[*] Associate Professor of Law, St. Thomas University. B.A., Lehman College, 1985; J.D., University of Wisconsin, 1988. This work is dedicated in loving memory to Carmen Hernandez. Thanks to Professors Kevin Johnson, Michael Olivas, Robert Westley, and Adeno Addis for their assistance and encouragement with this project and to Jodie Siegal, Eric Nelson, and Nicole Hessen for their invaluable research assistance. A very special thanks to Katerina Estrella Román for her inspiration, enthusiasm, and love. Return to text.

[1] EMMA LAZARUS, The New Colossus, reprinted in EMMA LAZARUS: SELECTIONS FROM HER POETRY AND PROSE 48 (Morris U. Schappes ed., 3d. ed. 1967) (1883) (inscribed on the Statue of Liberty). Return to text.

[2] JAMES MORTON SMITH, FREEDOM'S FETTERS: THE ALIEN AND SEDITION LAWS AND AMERICAN CIVIL LIBERTIES 24 (amended ed. 2d prtg. 1967) (quoting letter from William Smith Shaw to Abigail Adams, in Adams Papers VIII, at 48 (May 20, 1798) (on file with the Massachusetts Historical Society)). Return to text.

[3] A paradox is a statement or sentiment that is seemingly contradictory or opposed to common sense and, yet, perhaps true in fact. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1636 (1993). Return to text.

[4] See generally Kevin R. Johnson, The Antiterrorism Act, the Immigration Reform Act, and Ideological Regulation in the Immigration Laws: Important Lessons for Citizens and Noncitizens, 28 ST. MARY'S L.J. 833 (1997) (tracing the history of political discrimination against immigrants from the early alien and sedition laws to contemporary immigration reform efforts); Kevin R. Johnson, Fear of an "Alien Nation": Race, Immigration, and Immigrants, 7 STAN. L. & POL'Y REV 111 (1996) (noting that the immigration reform debate is as much about race relations as it is about immigration); Paul Meehan, Combatting Restrictions on Immigrant Access to Public Benefits: A Human Rights Perspective, 11 GEO. IMMIGR. L.J. 389 (1997) (arguing that international human rights principles should become part of immigration reform debates). But see Rep. Lamar Smith & Edward R. Grant, Immigration Reform: Seeking the Right Reasons, 28 ST. MARY'S L.J. 883 (1997) (arguing that the Illegal Immigration Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009, inspires confidence that future reform efforts will be guided by sound policy). Return to text.

[5] See Robert A. Katz, The Jurisprudence of Legitimacy: Applying the Constitution to U.S. Territories, 59 U. CHI. L. REV. 779, 779 n.1 (1992).

The United States' territorial system consists of five island groups that fly the American flag but which are not states—Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa. The United States also has special responsibilities for the Federated States of Micronesia, the Marshall Islands, and Palau.
Id. Return to text.

[6] See id. at 779-80. Return to text.

[7] Id. Return to text.

[8] Deborah D. Herrera, Unincorporated and Exploited: Differential Treatment for Trust Territory Claimants—Why Doesn't the Constitution Follow the Flag?, 2 SETON HALL CONST. L.J. 593, 593 (1992); accord Katz, supra note 5, at 780. Return to text.

[9] See generally Downes v. Bidwell, 182 U.S. 244 (1901) (holding that Congress is not required to treat Puerto Rico uniformly for the purpose of duties, imposts, and excises, as it would the states); De Lima v. Bidwell, 182 U.S. 1, 200 (1901) (holding that Puerto Rico is a U.S. territory and not a foreign country). Return to text.

[10] See infra Part III.A. Return to text.

[11] See U.S. CONST. amend XIV, § 1.

[12] Ch. 145, 39 Stat. 951, 953 (1917) (codified as amended in scattered sections of 48 U.S.C.). Statutory citizenship continues under 8 U.S.C. § 1402 (1994). Return to text.

[13] See H.R. REP. NO. 105-131, pt. 1, at 33-34 (1997). For the purpose of this Article, the phrases "Puerto Rican people" and "people of Puerto Rico" refer to the native residents of Puerto Rico. Puerto Rico is a territory in the Caribbean Sea and is comprised of several islands. The territory has a population of 3.7 million. See Puerto Rico Status Plebiscite, Joint Hearing Before the Subcomm. on Native Am. Insular Affairs of the Comm. on Resources, and the Subcomm. on the W. Hemisphere of the Comm. on Int'l Relations, 104th Cong. 141 (1995) [hereinafter Puerto Rico Status Plebiscite] (statement of Jeffrey L. Farrow, Co-Chair of U.S. Interagency Working Group on Puerto Rico).

