Seminar: United States Territorial Possessions

LAW 6936 (2 credits)
Professor Pedro A. Malavet

Notes Part 4

America's Colony, Chapter 5: Legal and Political Theory
pages 117-131

How can the United States justify continued colonialism legally or morally (philosophically)?
Can the Federal Courts put an end to congressional inaction and continued colonialism?

The Problem of Colonialism
Puerto Rico’s colonial status —particularly its intrinsic legal and social constructs of second-class citizenships for the Puerto Ricans— is incompatible with contemporary law or a sensible theory of justice and morality.

“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.***

Chapter 5: Theoretical Schools & Basic Argument
Theories: Liberalism, LatCrit, Pluralistic Solidarity, Communitarianism
The Puerto Ricans’ cultural identity, which is distinguishable from the normative U.S. culture, and the territorial severability of the islands, entitle the Puerto Ricans to secede, if they so choose.

Liberal Citizenship, Ronald Dworkin states:
... the constitutive morality of liberalism ‘is a theory of equality that requires official neutrality amongst theories of what is valuable in life. *** liberalism cannot be based on skepticism. Its constitutive morality provides that human beings must be treated as equals by their government, not because there is no right and wrong in political morality, but because that is what is right. *** the liberal conception of equality is a principle of political organization that is required by justice, not a way of life for individuals.’ (pp.117-118)
Dworkin, Law’s Empire at 442.

Will Kymlicka
some discussions are directed at the articulated premises of specific liberal theorists, others at the habits and predispositions of liberal-minded politicians and jurists, yet others at some more nebulous world-view which underlies Western culture generally, not just our political culture. These different aspects of the liberal tradition are often in conflict with each other, as they are in any such tradition. (p. 118)

“Classical liberalism”
refers to a legal and political philosophy that “focuses on the idea of limited government, the maintenance of the rule of law, the avoidance of arbitrary and discretionary power, the sanctity of private property and freely made contracts, and the responsibility of individuals for their own fates.”
My concern is with liberalism as a normative political philosophy, a set of moral arguments about the justification of political action and institutions. Kymlicka, Liberalism Community and Culture, 9.

“Classical liberalism” and the U.S. Constitution
Reflecting its classical liberal origins, the U.S. Constitution enshrined into law an exclusive and unequal form of citizenship that accepted slavery, dispossessed Native Americans, and disenfranchised women.
And I might have added poor, certainly landless, white males and whites generally

U.S. “citizen” 1856 in Scott v. Sanford, p. 120
held that African slaves imported into the United States and their descendants, free or otherwise,
are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and whether emancipated or not, yet remained subject to their [sic] authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

Liberalism vs. Progressivism
Liberalism “is not always a progressive doctrine, for many classical liberals are skeptical about the average human being’s ability to make useful advances in morality and culture.” (p. 121)
Ryan, Liberalism, 293.

U.S. citizenship, 14th Amendment
Section 1 of the Fourteenth Amendment reads, in part: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Distinguish Formalism, Reality, Universality
Universal citizenship means a general entitlement to the formally equal citizenship that is basic to liberalism.

United States v. San Jacinto Tin Company, pp. 122-23
includes an unusually candid and powerful description of the dispossession of Chicanas/os [in spite of formal rights guaranteed by treaty]:
Those familiar with the notorious public history of land titles in this state need not be told that our people coming from the states east of the Rocky Mountains very generally denied the validity of Spanish grants . . . and, determining the rights of the holders for themselves, selected tracts of land wherever it suited their purpose, without regard to the claims and actual occupation of holders under Mexican grants. . . . Many of the older, best-authenticated, and most-desirable grants in the state were thus, more or less, covered by trespassing [“American”] settlers.

Cornell West on American Cultural Conservatism, p. 123
The irony of this cultural conservatism is that it tries to preserve a highly dynamic corporate-driven economy, a stable election-centered democracy, and a precious liberties-guarding rule of law. This irony constitutes the distinctive hybridity of American liberalism (in its classical and revisionist versions) ...
Cornel West, The Role of Law in Progressive Politics, in The Politics of Law: A Progressive Critique 709 (David Kairys ed., 1998).

Rubin Francis Weston on Race and American Imperialism, p. 124
Those who advocated overseas expansion faced this dilemma: What kind of relationship would the new peoples have to the body politic? Was it to be the relationship of the Reconstruction period, an attempt at political equality for dissimilar races, or was it to be the Southern “counterrevolutionary” point of view which denied the basic American constitutional rights to people of color? The actions of the federal government during the imperial period and the relegation of the Negro to a status of second-class citizenship indicated that the Southern point of view would prevail. ***.”

US Const. Art. I, Sec. 2, Cl 3 Sec. 2, Cl 3.
US Const. Art. I, Sec. 2, Cl 3 Sec. 2, Cl 3. Apportionment of Representatives and direct taxes.
[Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons.]

US Const. Art. I, Sec. 9, Cl 1 Sec. 9, Cl 1.
US Const. Art. I, Sec. 9, Cl 1 Sec. 9, Cl 1. Prohibited powers--Migration or importation of persons.
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

US Const. Art. IV, Sec. 2, Cl 3:
US Const. Art. IV, Sec. 2, Cl 3: Runaway slaves.
No Person held to Service of Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered upon Claim of the Party to whom such Service or Labour may be due.

Tugwel, on the Puerto Ricans, p. 124
Puerto Ricans, despite being U.S. citizens, were constructed as too sexual, brown, dumb, and foreign to satisfy the “liberal” New Dealer.

