Seminar: United States Territorial Possessions

LAW 6936 (2 credits)
Professor Pedro A. Malavet

Notes Part 1

I. America's Colony: Introduction, pages 1-14

This part of my book speaks for itself, it provides you my perspective on the materials and the approach that I will take during the course.

Pedro A. Malavet, America’s Colony: the Political and Cultural Conflict between the United States and Puerto Rico (NYU Press 2004; Paper back edition 2007; Electronic Edition 2010).

II. An Introduction to Critical Race Theory,
America's Colony: Chapter 1: An introduction to CRT

What is Critical Race Theory?
Critical Race Theory is the most exciting development in contemporary legal studies. This comprehensive movement in thought and life —created primarily, though not exclusively, by progressive intellectuals of color— compels us to confront critically the most explosive issue in American civilization: the historical centrality and complicity of law in upholding white supremacy (and concomitant hierarchies of gender, class, and sexual orientation)
Cornell West, foreword to Critical Race Theory, xi. Cited at page 16.

LatCrit Theory Defined
LatCrit theory is . . . discourse that responds primarily to the long historical presence and general sociolegal invisibility of Latinas/os in the lands now known as the United States.
Francisco Valdés, “LatCrit: A Conceptual Overview,” in ~fvaldes/latcrit/overview.shtml
Cited at page 15.
See also Francisco Valdés, “Under Construction: LatCrit Consciousness, Community, and Theory,” California Law Review 85 (1997): 1089, note 2; La Raza Law Journal 10 (1998): 3, note 2.

LatCrit Theory Defined
As with other traditionally subordinated communities within this country, the combination of longstanding occupancy and persistent marginality fueled an increasing sense of frustration among contemporary Latina/o legal scholars, some of whom already identified with Critical Race Theory (CRT) and participated in its gatherings.
Cited at page 15.

LatCrit Theory Defined
Like other genres of critical legal scholarship, LatCrit literature tends to reflect the conditions of its production as well as the conditioning of its early and vocal adherents.
Cited at page 15.

Comparative Victimology
“comparative victimology,” that is, “to situate a given group . . . at the top of an imagined hierarchy of oppression” intended to divide marginalized groups.
P. 16, citing Robert Westley, “Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations?” Boston College Law Review 40 (1998): 457, n. 111.

Black/White Binary, p.17
The relative invisibility of Latinas/os, Native Americans, Asian Americans, and other persons of color besides African Americans.
In other words, discussions about race in the United States are often based on the existence of only two races: blacks, who are subordinated to and by whites.

Black Exceptionalism
“the claim . . . that African Americans play a unique and central role in American social, political, cultural, and economic life, and have done so since the nation’s founding. From this perspective, the ‘black-white paradigm’ that [LatCrit scholar Juan] Perea condemns is no accident or mistake; rather it reflects an important truth.”
P. 17, citing Espinoza and Harris, “Embracing the Tar-Baby,” 1597 and 510.

Essentialism, p. 18
The concept of essentialism suggests that there is one legitimate, genuine universal voice that speaks for all members of a group, thus assuming a monolithic experience for all within the particular group—be it women, blacks, Latinas/os, Asians, etc. Feminists of color have been at the forefront of rejecting essentialist approaches because they effect erasures of the multidimensional nature of identities and, instead, collapse multiple differences into a singular homogenized experience.
Berta Esperanza Hernández-Truyol, “Latindia II—Latinas/os, Natives, and Mestizajes—Latcrit Navigation of Nuevos Mundos, Nuevas Fronteras and Nuevas Teorías,” University of California at Davis Law Review 33 (2000): 851, 862, n. 27 (citations omitted).

Shifting Bottoms, p. 18
The most important part of this process is to acknowledge diversity and to avoid the homogenization of entire groups as well as the pitfalls of comparative victimology.

Language Abuse? P. 19
I feel that the new emphasis on literary critical theory is as hegemonic as the world which it attacks. I see the language it creates as one which mystifies rather than clarifies our condition, making it possible for a few people who know that particular language to control the critical scene—that language surfaced, interestingly enough, just when the literature of peoples of color, of black women, of Latin Americans, of Africans began to move to “the center.”

