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Article Excerpt
INTRODUCTION
The presidential election between Albert Gore and George W. Bush in 2000 provided an interesting lesson on voting in America. The closeness of the race (1) highlighted the importance of the right to vote and gave some truth to the phrase "every vote counts." (2) In addition, a recount prompted by Gore in Florida yielded varying results, illustrating the surprising fact that every election has its share of uncounted votes. (3) While the nation's attention was focused on the historic spectacle in the Sunshine State, few were aware of the noteworthy events also unfolding in Puerto Rico. (4)
Many Americans are aware that Puerto Rico joined the United States in 1898 (5) and that the Puerto Rican people became citizens in 1917. (6) Most Americans outside of Puerto Rico are nevertheless unaware that the U.S. citizens who live on the island have never had the right to vote in presidential elections. (7) This puzzling circumstance was challenged in anticipation of the 2000 presidential election in Igartua de la Rosa v. United States II. (8) The Federal District Court of Puerto Rico held that the 3.8 million people residing on the island, (9) 2.4 million of whom are registered voters, (10) had a fundamental right to vote in presidential elections based on their American citizenship. (11) The First Circuit quickly reversed this bold ruling, holding that Article II of the Constitution grants the power to elect the president only to the states, and not to the people. (12)
This Comment highlights Puerto Rico's continuing political troubles under the U.S. Constitution and argues that the island must become the United States' fifty-first state. Part I explores the history of Puerto Rico's relationship with the United States. The Insular Cases are discussed to illustrate Puerto Rico's peculiar status under the Constitution. In addition, the legal insignificance of the island's evolution to commonwealth status will be discussed, leading to the conclusion that Puerto Rico must choose statehood to remedy its constitutional status problems.
Part II reviews Igartua de la Rosa H and other relevant cases. This Part highlights the basis for limiting the right to vote in presidential elections to citizens who reside in the fifty states. It argues that the First Circuit was correct in denying this right to the people of Puerto Rico in Igartua de la Rosa H. Part II further asserts that the First Circuit's ruling is a clear signal to the people of Puerto Rico that statehood is necessary to fully legitimize their political status in the United States. Part II then considers whether the people of Puerto Rico are entitled to vote in presidential elections by virtue of their citizenship and discusses whether the Constitution grants any citizens the right to vote. This Part concludes that, at best, the Supreme Court has only recognized a limited right to vote based on the Equal Protection Clause of the Constitution. (13) The argument for statehood is then revisited in light of these voting rights issues.
I. PUERTO RICO'S STATUS IN THE UNITED STATES
A discussion of Puerto Rico's status within the United States is necessary before discussing the constitutional rights of the citizens who live on the island. Specifically, the constitutional distinctions between Puerto Rico and the fifty states must be drawn out. This area of constitutional law has been largely ignored by academics, but fiercely criticized by those affected.
A. The Acquisition of Puerto Rico
Prior to the Spanish American War, Puerto Rico was a province of the Spanish Kingdom, governed under the Spanish Constitution of 1876. (14) As Spanish citizens, Puerto Ricans enjoyed representation in the Spanish Parliament (15) and autonomy on matters of local concern. (16) When the war ended, Puerto Rico was ceded to the United States under the Treaty of Paris of 1898. (17) The U.S. held the island under a military government until 1900. (18) During this period it was generally believed that Puerto Rico had been annexed into the Union and that Puerto Ricans were United States citizens. (19)
Before long, pressure from the domestic beet-sugar and tobacco industries, backed by other imperialist and racist influences, sparked political debate on Puerto Rico's status within the Union. (20) Some advocated the creation of a special status for Puerto Rico that justified governing the island without the usual constitutional restraints. (21) In particular, some lawmakers argued that the Constitution gave Congress plenary power over all newly acquired territory. (22) Despite significant opposition, this framework for unequal treatment became law when Congress passed the Foraker Act (23) and the United States Supreme Court decided the Insular Cases.
