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Igartua de la Rosa v. United States

Footnotes

1. The Commonwealth argues that stare decisis is not "an inexorable command," particularly in constitutional cases. But Igartua I is based on Supreme Court opinions which that court has not reconsidered and we are not free to do so. And "[e]ven in constitutional cases, stare decisis carries such persuasive force that [even the Supreme Court has] always required a departure from precedent to be supported by some 'special justification.'" Dickerson v. United States, 120 S. Ct. 2326, 2336 (2000).

2. See Treaty of Paris, Dec. 10, 1898, United States-Spain, 30 Stat. 1754. Article IX of the treaty reads: "The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress."

3. For example, on July 28, 1898, three days after the landing of American troops at Guánica, General Nelson A. Miles, who commanded the expeditionary force, proclaimed:

Annual Report of the Major General Commanding the Army, Nelson A. Miles, Nov. 5, 1898, Messages, 1898-1899, at 31-32.

It should be noted that, at the time of General Miles' arrival, and since the enactment of the Spanish Constitution of 1812, Puerto Ricans enjoyed Spanish citizenship and voting representation in the Spanish Parliament, rights which were confirmed in the Constitution of 1876 and in the Autonomic Charter of 1897. See 1 José Trías Monge, Historia Constitucional de Puerto Rico 34-35 (1983).

4. See U.S. Census Bureau, Population Div., PR-99-1 Estimates of the Population of Puerto Rico Municipios, July 1, 1999, (July 21, 2000) <http://www.census.gov/population/www/estimates/puerto-rico.html>. This is a larger population than 26 of the States and more than the combined population of Maine, New Hampshire, and Rhode Island, which together with Massachusetts and Puerto Rico constitute the First Circuit. See U.S. Census Bureau, Population Div., ST-99-3 State Population Estimates: Annual Time Series, (December 29, 1999) <http://www.census.gov/population/estimates/state/st-99-3.txt>.

5. 8 U.S.C. § 1402 (1999) (governing the citizenship of persons born in Puerto Rico on or after April 11, 1899). The residents of Puerto Rico were first granted citizenship in 1917. See Jones Act (Puerto Rico), § 5, ch. 145, 39 Stat. 951 (1917).

6. The residents of Puerto Rico do elect a Resident Commissioner to represent their interests before Congress, but that official's lack of a vote obviously diminishes his ability to effectively represent them.

7. Balzac v. Porto Rico, 258 U.S. 298 (1922); Ocampo v. United States, 234 U.S. 91 (1914); Dorr v. United States, 195 U.S. 138 (1904); Hawaii v. Mankichi, 190 U.S. 197 (1903); Downes v. Bidwell, 182 U.S. 244 (1901); Dooley v. United States, 182 U.S. 222 (1901); DeLima v. Bidwell, 182 U.S. 1 (1901).

8. Article 4, section 3, clause 2, of the Constitution states: "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 . . . ."

9. See, e.g., De Lima, 182 U.S. 1, 200 (1901) (Puerto Rico part of the United States for customs purposes).

10. See, e.g., Downes, 182 U.S. 244, 287 (1901) ("[T]he Island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States" for revenue purposes).

11. See Foraker Act, § 7, 31 Stat. 77 (1900) (codified as amended at 48 U.S.C. § 733 (1987)).

12. The term "national of the United States" is defined at 8 U.S.C. § 1101(a)(22) to mean "(A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States." The only persons currently holding such status are residents of American Samoa and Swains Island.

13. See Jones Act (Puerto Rico), § 5, ch. 145, 39 Stat. 951 (1917). This status was reiterated in the Nationality Act of 1940, § 202, ch. 876, 54 Stat. 1139 (1940), in which Congress explicitly stated that all persons born in Puerto Rico automatically became citizens of the United States, a situation analogous to that existing within the then contiguous States under the Fourteenth Amendment. That provision was repealed by the Immigration and Nationality Act of June 27, 1952, §403, ch. 477, 66 Stat. 280, and replaced by the provision now codified at 8 U.S.C. § 1402 (1999) (governing the citizenship of all persons born in Puerto Rico on or after April 11, 1899).