14 H.R. 856, 105th Cong. (1998).

15 H.R. REP. NO. 105-131, pt. 1, at 19 (1997) (statement of Rep. Young).

16 See, e.g., Harris v. Rosario, 446 U.S. 651, 651 (1980) (holding constitutional the fact that recipients of Aid to Families with Dependent Children residing in Puerto Rico receive less assistance than do residents of the states based on an interpretation of the Territorial Clause of the U.S. Constitution).

17 See Gina Lubrano, Opinion, Don't Know Much About Geography, SAN DIEGO UNION- TRIB., May 27, 1996, at B7 (responding to a previous article that "referred to Puerto Rico as being among those 'other nations'").

Baseball, that great American pastime, is becoming an international game, according to a Sports section headline last Monday. A story pointed out that about 120 major league players developed their playing skills "in other nations." It was an interesting premise, but a seriously flawed one. The story referred to Puerto Rico as being among those "other nations." Id.

18 See David Jackson & Paul de la Garza, Rep. Gutierrez Uncommon Target of a Too Common Slur, CHI. TRIB., April 18, 1996, § 1, at 1; see also Alex Garcia, One Day at the Capitol, HISPANIC BUS., June 1996, at 112.

19 Garcia, supra note 18, at 112.

20 Jackson & de la Garza, supra note 18, at 1.

21 Puerto Rico Status Plebiscite, supra note 13, at 10-11 (statement of Rep. Serrano).

22 Id. at 10 (statement of Rep. Serrano). Despite the anomalous status that Representatives Gutierrez and Serrano address, few Hispanics who were questioned about the incidents would be surprised "given the state of race relations and the anti-immigrant mood against Hispanics [in the United States]." Jackson & de la Garza, supra note 18, at 28. Unfortunately, the hurtful, humiliating, and belittling treatment of the alien-citizen occurs everyday to many less prominent Puerto Ricans and goes unnoticed. See id.

23 See generally Kenneth L. Karst, Why Equality Matters, 17 GA. L. REV. 245 (1983) (arguing that America's moral ideal of equality has not always been apparent in practice but remains, nonetheless, essential to American rhetoric).

24 See Kenneth L. Karst, Citizenship, Race, and Marginality, 30 WM. & MARY L. REV. 1, 1 (1988) (noting that the principle was most evident after the Civil War when the abolition of slavery was at the forefront of American politics).

25 Id. (evaluating the plight of the poor in America and their relationship to the constitutional ideal of equality).

26 Id.

27 See generally id. at 8-18 (discussing recent examples of economic and social subordination of African Americans, children, women, and the poor).

28 See Eric Foner, Bondage, Freedom & the Constitution, 17 CARDOZO L. REV. 2113, 2113 (1996) (noting that the American conception of "freedom" is based, in part, on the institution of slavery).

29 See Karst, supra note 24, at 2.

30 H.R. 856, 105th Cong. (1997) (including procedures for a referendum and congressional action to decide whether Puerto Rico should become a new U.S. state).

31 See H.R. REP. NO. 105-131, pt. 1, at 12-14 (1997).

32 DOCUMENTS ON THE CONSTITUTIONAL HISTORY OF PUERTO RICO 55 (Office of the Commonwealth of Puerto Rico ed., 2d ed. 1964) [hereinafter DOCUMENTS].

33 H.R. REP. NO. 105-131, pt. 1, at 12 (1997).

34 The people of Puerto Rico consist of the descendants of native Arawak and Taino tribes who migrated from the South American Antilles and settled the island over several centuries. See generally Francisco Moscoso, Chiefdom and Encomienda in Puerto Rico: The Development of Tribal Society and the Spanish Colonization to 1530, in THE PUERTO RICANS: THEIR HISTORY, CULTURE, AND SOCIETY 3-24 (Adalberto L"pez ed., 1980) (tracing the earliest evidence of tribes migrating from Venezuela to the Antilles as early as 15,000 B.C.E., as well as the eventual migration of the Arawak to the Antilles and their integration with Taino settlers who came by canoe to the island). The Spanish imperialists began colonizing in the early 16th century and eventually introduced African slaves to Puerto Rico. See Adalberto L"pez, The Evolution of a Colony: Puerto Rico in the 16th, 17th and 18th Centuries, in THE PUERTO RICANS: THEIR HISTORY, CULTURE, AND SOCIETY 26 (Adalberto L"pez ed., 1980). Thus, today the Puerto Rican people are an amalgam of native Arawak and Taino, Africans, and Spanish imperialists.

