the metropolitan state on the basis of equality-is everywhere supposed to be the antidote to this historical political impotence.

So it is that even well-intentioned political initiatives and good-faith statements of common interest, conveyed without a full appreciation of historical context, can cause confusion and agitation in many sectors of a colonial society. And when the dust settles, persistent hostility and frustration, or worse, may be all that remains.

Because my comments concern history and our terms of discourse, in an effort to identify some common ground among all the participants in this debate I pause for a moment to dwell on a word that I have already used, and one which we will hear often in any discussion of Puerto Rico's history and its future-colonialism.

Americans, whose country was born of anticolonial struggle, often (and understandably) cringe at the word colonialism when it is applied to United States history or practice-they react with surprise, and even irritation, in those rare instances when they are required to think about the people of the overseas territories of the United States. This reaction to the word colonialism is understandable, because the term became a bad word in the past half century; it was made a bad word by those who successfully revolted against colonialism, and also by the propaganda machinery of the Soviet Union, which during the Cold War ceaselessly attacked the Western powers on account of their overseas territories.

In a striking example of the politics of language, the word colonialism became in our time a political expletive. Most Americans have come to think that colonialism is something nasty and mean by definition, something that may be attributable to certain European states but certainly not to the United States.

So when the word colonialism is uttered to describe some aspects of the American Century, it tends to raise more than a brow or two. All the more reason, therefore, to try to speak plainly about our history and avoid the confusion that frequently accompanies the use of this word as a cliche and an epithet. I, for one, do not use it in this pejorative sense.

Speaking plainly and honestly about our history requires us to acknowledge, without rancor and without embarrassment, that colonialism is a simple and perfectly useful word to describe a relationship between a powerful metropolitan state and a poor overseas dependency that does not participate meaningfully in the formal lawmaking processes that shape the daily lives of its people.

Colonialism is a useful term for our purposes especially because it is decolonization that is, in truth, the animating force behind each of the major political camps in Puerto Rico today. However much they may each disagree with this point, however much they may differ in their choice of means-and however much they attack the authenticity or legitimacy of their adversaries-Puerto Ricans do share a common goal of seeing Puerto Rico evolve, by mutual consent, toward a greater measure of control over its own destiny. For a great many, this means statehood or some form of political autonomy. For others, far fewer in number, independence. Crucially, even those who favor the island's present commonwealth status have consistently demonstrated their own dissatisfaction with the status quo, and their leaders have repeatedly proclaimed their desire for greater autonomy and self-government.

In short, it is fair to say that all of Puerto Rico's political movements seek to chart a path toward a postcolonial future, whatever form it may take. The central political problem of Puerto Rico remains, as ever, decolonization and how it is to be fully achieved.

So for all the differences in outlook that emerge from any discussion of decolonization in Puerto Rico, it bears emphasizing that a remarkably broad consensus for change and constitutional reform exists in Puerto Rico. There is some common ground as to ends, if not as to means.

In recent years, Puerto Rico's postcolonial destiny has been in the news again, reappearing on Washington's radar screen as it does periodically whenever a major election or plebiscite is in the offing. In March 1998, the U.S. House of Representatives adopted, by a margin of only one vote, a bill sponsored by Representative Don Young of Alaska, the Republican chairman of the House Resources Committee, Speaker Newt Gingrich, and Resident Commissioner Carlos Romero Barcelo of Puerto Rico (the island's only representative in Congress). The Young bill, which was supported by President Clinton and most House Democrats, would establish a long-term process for consulting the electorate of Puerto Rico on its choice of a permanent political status.

To most Americans, the vote in the House came as a surprise. Nowadays the subject of Puerto Rico's political status is obscure and difficult to understand. Indeed, the treatment of the issue by some elements of the media and some celebrity commentators was confused and full of conceit, revealing an embarrassing ignorance of the history of the United States. The issue was often handled facetiously, regarded as trivial or even silly. All in all, what little discussion there was of the subject seemed to me unworthy of serious commentators on public affairs.

