New York – The Right to Democracy organization and other academics insisted on the need to repeal the doctrine of the Insular Cases of the United States Supreme Court, since it justifies the undemocratic colonial regime that affects unincorporated territories such as Puerto Rico.
According to Adi Martínez Román, co-founder of the organization created last year to address the problem of colonialism in the five US territories, revoking the Island Cases is the first step of recognition by the US judiciary. . that it has had colonies for 125 years.
The activist anticipated that a possible outcome of a decision of this type by the highest forum would be the beginning of a self-determination process to resolve the status of PR.
“What the revocation of the Insular Cases would entail is that the court would have to say, ‘this doctrine that we created 125 years ago is unconstitutional,’ and there has to be a political process of self-determination that Congress will have to carry out. of the US, because it is a political issue. This is, obviously, if the courts favor our argument that the cases be revoked, because the court could say, ‘we are not going to revoke,'” Martínez Román argued to El Diario.
This self-determination process, according to the Law professor at the University of Puerto Rico (UPR), should not be inclined towards any status option.
“I shouldn’t be. The US Congress has plenary powers over the territories. That would not change with the revocation of the Insular Cases…What would change would be the legitimation, authorization or seal of approval, the court’s approval for them to keep us like this. What comes next, be it statehood, independence or free association or some negotiated status, has to be a process of self-determination with the territories. We do not see at this time of our existence that Congress will decide to give us Puerto Rico status overnight, to incorporate us; “That requires a political process that we do not see as favorable,” he insisted.
For his part, Neil Weare, also co-director of Right to Democracy, agreed with Martínez Román that the repeal of the jurisprudence will not automatically lead to a change of status on the island, but it will promote debate.
“Repealing THE doctrine of Insular Cases would imply returning to the understanding that existed before 1898 that the Constitution does not allow the United States to acquire overseas territories and govern them as colonies. Whether that eventually results in statehood, independence, or some other status is another matter that will be resolved in the political sphere through a process of self-determination. Nothing would happen automatically, but it would create pressure on the political branches to resolve the undemocratic and colonial relationship. Like overturning Plessy v. Ferguson helped create new political space for the civil rights movements of African-Americans and other minorities in the US, overturning the Island Cases would create new political spaces for movements seeking democracy, equity and self-determination,” Weare added.
The doctrine of the Insular Cases, a series of cases decided by the Supreme Court during the last century, established a legal framework that legitimizes the colonial governance of the insular territories acquired by the United States after 1898 (Puerto Rico, Guam, Philippines, Samoa American and Hawaii). The Insular Cases defined and differentiated between “incorporated territory” and “unincorporated territory.” The idea was that these demarcations would not become states.
In the case of unincorporated territories such as Puerto Rico, the residents of these jurisdictions were located as “savages” and “uncivilized” under a concept of race in which they are considered “foreigners.” Under the same doctrine, the inhabitants of said territories are not guaranteed the same constitutional rights as those of those incorporated.
Rafael Cox Alomar, a law professor at the University of the District of Columbia Law School in Washington, D.C., stressed that this particular dichotomy would be nullified if the cases are overturned.
“Prior to 1901, there was no distinction between incorporated and unincorporated territories. Therefore, revoking the cases would not make us ‘incorporated’, since this category was created by the same cases that would be revoked. The category itself is a fiction,” Cox Alomar said in a statement.
She is also a law professor, but at Columbia University in New York City. Christina Ponsa Kraus agreed with the previous position.
“What the doctrine of the Insular Cases maintains is a legal fiction that relegates us to the status quo of colonialism and that we all want to overcome. Eliminating such doctrine would result in the elimination of the categories of incorporated and unincorporated territory. It would not have the effect of incorporating us into the political body of the United States,” Ponsa Kraus also supported through an explicit statement.
El Diario has been addressing the issue of the Island Cases in depth since the beginning of the year with analysis and positions from different sources linked to the discussion inside and outside of Puerto Rico. Last February, the United States Commission on Civil Rights (USCCR) released a preliminary memorandum in which it sets out the impact of the jurisprudence on the civil rights of Puerto Ricans on the island.
The document is a follow-up to the public hearing that was held in San Juan, the island’s capital, on May 10, 2023, to delve into the topic.
Right to Democracy was one of the panelists at that meeting.
The organization also led efforts to have 43 members of Congress send a letter last week to Justice Department Secretary Merrick Garland asking him to condemn the racist language of the Supreme Court’s Insular Cases and its impact on territories like Puerto Rico.
“We think they have an opportunity to do so (condemn the Island Cases) at this time,” Martínez Román considered when asked by El Diario.
“The Department of Justice said there are disgusting aspects of the cases. But, then, which aspects are good?…We are waiting for the Department of Justice to respond to this, because this is a political, pressure job, and for them to realize that this is an opportunity to fix a historical error,” he added. the lawyer about the procedure.
Regarding the effect that the secretary reproaching the doctrine could have, the interviewee indicated: “It is part of that recognition that is needed in the United States to move political pressure towards self-determination, equity and democracy of the territories. It is recognizing that this population has been violated for 125 years.”
Lawsuit on the way for the Supreme Court to revoke the Island Cases
Right to Democracy is also finalizing the details of a lawsuit they will file in the federal courts of Puerto Rico, Guam and the Virgin Islands, respectively, to overturn the Island Cases.
The appeal, which would be presented this summer, requests a ruling declaring that the Island Cases are unconstitutional and that they have caused dignitary damage to the residents of these territories. “A recognition of the damage is a way to repair, the lawyer explained.
However, Martínez Román anticipated that it takes time for a case of this type to reach the highest forum.
“Any case that is brought before the Supreme Court takes time. This is an attempt, a strategy to unlock the status quo as it is now. Right now, there is a process in Congress called “Puerto Rico Status Act”, and that, from what we see, has no real chance of being approved…Our attempt is to unblock this through legal means, which does take time. …”, he explained.
Additionally, the entity is taking steps to meet with White House staff to discuss the issue, and carry out educational activities in both the House and the Federal Senate.
Keep reading:
43 congressmen ask the Department of Justice to condemn Supreme Court Island Cases that discriminate against territories like Puerto Rico
Right to Democracy works on legal appeal to try to revoke Island Cases that discriminate against territories like Puerto Rico
Puerto Rico: They seek to promote a movement to overturn Insular Cases from the US Supreme Court.