University of Miami Inter-American Law Review
The Flag Can Travel but the Constitution Must Ask Permission: How the First Circuit and the District for Puerto Rico Commit to Equal Protection Without Abandoning the Insular Cases Doctrine
For American citizens, one of the most important safeguards guaranteed by the Constitution of the United States is the equal protection of the law. The United States prides itself on the doctrine and jurisprudence of equal protection because of the social progression achieved since the end of the Civil War. The Reconstruction Amendments to the Constitution eliminated the institution of slavery and were supposed to guarantee equal civil and legal status to all citizens. The Constitution, however, has not been consistently interpreted in this way since the end of the Spanish-American War in 1898. The nation emerged from this conflict with a renewed colonial prerogative and with newly acquired territories overseas: Puerto Rico, Guam, and the Philippines. The acquisition of new territory, populated by peoples of wholly different cultures to those of the Anglo-Saxon, European-American political elites of Washington, D.C., necessitated an approach to government that was politically and legally rejected since the founding of the nation: colonialism. In Puerto Rico and later unincorporated territories—those not intended for eventual statehood—colonial governance meant political and social subjugation. The Supreme Court legitimized the federal government’s colonial plans in a series of decisions beginning in the late 19th century, known as the Insular Cases. These decisions influence the legal status of American citizens residing in the unincorporated territories and allow the federal government to evade the constitutional mandate of equal protection of the law. This Note discusses the racist logic of the Insular Cases and the vestiges of colonial appropriation of the unincorporated territories, reflected in the exclusion of Puerto Ricans from the Supplemental Security Income program. In United States v. Vaello-Madero, the District Court for the District of Puerto Rico and the First Circuit Court of Appeals rejected the federal government’s exclusion of Puerto Ricans from that program, arguing that equal protection of the law, embodied in the Fifth Amendment’s Due Process Clause, does not allow the federal government to abuse its constitutional power under the Territory Clause to regulate the unincorporated territories. This Note concludes, however, that Vaello-Madero is not a vehement rejection of the Insular Cases and their jurisprudential progeny and that it remains unlikely for the Supreme Court to undo its labor from the late 19th and early 20th century, when its opinions treating the subject of the territories were heavily marked by notions of Social Darwinism and racism. Nonetheless, Vaello-Madero is a promising hint that the federal judiciary is sensitive to the inconsistent application of the guarantee of equal protection throughout the U.S. territories overseas and is willing to resist the Insular Cases doctrine.
Alejandro J. Anselmi González,
The Flag Can Travel but the Constitution Must Ask Permission: How the First Circuit and the District for Puerto Rico Commit to Equal Protection Without Abandoning the Insular Cases Doctrine,
53 U. MIA Inter-Am. L. Rev.
Available at: https://repository.law.miami.edu/umialr/vol53/iss1/5