Language Abuse, cont., p. 19
“And as a student of literature, I am appalled by the sheer ugliness of the language, its lack of clarity, its unnecessarily complicated sentence constructions, its lack of pleasureableness, its alienating quality. It is the kind of writing for which composition teachers would give a freshman a resounding F.”
P. 19, citing Barbara Christian, “The Race for the Theory,” in Making Face, Making Soul, Haciendo Caras: Creative and Critical Perspectives by Feminists of Color, ed. Gloria Anzaldúa (San Francisco: Aunt Lute Foundation Books, 1990): 338, 339.

“Popular Culture”
I am offended by the notion that simple language is a sign of simplemindedness.
I accept popular culture as culture.
Language sophistication for legitimate pedagogical and scholarly reasons, vs. mental masturbation

A different “voice”, p. 20
Different conceptual schemes and life experiences
Narrative microview vs. historical and policy-making macroview

Citizenship and “Foreignness”
the United States, if a person is racially identified as African American or white, that person is presumed to be legally a U.S. citizen and socially an American. . . . [But] these presumptions are not present for Asian Americans, Latinos, Arab Americans, and other non-Black racial minorities. Rather, there is the opposite presumption that these people are foreigners; or, if they are U.S. citizens, then their racial identity includes a foreign component.
P. 22, citing Neil Gotanda, “Asian-American Rights and the ‘Miss Saigon Syndrome,’” in Asian Americans and the Supreme Court, ed. Hyung-Chan Kim (New York: Greenwood Press, 1992), 1096.

Citizenship and “Racialization”, p. 23.
Michael Omi and Howard Winant use the term “racialization to specify the extension of racial meaning to a previously racially unclassified relationship, social practice or group. . . . [R]acialization is an ideological process, an historically specific one.”
citingMichael Omi and Howard Winant, Racial Formation in the United States: From the 1960s to the 1980s (New York: Routledge & Kegan Paul, 1986), 61–62.

One of the group of populations constituting humanity.
The Columbia Encyclopedia, Sixth Edition, 2001-05.

Race: Biological?
All human groups belong to the same species (Homo sapiens) and are mutually fertile. Races arose as a result of mutation, selection, and adaptational changes in human populations. The nature of genetic variation in human beings indicates there has been a common evolution for all races and that racial differentiation occurred relatively late in the history of Homo sapiens.

Race: Biological?
The differences among races are essentially biological and are marked by the hereditary transmission of physical characteristics. Genetically a race may be defined as a group with gene frequencies differing from those of the other groups in the human species (see heredity; genetics; gene).

Race: Genetic?
However, the genes responsible for the hereditary differences between humans are extremely few when compared with the vast number of genes common to all human beings regardless of the race to which they belong.

Race: Anthropological?
by limiting the criteria to such traits as skin pigmentation, color and form of hair, shape of head, stature, and form of nose, most anthropologists agree on the existence of three relatively distinct groups: the Caucasoid, the Mongoloid, and the Negroid.

Each of these broad groups can be divided into subgroups. General agreement is lacking as to the classification of such people as the aborigines of Australia, the Dravidian people of S India, the Polynesians, and the Ainu of N Japan.

Race: Scientific Limitations
Many physical anthropologists believe that, because there is as much genetic variation among the members of any given race as there is between different racial groups, the concept of race is ultimately unscientific and racial categories are arbitrary designations.

Race: Scientific Limitations
The term race is inappropriate when applied to national, religious, geographic, linguistic, or ethnic groups, nor can the biological criteria of race be equated with mental characteristics, such as intelligence, personality, or character.

Race: Social & Political Construct? P. 23
Ian F. Haney-López observed that “race is social, in the sense that the groups commonly recognized as racially distinct have their genesis in cultural practices of differentiation rather than in genetics, which plays no role in racial fabrication other than contributing the morphological differences onto which the myths of racial identity are inscribed.”

Example: The social construction of a U.S. Latina/o “race” p. 23
The social construction of a Latina/o “race” is not primarily based on or motivated by ethnicity and xenophobia, but rather by race and racism. This is not to suggest that culture, ethnicity and “foreignness” are not a part of this device but to emphasize the social construction of race(s). Latinas/os are racialized as a mixed, non-white race, and as it does with African Americans, this results in our social marginalization.

