Sunday, September 20, 2009

A Constitutional Anomaly?: The Legal Status of Puerto Rico

I´d like to follow up on previous posts on the US Constitution. There is an aspect of the US constitutional arrangement that is not usually discussed: It is striking that Puerto Rico's juridical order receives little if any attention in contemporary constitutional theory. With the exception of a few essays, American constitutional theorists have treated the case of Puerto Rico as a curious but unimportant anomaly in an otherwise democratic polity, therefore undeserving serious academic attention. Joel Colón-Ríos (co-blogger) and I have written about this in the past.
Puerto Rico is legally and politically subordinated to the U.S.: Since 1898, all U.S. laws apply with full force in the island, even when Puerto Ricans do not have the right to vote in U.S. Presidential Elections and do not elect any voting representative to the U.S. Congress. Furthermore, Puerto Rico’s legal system does not provide any means to terminate the aforementioned relation of subordination. The amendment clause of the Constitution of the Commonwealth of Puerto Rico prohibits any amendment incompatible with the current juridico-political relationship between the island and the U.S.
Do co-bloggers have any thought about this?


  1. Christina Duffy Burnett (Columbia Law) has written quite a lot of insightful articles on this (she's from Puerto Rico so I presume she's writing something close to heart). I think Sanford Levinson also wrote an important essay on it. While it is not a central theme in American constitutional studies, I am not sure if they think it not significant.

  2. I just finished a biography of C.C. Langdell (by Bruce Kimball). The Poor Old White-Whiskers (Frankfurter's nickname for Langdell). Kit Langdell was one of the early commentators of Insular Cases, and he shared the racist and imperialist assumptions of his contemporaries. I don't know anything about the topic, but considering how seriously issues like equality, racial justice, and political rights are taken in today's academia, it seems a bit surprising. It seems a worse blemish than the requirement that the president has to be a native-born American. If you think this issue has been sufficiently discussed, what is in your view the best explanation for this?

  3. I'm not sure Anna was saying that the issue has been sufficiently discussed, but that there are some excellent scholars out there that have written on it and -- as you aptly point out Toni -- more people need to be reading this work, and paying attention to the challenges Puerto Rico poses for American constitutionalism.

    If you're interested in the Insular Cases, I suggest you read Burnett's piece "Untied States: American Expansion and Territorial Deannexation" 73 U Chi L R 797 (2005). Therein, she systematically demolishes the traditional understanding of the Insular cases while providing a new interpretation; in the process she offers some insights on what the cases really mean for Puerto Rico (and other "untied" territorial states) in the U.S. constitutional order.

    click here for the article on the CLS website

  4. Being Puerto Rican and having co-authored a piece on the topic with Martín I might be a bit prejudiced :), but I agree that the issue is not sufficiently discussed in American constitutional theory. One would think that the fact that a country that usually thinks of itself as a democracy (and as an exporter of democracy) has a colony in the 21st century, would be, at the very least, a constitutional 'scandal'.


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