Why 3.5 Million American Citizens Don't Get to Vote | The Insular Cases

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In episode 60 of Supreme Court Briefs, what's the deal with Puerto Rico? Is it really part of the United States? Are its residents actually U.S. citizens? If they are citizens, do they have the full rights of U.S. citizens? Basically, it's complicated.

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Paris, France
December 10, 1898

The United States and Spain sign the Treaty of Paris (no not that one, not that one, not that one, yes that one) The one that ended the Spanish-American War. You may remember the war as either a passing mention in your history class textbook or heard about future American President Theodore Roosevelt's service during the war with the Rough Riders. But the war is a lot more influential than many people realize. That’s because the Treaty of Paris saw the loser, Spain, hand over its territories of the Philippines, Guam, and Puerto Rico to the victor, the United States. Meanwhile, the United States had also, independently, took over Hawaii, using the war as political cover. However, the United States government had no idea how to figure out the political and legal implications of these people living in these shiny new territories.

While the United States was experienced in dealing with new territory throughout its history of purchase and uh...conquest, controlling the far-away islands of Puerto Rico and the Philippines were going to be a lot harder than deciding the fate of, say, Kansas and Nebraska. For one, Puerto Rico and the Philippines were colonies, not soon-to-be-states. All the United States government really had to go off of was Article 9 of the Treaty of Paris, which said that #1: “The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by Congress.” And #2: the little known part about the Dred Scott decision that said that, besides getting new states, there’s no Constitutionally-given power the U.S. can use to maintain colonies.

But that wasn’t going to stop the William McKinley administration and his buddies in Congress from going about it their way. In 1900, the Foraker Act set up a government in Puerto Rico with specific Puerto Rican citizenship for the island’s inhabitants. Now, this was not to be with, ya know...United States citizenship. Oh, and the law also had numerous caveats relating to matters of tariffs on imported Puerto Rican goods, which would come up again and again in the most famous (or infamous) of the Insular Cases. While historians have labelled at least 16 different cases as part of the “Insular Cases,” to keep it simple, I’m going to talk about the ones that left the biggest impact. Oh, and all of the ones I picked have to deal with Puerto Rico.

While we’ve been talking about Puerto Rico-specific cases, they all represent a larger point of the Insular Cases. Today, most American territories and their citizens remain in this weird limbo where they are fully a part of the United States for some things like taxes and citizenship, but they can’t take advantage of everything that comes with being a part of the Union, like full representation in Congress.