In the face of congressional inaction, it is time for the states to lead on citizen equality and make America a “more perfect union.” One way states can begin doing this is by passing legislation supporting the self-determination of all U.S. territories, and in the case of Puerto Rico — which has repeatedly voted for statehood — to support its admission into the union on equal footing with all other states. Such moral leadership from the states is essential to correcting America’s historic wrongs that have relegated those living in U.S. territories to second-class citizenship.
If the summer of 2020 taught us anything, it is that there must be no tolerance for the unequal treatment of American citizens. As the public grows in awareness of how the harsh legacies of racial inequality and injustice persist, a historic opportunity is now present.
Once buried at the bottom of a stack of national priorities, or worse yet ignored altogether, the need to erase the blight of structural racism in our country is now being embraced. Symbols like Confederate statues built during the Jim Crow era to intimidate Black citizens are finally being removed or moved to museums. However, one issue that still has the force of law in the United States has been left disappointingly unaddressed: the Insular Cases.
In the wake of the Spanish-American War in the late 19th century, the same U.S. Supreme Court that made the shameful “separate but equal” decision in Plessy v. Ferguson was forced to grapple with the relationship the United States would have with its newly acquired territories in the Pacific and Caribbean. What resulted was a series of cases that are known as the “Insular Cases.”
In these cases, unlike in recently admitted territories such as Washington and Idaho, or the mainland territories of Arizona and New Mexico, the Supreme Court decided that territories such as Guam and Puerto Rico were different due to their populations of “alien races” and that, because of these populations, they could not be governed by “Anglo-Saxon principles.” These patently racist views underpinned the intent of the court’s majority to legislate the doctrine of “unincorporated territories” into existence, a judicial invention that effectively allowed the United States to possess modern colonies in perpetuity and deny otherwise inalienable rights to residents living under the U.S. flag.
Today, in the 21st century, many Americans are shocked to learn that the Insular Cases are still in effect, and that they continue denying U.S citizens in the territories both equality and full democracy. A deadly example is the federal government’s disproportionately weaker response to the devastating 2017 hurricanes in Puerto Rico compared to responses in Florida and Texas. Another is the unequal treatment that territory residents face in federal programs like Social Security, nutritional assistance, Medicaid and Medicare.
The lack of democracy that denies Puerto Rico voting representation in the U.S. Congress, even when its residents are subject to federal laws and can be treated unequally under those laws, was made even more insulting with the approval of PROMESA in 2016. While the island’s debt restructuring was necessary, the establishment of an unaccountable financial oversight board for Puerto Rico that has pushed extreme austerity measures — including the cutting of territory-mandated employee benefits such as sick leave, vacation pay, and pensions — over the objections of local elected officials, should shock every American and spur us to collective action.
After all, these are fellow Americans, and their unequal treatment by our federal government is abhorrent. Just as we would never tolerate a return to “separate but equal,” we should not tolerate the second-class treatment of Americans in the territories under a doctrine of “separate and unequal.”
As elected leaders in the state of Pennsylvania and the former territory of Washington state, we call on our fellow state-level leaders to denounce this abhorrent stain on our American union. The Insular Cases, by the plain text of the decisions and the prejudice of the court justices that decided them, are examples of systemic racism in plain sight. They are cancers on America’s founding values and ideals, and they should be aggressively treated as such by leaders at every level of our society.
In recent years, some state legislatures have presented resolutions on these issues. Today, we believe all states that oppose the unjust colonial rule of U.S. territories should immediately introduce and pass legislation to support territorial self-determination, and urge Congress to take action on statehood for Puerto Rico to honor the will of our fellow American citizens there who have already voted to choose full democracy and equality. Until Congress acts, it is the duty of state legislatures to raise awareness about these injustices among our constituents and to demand that federal authorities work to make America a more perfect union.