“Toleration,” p. 125
because the toleration is one extended by the majority as an act of self-restraint by the majority (as an act of social generosity) to share a social space with a culture that the majority believes does not merit to share such social space. For minorities, paternalistic toleration is often purchased at the heavy price of not being recognized as equal participants in the polity, ironically the very thing that toleration is meant to cure.
Addis, “On Human Diversity,” 120 (italics in original

CRT problems with “liberalism,” p. 125
“American liberalism diffuses the claims of American radicals by pointing to long-standing democratic libertarian practices, despite historic racist, sexist, class, and homophobic constraints. Hence, any feasible American radicalism seems to be but an extension of American liberalism.”
39. West, The Role of Law, 709.

Paradigm Shifts, p. 127
[A] scientific revolution occurs when one paradigm is replaced by another. Paradigm shifts cause scientists to view the world in new and different ways. During scientific revolutions, then, scientists experience perceptual shifts. According to [Thomas] Kuhn, the transition from one paradigm to another is a conversion experience that cannot be compelled by logical argument.
George A. Martínez, Philosophical Considerations and the Use of Narrative in Law, Rutgers Law Review 30 (1999): 683, 701 (notes omitted). Professor Martínez concludes, Since racial divisions are founded in something other than reasoni.e., deeply held prejudices and sentimentsperhaps it can only be undone by techniques, such as narrative that do not depend on reason (705, notes omitted).

Theory: A Type of CRT
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.

Communitarianism vs. Liberal Assimilation
“The relationship between the right and the good in liberalism: The individualism that underlies liberalism is valued at the expense of our social nature of our shared community.” (Kymlicka)
Traditional liberal theory simply fails to recognize the rights of a colonized people to exist as a free people rather than to be assimilated as individuals.

Kymlicka notes
that any of these claims would, if sound, pose a serious challenge to liberal beliefs about culture and community. Taken together, they suggest that liberalism is obviously inadequate in these matters, that liberals are denying the undeniable, neglecting the most readily apparent facts of the human condition. And this neglect is exacting a high price: liberals, in a misguided attempt to promote the dignity and autonomy of the individual, have undermined the very communities and associations which alone can nurture human flourishing and freedom. Any theory which hopes to respect these facts about the way in which we are socially constructed and culturally situated will have to abandon the atomistic and individualistic premises and the principles of liberal theories of justice. Kymlicka, Liberalism Community and Culture, 2.

Community and Culture
What does it mean for people to “belong” to a cultural community—to what extent are individuals’ interests tied to, or their very sense of identity dependent upon, the particular culture? And do people have a legitimate interest in ensuring the continuation of their own culture, even if other cultures are available in the political community—is there an interest in cultural membership which requires independent recognition in a theory of justice?
Will Kymlicka, Liberalism Community and Culture 3 (1989).

Liberalism with a Communitarian Lens
The communitarian concept of citizenship views the “citizen as a member of a community.” Herman Van Gunsteren, Four Conceptions of Citizenship, in The Condition of Citizenship 41 (Bart van Steenbergen, ed., 1994). “This conception strongly emphasizes that being a citizen means belonging to a historically developed community. Individuality is derived from it and determined in terms of it.” Id. Moreover, “identity and stability of character cannot be realized without the support of a community of friends and like-minded kindred.” Id.

Adeno Addis, p. 128 “[As a general rule, secession]:
is impractical partly because not all groups that believe themselves to be marginalized and excluded from the social and political life of the polity live in a defined territorial unit. In such circumstances, secession will not be a viable answer to the problem of exclusion and discrimination. Indeed, true that not all notion of separation under these conditions is likely to lead to a process of ethnic cleansing. …

Adeno Addis, p. 128 “[As a general rule, secession]:
is impractical … It is also true that not all groups that have grievances against a dominant majority want to secede, even if that were practically possible. They simply wish to participate equally and fully in the life of the political community.”

Adeno Addis, p. 128 on Pluralistic Solidarity
By this Addis means that solidarity alone is not enough, that solidarity must manage to respect diversity: “Emphasis on solidarity without providing the mechanism through which the fact of pluralism (and difference) can be recognized and normatively affirmed is to commit the error of the communitarian, who simply asserts solidarity, with the consequence that minorities will be either forcibly assimilated or forcibly removed. Either option is not, and ought not to be, attractive to minorities.” Addis, “On Human Diversity,” 126.

Martha C. Nussbaum, p. 129
“What should we teach our children?” Nussbaum writes, “Most important, should they be taught that they are, above all, citizens of the Untied States, or should they instead be taught that they are, above all, citizens of a world of human beings, and that, while they happen to be situated in the United States, they have to share this world with the citizens of other countries?”
Nussbaum, “Patriotism and Cosmopolitanism,” 6.

Iris Marion Young, p. 130
equal treatment requires everyone to be measured according to the same norms, but in fact there are no “neutral” norms of behavior and performance. Where some groups are privileged and others oppressed, the formulation of law, policy, and the rules of private institutions tends to be biased in favor of the privileged groups, because their particular experience implicitly sets the norm. Thus, where there are group differences in capacities, socialization, values, and cognitive and cultural styles, only attending to such differences can enable the inclusion and participation of all groups in political and economic institutions.
Iris Marion Young, Polity and Group Difference, in Beiner, ed., Theorizing Citizenship, 198.

Jürgen Habermas’s Constitutional Patriotism, pp.130-31
Examples of multicultural societies like . . . the United States demonstrate that a political culture in the seedbed of which constitutional principles are rooted by no means has to be based on all citizens sharing the same language or the same ethnic and cultural origins. Rather, the political culture must serve as the common denominator for a constitutional patriotism which simultaneously sharpens an awareness of the multiplicity and integrity of the different forms of life which coexist in a multicultural society.

Currently, as a matter of law, the Puerto Ricans suffer from a Democracy Deficit because they are subject to U.S. laws but are allowed only a marginal political role in the national process (Political Theater).
This is immoral and it ought to be unconstitutional (and perhaps it is).