This was not always so. From the hindsight of a hundred years it may be difficult to believe, but at the turn of the century the future of Puerto Rico and the Philippines, and their relationship to the United States, were subjects of the greatest significance to all Americans. It dominated the presidential campaign of 1900, and it precipitated constitutional litigation described by John W. Davis as "the most hotly contested and long continued duel in the life of the Supreme Court." Another prominent lawyer of the time, Frederic R. Coudert, reported that these cases had caused more turmoil on the Supreme Court than any case since Dred Scott.

Why was this so? Because then, far more so than now, the question of Puerto Rico's political status was understood to raise basic questions of national identity-the national identity of the Puerto Ricans, for sure, but also the national identity of the United States.

The "paramount issue" of the presidential election of 1900-what today we would call the "hot button issue" of the campaign-was, according to William Jennings Bryan and the Democratic Party platform of that year, "imperialism" and, in particular, the decision of the McKinley administration and Congress to retain indefinitely the insular territories extracted from Spain in the Treaty of Paris of 1898, which ended the Spanish-American War.

Whether these territories would be regarded as "part of the United States" or as colonies in the European imperial tradition, and how the people of these territories, including Puerto Rico, would be treated under the American flag, were reduced to the famous question, "Does the Constitution follow the flag?" The political division on this question was between (on the one hand) the advocates of a "large policy" or imperialism, advocated most vigorously by the heroic Republican candidate for vice president, Theodore Roosevelt, and (on the other hand) those like Bryan and the Democratic Party who claimed that the Constitution of the United States had no room for territories whose people could be held indefinitely in a position of political subordination.

From the beginning, the debate on imperialism revealed many contradictions and ironies. Some of the anti-imperialists, who argued against annexation of these insular territories, were not advanced thinkers but merely racists, who had nothing but contempt for the Filipinos and the Puerto Ricans and simply wanted to have nothing to do with them. And it was often the proponents of colonialism who showed respect for these island peoples and who expressed the hope that they would become a part of the United States.

In 1900, McKinley and Roosevelt resoundingly trounced William Jennings Bryan and the Democrats, thereby resolving the "paramount" political issue of the campaign in favor of imperialism. Within months, the Supreme Court followed, blessing the American colonial experiment in the now largely forgotten Insular Cases. The Court did so by answering (in effect) that the Constitution did not "follow the flag." To simplify greatly, the Court held that Puerto Rico and the other new insular territories were not "foreign territory," but it also held that they were not "a part of the United States" for all constitutional purposes.

The constitutional theory enunciated by the Insular Cases, known as the doctrine of territorial incorporation, had been devised in the Harvard Law Review in 1899, in an article by Abbott Lawrence Lowell, then a professor of government and soon to become president of Harvard University. The doctrine of territorial incorporation recommended by Lowell and adopted by Justice Edward Douglass White (and, in due course, by the whole Court) held that "whilst in an international sense [Puerto] Rico was not a foreign country, since it was ... owned by the United States, it was foreign to the United States in a domestic sense because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession."

In sum, Congress was empowered by the Court "to locally govern at discretion." In other words, the United States could hold Puerto Rico and the other insular territories indefinitely, without ever making them "a part of the United States" and without holding out the promise of eventual statehood or according their people the full panoply of constitutional rights enjoyed by the citizens of the states.

The Supreme Court decisions in the Insular Cases of the turn of the century, which determine the fate of Puerto Rico to this very day, prompted the great Irish-American political sage of the turn-of-the-century tabloids, Mr. Dooley, sarcastically to articulate one of the most enduring, and most quoted, rules of American constitutional adjudication (and I translate now from the New York Irish of Mr. Dooley): "[N]o matter whether the constitution follows the flag or not, the supreme court follows the election returns."