Race, not Ethnicity, pp. 23-24
Ethnicity, in contrast, includes “common geographic origin; migratory status; race; language or dialect; religious faith or faiths; ties that transcend kinship, neighborhood and community boundaries; an external perception of distinctiveness.”
Harvard Encyclopedia of American Ethnic Groups, ed. Stephen Thernstrom, (Cambridge, Mass.: Belknap Press, 1980), vi.

Example: U.S. Latinas/os
[Haney-Lopez explains that Race and ethnicity are not] essentially different; on the contrary … race and ethnicity are largely the same. [But they] should not be conflated because these two forms of identity have been deployed in fundamentally different ways. The attribution of a distinct ethnic identity has often served to indicate cultural distance from Anglo-Saxon norms. Left unstated but implicit, however, is a claim of transcendental, biological similarity: ethnics and Anglo-Saxons are both White. The attribution of a distinct racial identity, on the other hand, has served to indicate distance not only from Anglo-Saxon norms, but also from Whiteness. Racial minorities are thus twice removed from normalcy, across a gap that is not only cultural, but supposedly innate.

Cultural Nationalism?
In linking race, ethnicity, and citizenship, it is important to avoid the evils of ethnic strife and balkanization while celebrating rather than imposing difference; that is, community consciousness cannot be allowed to degenerate into fascism. P. 25.

America's Colony: Chapter 2: The Legal Relationship Between the U.S. and Puerto Rico

Independencia de América
Argentina, 1816
Chile, 1818
Colombia, 1819
México, 1821
Costa Rica, 1821
Perú, 1821
Brasil, 1822

The Spanish Colony
First Spanish Constitution in 1812: legal Spanish citizenship for white colonial subjects
The Revolutions of September 1868
Spanish Constitution of 1876 allowed new freedoms for Cubans and Puerto Ricans
1895-1898, special laws give Spanish citizenship to Cubans and Puerto Ricans, local elected government and “autonomy”.

Treaty of Paris, p.37
Spain cedes to the United States the island of Puerto Rico and other islands now under Spanish sovereignty in the West Indies, and the island of Guam in the Marianas or Ladrones.

Treaty of Paris Art. IX: Citizenship, p. 37
The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.

President G.W. Bush’s Task Force
The U.S. Constitution [currently] allows for three options for the future status of Puerto Rico: [1] continuing territorial status (including the current Commonwealth system), [2] statehood, and [3] independence.
Report by the President’s Task Force on Puerto Rico’s Status 5 (The White House, Dec. 2005).

Territorial Status Alternatives
Occupied but foreign
Occupied, “American,” but unincorporated
Occupied , “American,” and incorporated

Postcolonial Status Alternatives
Constitutional type of bilateral compact (by constitutional amendment and/or treaty)

Territorial Clause Art. IV, Sec. 3, Clause 2
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any claims of the United States, or of any particular state.

The Territorial Process before 1898
Northwest Ordinances
Johnson v. M’Intosh (1823)
Scott v. Sanford (1854)

Scott v. Sanford (1854)
But no power is given to acquire territory to be held permanently in that character.
[Territory] is acquired to become a state, and not to be held as a colony and governed by Congress with absolute authority.
Other view: “Equal Protection,” the Constitution follows the flag. The territorial clause must be limited by constitutional provisions protecting individuals.

In 1898 Colonialism Won
The U.S. had to become a colonial power to compete with other world powers (now superpowers).
Statehood no longer the end result of territorial acquisition.
Incorporated vs. Unincorporated cleavage largely determines which constitutional rights apply in a territory.

Downes v. Bidwell, 182 U.S. at 343-4 (1902), p. 40
*** the presumption necessarily must be that [the Congress], which within its lawful sphere is but the expression of the political conscience of the people of the United States, will be faithful to its duty under the Constitution, and, therefore, when the unfitness of particular territory for incorporation is demonstrated the occupation will terminate. I cannot conceive how it can be held that pledges made to an alien people can be treated as more sacred than is that great pledge given by every member of every department of the government of the United States to support and defend the Constitution.