B. The Insular Cases
The Foraker Act provided for the establishment of a civil government in Puerto Rico (24) and granted its people "Puerto Rican citizenship." (25) The most controversial feature of the Act was a section that imposed tariffs on goods imported and exported between the mainland and the island. (26) Many disagreed with these provisions (27) and argued that a tariff bill for Puerto Rico violated the Constitution's Uniform Taxation Clause. (28) The Republican majority rejected this argument and contended that a tariff was the only way to raise revenue for Puerto Rico. (29) This contention was also an "open challenge to the U.S. Supreme Court to decide whether the Constitution applied with equal force to" Puerto Rico. (30)
The Insular Cases settled this debate. In De Lima v. Bidwell, (31) the plaintiff sought to recover duties paid on sugar products imported from Puerto Rico. (32) The central issue was whether a territory acquired from a foreign power remains foreign for the purposes of U.S. tariff laws. (33) The Supreme Court held that the tariffs were invalid because Puerto Rico became a domestic territory upon ratification of the Treaty of Paris, "although not an organized territory in the technical sense of the word." (34) The Court noted that the political branches had previously treated ceded territory as domestic, not foreign, in all cases except for the Louisiana Territory: (35)
The theory that a country remains foreign with respect to the tariff laws until Congress has acted by embracing it within the customs union presupposes that a country may be domestic for one purpose and foreign for another ... This theory also presupposes that territory may be held indefinitely by the United States; that it may be treated in every particular, except for tariff purposes, as domestic territory; ... that everything may be done which a government can do within its own boundaries, and yet that the territory may still remain a foreign country. To hold that this can be done as a matter of law we deem to be pure judicial legislation. We find no warrant for it in the Constitution or in the powers conferred upon this court. We are unable to acquiesce in this assumption that a territory may be at the same time both foreign and domestic. (36)
This language has been described as "nothing short of amazing" (37) when compared to the holding in Downes v. Bidwell, one of the later Insular Cases. (38) These words also continue to ring with irony considering that Puerto Rico is a model for how a territory can be held indefinitely by the United States. (39)
The next case before the Court, Goetze v. United States, (40) has little significance beyond its historical context. (41) Here, the Court followed De Lima, and swiftly reversed a lower court's ruling that Puerto Rico was foreign within the meaning of the tariff laws. (42) The Court then decided Dooley v. United States, (43) in which the plaintiff sought to recover duties paid on goods exported from New York to Puerto Rico during the period of U.S. military occupation of the island prior to the ratification of the Treaty of Paris. The Court held that Puerto Rico remained a de jure foreign country during that time and did not belong to the United States until the treaty was ratified. (44) The imposition of the duties was therefore held to be a valid exercise of the war power. (45)
Although its holding is difficult to reconcile with the result in De Lima, Downes v. Bidwell (46) became "the central case on the question of Puerto Rico's status within the Union at that stage in history." (47) In Downes, the plaintiff sought to recover duties paid for goods shipped from Puerto Rico to New York after the passage of the Foraker Act. (48) The Court upheld the constitutionality of the Foraker Act's tariffs on imports and exports. (49) A plurality of the Court advanced varying justifications for this apparent change of position.
Justice Brown's opinion began by noting that nothing in the Constitution's historical development justified a finding that it applied directly to the territories. (50) He argued that the Constitution was limited to "states, their people, and their representatives." (51) Next, Justice Brown analyzed the Court's earlier decisions and found no basis for the notion that the Constitution applies to a territory prior to an act of Congress. (52) He concluded that the Constitution's "Uniform Taxation Clause," (53) which requires uniform taxation "throughout the United States," was not binding on Congress when legislating for the territories. (54)
Justice Brown further noted that there are "no limitations upon the power of Congress" in dealing with the territories because no such limitation is expressed in the "Territory Clause." (55) The Territory Clause provides that "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." (56) Justice Brown's conclusions with regard to congressional power were tempered somewhat by the following passage:
We suggest ... that there may be a distinction between certain natural rights ... and what may be termed artificial or remedial rights which are peculiar to our own system of jurisprudence. [Natural rights might include freedom of religion, speech, and the press; the right to personal liberty, property, due process, equal protection, and free access to courts; immunities from unreasonable searches and seizures, cruel and unusual punishments, and other immunities that are indispensable to a free government. Artificial rights include] the rights of citizenship, to suffrage and to the particular methods of procedure pointed out in the Constitution which are peculiar to Anglo-Saxon jurisprudence, and some of which have already been held by the states to be unnecessary to the proper protection of individuals. Whatever may be finally decided ... as to the status of [Puerto Rico, it does not follow that its] people are in the matter of personal rights unprotected by the provisions of our Constitution. (57)
Justice White's concurrence outlined what would later be recognized as the rule of the Insular Cases. Justice White began by noting that he would extend the applicability of the Constitution to the territories, but might limit the operation of certain provisions in light of "the situation of the territory and its relations to the United States." (58) Justice White then offered a distinction between "incorporated" and "unincorporated" territories. (59) Under this incorporation theory, incorporated territories are destined to become states and form an integral part of the U.S., thus entitling them to equal treatment under the Constitution. (60) In contrast, unincorporated territories are a part of the U.S. in an international sense, but foreign in a domestic sense. (61) Thus, an unincorporated territory is "merely ... a possession" (62) and has no significant legal status under the Constitution. (63)
Justice White argued that Congress is limited only by the provisions of the Constitution protecting the liberty and property of the people when legislating for an unincorporated territory. (64) Thus, only fundamental natural rights (65) apply to such territories. (66) Justice White further argued that Congress had the power to withhold the incorporation of a territory into the Union. (67) He found that Congress had declined to incorporate Puerto Rico into the Union because the Treaty of Paris (68) did not provide for its incorporation. (69) Thus, he concluded that the Uniform Taxation Clause did not apply to Puerto Rico. (70)
The dissenting opinions in Downes greatly criticized the majority. Chief Justice Fuller's dissent argued that the Uniform Taxation Clause required uniformity throughout the geographical United States because the United States is composed of both states and territories. (71) He noted that "the national government is a government of enumerated powers ... [and] ... [t]he powers delegated by the people to their agents are not enlarged by the expansion of the domain within which they are exercised." (72) In addressing Justice White's incorporation theory, the Chief Justice argued that such a theory
assumes that the Constitution created a government empowered to acquire countries throughout the world, to be governed by different rules than those obtaining in the original States and territories, and substitutes for the present system of republican government, a system of domination over distant provinces in the exercise of unrestricted power. (73)
The Chief Justice concluded that the duties imposed by the Foraker Act were...
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