It almost certainly is a long shot, but another way to push for Puerto Rico statehood seemed to emerge as a potentiality in the Supreme Court yesterday. It would require a bit of constitutional wizardry to make that real. (But, isn’t that the way we got a personal right to a gun under the Second Amendment, after 117 years without it?)
First, some background:
Puerto Rico, of course, has been locked in territorial status for about 123 years. It has had self-governing status (although still as a territory) for 69 years, but only by the grace of Congress.
A majority of the people on the island apparently want statehood, according to a referendum last year. Only Congress can create a state, but Republican opposition there has been and remains a formidable barrier.
But what if Congress had to face a choice, say, between statehood or cutting the island free of all ties to the United States?
Actually, that is not an unheard-of idea. The United Nations for years has wanted the United States to face that very choice, and the pressure to do so was repeated just last June. The UN’s Special Committee on Decolonization approved a measure “calling upon the United States to assume its responsibility to promote a process to enable the people of Puerto Rico to fully exercise their right to self-determination and independence.”
Moreover, the United States is required by Article 73 of the UN Charter to promote “the well-being of the inhabitants of [its] territories.” However, the most that this country has done is to file an annual report to the UN General Assembly on conditions in Puerto Rico, with no plan to change its status as a territory.
If a world organization cannot push the Puerto Rico question very far, how about reading the U.S. Constitution to press the issue?
That’s what arose yesterday during a Supreme Court hearing. Hermann Feres, a New York City lawyer representing a Puerto Rican man seeking equal access to federal financial benefits, had a fascinating exchange with Justice Brett M. Kavanaugh about the meaning of the Constitution’s clause (the “Territories Clause”) that assigns to Congress the responsibility to make “all needful rules and regulations” for U.S. territories.
Kavanaugh began by saying he was asking a “bigger-picture question” about “the structure” of the Constitution. That’s a kind of inquiry that seeks to ferret out what the Founders’ design was, without focusing too tightly on the exact language of the document. Obviously with Puerto Rico in mind, the Justice wondered if the Territories Clause “might seem anachronistic to some.”
Ferre answered that the Founders actually expected territorial status to be only “a temporary one,” on the way to becoming an actual state. A territory, he went on, would be organized, and then become a state.
Kavanaugh then asked whether “the purpose of the clause was a time limit of sorts?” Ferre said yes, and then noted that the Territories Clause is in the very same section of the Constitution that gives Congress the power to create new states.
“How,” Kavanaugh asked, “do we then figure out when the time has run? I guess we could say it long since ran in your case.” Ferre used that question, too, to his advantage, noting that a series of Supreme Court rulings in the early 1900s known as the Insular Cases “essentially stopped the clock so that Congress just did not have to consider the path of these unincorporated territories.”
The Insular Cases essentially stand for the perception that, since Puerto Ricans were too primitive to govern themselves, they had no rights under the Constitution. That perception reflected the racism of that period in U.S. history. The infamous history of those decisions hung over the entire hearing yesterday; in fact, at one point, Justice Neil M. Gorsuch wondered why the Court didn’t just overrule those precedents.
It is clear, though, that it may be a leap to go from the Kavanaugh-Ferre exchange to a suggestion that the Court will, in fact, use this case to re-interpret the meaning of the Territories Clause. If it follows its customary practice, it will try to find a non-constitutional way to decide whether Puerto Ricans should be entitled to federal financial benefits, the way other needy people in the United States are.
But, suppose that the Court did read the Clause as having run out of time on Puerto Rico’s situation? That would confront Congress with a constitutional need to think anew about the status of the island. No longer able to continue postponing the statehood question, with the only alternative to let Puerto Rico go, to become truly independent, how would Congress respond?
That is the stuff of constitutional history, when a document first written in the late 18th Century does acquire new meaning, from time to time, because its words, phrases and clauses are not self-defining. Precedents matter, but they don’t always control.