The doctrine of territorial incorporation has survived for a century. It is fair to say that it was devised in order to make colonialism possible. Ironically, this constitutional doctrine, by recognizing Congress's plenary authority to determine the status of "unincorporated" territories such as Puerto Rico, also made possible great and innovative political changes over time-changes that reflected the social, economic, and political development of the island, and reflected also the democratically expressed aspirations of its people.

There can be little doubt that change came slowly, too slowly in the views of virtually all Puerto Ricans. In the flush of war and the rush for empire, the desperately poor people of one of Spain's most neglected colonies had been promised, by the commanding general of the American invading forces, "the fostering arm of a nation of free people, whose greatest power is in its justice and humanity to all living within its fold." They had been assured that the object of American rule would be to "promote your prosperity and to bestow upon you the immunities and blessings of the liberal institutions of our government."

By this standard, most Puerto Ricans have counted the first half century of American rule, from 1898 until 1948, as a disappointment. Puerto Rico's governors were appointed by the president of the United States, and it was not until 1946 that President Truman appointed a Puerto Rican to that position. Under two "organic acts" passed by Congress in 1900 and 1917, Puerto Rico's local government was patterned generally on those of the mainland territories and states, but from 1900 until 1917 the Puerto Rican electorate voted only for the lower house of a bicameral legislature, with significant power vested in an appointed upper chamber. It was not until 1917 that Puerto Ricans were accorded an elected senate and made citizens of the United States. And during this first half century, their acute and widespread poverty knew little relief.

A painful, but accurate, snapshot of Puerto Rican society during the first half century of colonial rule was provided by the great American journalist John Gunther in 1941, in one of his famous Inside books-Inside Latin America (and I quote only a bit of his devastating portrait):

I plodded through the streets of San Juan, and I took a brief trip or two into the countryside. What I found appalled me.

I saw rickety squatter houses perched in garbage-drenched mud....

I saw native villages steaming with filth-villages dirtier than any I ever saw in the most squalid parts of China....

I saw, in short, misery, disease, squalor, filth. It would be lamentable enough to see this anywhere. It would be shocking enough in the remote uplands of Peru or the stinking valleys of the Ganges. But to see it on American territory, among people whom the United States has governed since 1898, in a region for which our federal responsibility has been complete for 43 years, is a paralyzing jolt to anyone who believes in American standards of progress and civilization.

It was not until the election of the populist and charismatic Luis Munoz Marin as governor, in 1948-with his determination to transform Puerto Rico by attracting capital investments from the mainland and by massive efforts to attack poverty and to lift standards of living-that Puerto Rico began its rise from abject misery and its concomitant movement toward political empowerment of the Puerto Rican people.


Excerpted from Foreign in a domestic sense by Christina Duffy Burnett Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Between the Foreign and the Domestic: The Doctrine of Territorial Incorporation, Invented and Reinvented 1
Some Common Ground 39
Teutonic Constitutionalism: The Role of Ethno-Juridical Discourse in the Spanish-American War 48
A Constitution Led by the Flag: The Insular Cases and the Metaphor of Incorporation 82
Deconstructing Colonialism: The "Unincorporated Territory" as a Category of Domination 104
Installing the Insular Cases into the Canon of Constitutional Law 121
Fulfilling Manifest Destiny: Conquest, Race, and the Insular Cases 140
U.S. Territorial Expansion: Extended Republicanism versus Hyperextended Expansionism 167
Constitutionalism and Individual Rights in the Territories 182
Partial Membership and Liberal Political Theory 209
Injustice According to Law: The Insular Cases and Other Oddities 226
One Hundred Years of Solitude: Puerto Rico's American Century 241
A Tale of Distorting Mirrors: One Hundred Years of Puerto Rico's Sovereignty Imbroglio 251
Law, Language, and Statehood: The Role of English in the Great State of Puerto Rico 289
Puerto Rican National Identity and United States Pluralism 315
Puerto Rican Separatism and United States Federalism 349
The Bitter Roots of Puerto Rican Citizenship 373
A Note on the Insular Cases 389
Notes on Contributors 393
Index 395
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