14. Balzac involved a claim to trial by jury in a criminal prosecution, which the Court concluded was unavailable in Puerto Rico because trial by jury was not a "fundamental" right. Balzac, 258 U.S. at 312-13; cf. Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (holding that "trial by jury in criminal cases is fundamental to the American scheme of justice"). Balzac has never been reversed and has been cited approvingly by the Court as recently as 1990. See United States v. Verdugo-Urquídez, 494 U.S. 259, 268 (1990). In comparison, in Reid v. Covert, 354 U.S. 1 (1957), the Court refused to extend the reasoning of the Insular Cases to American civilians abroad who had been convicted by a court martial for a felony offense without being afforded the right to a jury trial. Justice Black, writing for a four-Justice plurality (no opinion of any Justices garnered a majority, and only eight Justices participated in the case), stated: "[I]n view of our heritage and the history of the adoption of the Constitution and the Bill of Rights, it seems peculiarly anomalous to say that trial before a civilian judge and by an independent jury picked from the common citizenry is not a fundamental right." Justice Black went further, rejecting Balzac and the other Insular Cases as outdated, see id. at 14, but concurring Justices Frankfurter and Harlan refused to go so far, see id. at 54, 66. Ironically, because the holding of the Court extends the protection of United States citizenship to a proceeding that took place in England qua the condition of United States citizenship, this case seems to stand for the proposition that certain constitutional rights are inherent in United States citizenship.

15. See Public Law 600, ch. 446, 64 Stat. 319 (1950) (codified at 48 U.S.C. § 731(b) (1994)).

16. Even the term "Commonwealth," as applied to Puerto Rico, is meaningless. Massachusetts, Pennsylvania, and Virginia are all entitled "commonwealths," yet Puerto Rico is certainly not equivalent to them as a political entity. Puerto Rico and the United States certainly do not form a "Commonwealth of Nations" nor is their relationship in anyway similar to that of the nations forming the "British Commonwealth." In fact, the official title of "Commonwealth of Puerto Rico" is also officially in Spanish "Estado Libre Asociado," which literally translated means "Free Associated State." Puerto Rico is neither free nor a state, and as to being "associated" with the United States, the Supreme Court ruled long ago that "the Island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States" for some purposes. Downes, 182 U.S. at 287 (Puerto Rico not part of the U.S. for revenue purposes). But see De Lima, 182 U.S. at 199-200 (Puerto Rico part of the U.S. for tariff purposes) (stating, ironically, "We are unable to acquiesce in this assumption that a territory may be at the same time both foreign and domestic"). The confusion does not end with the name, as the various courts, including of course the Supreme Court and our own, have contributed much to this condition. See Rodríguez v. Popular Democratic Party, 457 U.S. 1 (1982); Harris v. Rosario, 446 U.S. 651 (1980); Califano v. Torres, 435 U.S. 1 (1978); Examining Bd. of Eng'rs v. Flores, 426 U.S. 572 (1976); Calero Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974); Mercado v. Puerto Rico, 214 F.3d 34, 40, 44 (1st Cir. 2000); Dávila-Pérez v. Lockheed Martin Corp., 202 F.3d 464 (1st Cir. 2000); Moreno v. United States, 38 F.3d 1204 (Fed. Cir. 1994); United States v. Sánchez, 992 F.2d 1143 (11th Cir. 1993); Trailer Marine Trans. Corp. v. Rivera-Vázquez, 977 F.2d 1, 7 (1st Cir. 1992); United States v. López-Andino, 831 F.2d 1164 (1st Cir. 1987); Córdova v. Simonpietri Ins. Agency v. Chase Manhattan Bank, 649 F.2d 36 (1st Cir. 1981).

17. See Hearings Before the House Comm. on Resources on H.R. 4751, 106th Cong., (Oct. 4, 2000); Young Bill, H.R. 856, 105th Cong. (1997); Fernós-Murray Bill, H.R. 5926, 86th Cong. (1959); Aspinall Bill, H.R. 5945, 88th Cong. (1963); Hearings Before House Subcomm. on Territorial Affairs on H.R. 5945, 88th Cong. (1963).

18. See Plessy v. Ferguson, 163 U.S. 537 (1896).

19. For example, more than 62,000 Puerto Ricans served in World War II. In Korea, over 43,000 Puerto Ricans served, including almost 40,000 volunteers, and approximately 3,540 of them lost their lives in defense of the United States, the second highest rate per capita of any jurisdiction in the Nation. Some 48,000 Puerto Ricans served in Vietnam; approximately 270 were killed and more than 3,000 wounded. Puerto Ricans also served in World War I and in every significant United States conflict since Vietnam, including the Persian Gulf War. See Lance Oliver, Puerto Rico's Overlooked Veterans, Puerto Rico Herald (Nov. 11, 1999).

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