“Colony” means
the status of a polity with a definable territory that lacks sovereignty because legal/political authority is exercised by a peoples distinguishable from the inhabitants of the colonized region.
Ediberto Román, Empire Forgotten: The United States’ Colonization Of Puerto Rico, 42 Vill. L. Rev. 1119, 1137-38 (1997). Dependent territory [is] a territory which is geographically separate and is distinct ethnically and/or culturally from the country administrating it.***

Jones Act (1917): Statutory Citizenship, p. 40
ch. 145, 5, 39 Stat. 951, 953 (1917)
conferring U.S. citizenship on all “citizens of Porto Rico [sic];” it adopted the definition of Puerto Rican citizenship included in the Foraker Act.

Fundamental Civil Rights of Territorial Inhabitants, p. 41
Only limitation on the broad rights of the Federal Government over territories under Territorial Clause, and inherent powers of national sovereignty.
But, it is limited by judicial timidity in defining and enforcing these “fundamental rights”

Balzac Ruling
Fundamental rights, generally those guaranteed by the Due Process Clause, would automatically apply in the unincorporated territories. However, personal freedoms would not. Among the latter are the right to trial by jury and the right to uniform taxation.

Puerto Ricans v. “Americans”, p. 41
... Alaska was a very different case from that of Porto Rico. It was an enormous territory, very sparsely settled and offering opportunity for immigration and settlement by American citizens. It was on the American Continent and within easy reach of the then United States. It involved none of the difficulties which incorporation of the Philippines and Porto Rico presents.…
Balzac v. People of Porto Rico, 258 U.S. at 309 (1922)

1952: Commonwealth, p. 43
On July 3, 1950, the U.S. Congress approved law 600 to give Puerto Ricans the right to form an elected self-government. “Fully recognizing the principle of government by consent, this act is now adopted in the nature of a compact so that the people of Puerto Rico may organize a government pursuant to a constitution of their own adoption.”

1952: Commonwealth: PPD legal position, pp. 43-44
Whereas, the single word “commonwealth,” as currently used, clearly defines the status of the body politic created under the terms of compact existing between the people of Puerto Rico and the United States, i.e., that of a state which is free of superior authority in the management of its own local affairs but which is linked to the United States of America and hence is a part of its political system in a manner compatible with its federal structure.

1952: Commonwealth: PPD legal position, pp. 43-44
Puerto Rico is acquiring “complete self-government, the last vestiges of colonialism having disappeared in the principle of Compact [between Puerto Rico and the United States of America].”

1952, Commonwealth, U.S. legal position, p. 45
the resolutions of the Puerto Rican constitutional convention … “expresse[] the views of the people of Puerto Rico as to the status they have now achieved.”

Subject to the Territorial Clause
“Congress may continue the current system indefinitely, but it also may revise or revoke it at any time.” Task Force at p. 5.

Jaime Pieras, Jr., U.S. District Judge, p.48
The present political status of Puerto Rico has enslaved the U.S. citizens residing in Puerto Rico by preventing them from voting in Presidential and Congressional elections and therefore is abhorrent to the most sacred of the basic safeguards contained in the Bill of Rights of theConstitution of the United States—freedom.
Igartúa de la Rosa v. United States, 107 F. Supp. 2d 140, 141, 148 (D. Puerto Rico 2000).

Tiny Islands in a Big World

U.S. Territories
Puerto Rico (1898) (pop. 3.9 million)
Guam (1898) (pop. 167k)
American Samoa (c. 1900) (pop. 58k)
The Virgin Islands (1916) (pop. 109k)
The Commonwealth of the Northern Marianas (1947) (pop. 80k)

“Special Responsibilities”
Federated States of Micronesia (pop. 108k)
Marshall Islands (pop. 59k) and
Palau (pop. 20k)
Remnants of the old Trust Territory of the Pacific Islands, acquired in 1947 (with the Marianas)
Members of the U.N. and the “Anti-Terror” Coalition of the Willing
Statutory Relationship with the U.S.