35 See, e.g., United States v. Wong Kim Ark, 169 U.S. 649, 664 (1898) (holding that a child born in the United States to non-citizens was a U.S. citizen). See also PETER H. SCHUCK & ROGERS M. SMITH, CITIZENSHIP WITHOUT CONSENT 9 (1985); JOHN S. WISE, A TREATISE ON AMERICAN CITIZENSHIP 51-66 (Fred B. Rothman & Co. 1980) (1906); Robert J. Shulman, Comment, Children of a Lesser God: Should the Fourteenth Amendment Be Altered or Repealed to Deny Automatic Citizenship Rights and Privileges to American Born Children of Illegal Aliens?, 22 PEPP. L. REV. 669, 691 (1995).

36 See U.S. CONST. amend. XIV, § 1. While citizenship by birthright is a long-standing means of acquiring citizenship status, seekers of immigration restrictions have proposed that children born to illegal aliens should be denied U.S. citizenship. See Kevin R. Johnson, Racial Hierarchy, Asian American and Latinos as "Foreigner," and Social Change: Is Law the Way to Go?, 76 OR. L. REV. 347, 348 (1997) (referring to the proposal of Peter Schuck and Robert Smith in their book Citizenship Without Consent).

37 See U.S. CONST. art. I, § 2, cl. 2 (stating that a member of the House of Representatives must have been "a Citizen of the United States" for seven years); U.S. CONST. art. I, § 3, cl. 3 (stating that a Senator must have been "a Citizen of the United States" for nine years).

38 U.S. CONST. art. I, § 8, cl. 4.

39 Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103, 103-04 (repealed 1795) (providing that a "free white person" could apply for citizenship after two years of residency in the United States).

40 60 U.S. (19 How.) 393 (1857) (Dred Scott).

41 See id. at 404.

42 See id. at 411. The Dred Scott Court reasoned that African Americans had not been granted citizenship by the Constitution at the time of its framing because they were regarded as "beings of an inferior order" and thus not part of "the people" as defined in the Constitution. Id. at 407-08. In a purported effort to rectify the wrong created by Dred Scott, the Fourteenth Amendment was enacted in 1868. The Fourteenth Amendment was intended to "protect people of all races against unfortunate actions." Shulman, supra note 35, at 694. The Civil Rights Act of 1866 also effectively overruled the Dred Scott decision by declaring: "[A]ll persons born in the United States . . . are hereby declared to be citizens of the United States . . . ." Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 (1866) (codified as amended at 42 U.S.C. §§ 1981-1982 (1994)). The statute, however, contains a xenophobic reference to Native Americans: "[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." Id.

It is ironic that the Fourteenth Amendment was enacted to end racism specifically against African Americans, but is currently being used by the proponents of the "color-blind society" to eradicate remedial programs such as affirmative-action. See, e.g., Pete Wilson, Commentary, California Fair Play, WASH. TIMES, Mar. 19, 1998, at A19 (arguing that race-based and gender-based preferences in awarding government contracts violate the Fourteenth Amendment).

43 See infra Part III.A.; see also Jonathon C. Drimmer, The Nephews of Uncle Sam: The History, Evolution, and the Application of Birthright Citizenship in the United States, 9 GEO. IMMIGR. L.J., 667, 700 (observing that the same arguments employed in Dred Scott were used in the Insular Cases in order to deny birthright to territorial residents); Gerald L. Neuman, Whose Constitution?, 100 YALE L.J. 909, 958 n.288 (1991) (noting that the Insular Cases established a "framework of second-class status for overseas territories").

44 See Sugarman v. Dougall, 413 U.S. 634, 652 (1973) (Rehnquist, J., dissenting) (stating that the primary reason to amend the Constitution was to overrule Dred Scott).

45 U.S. CONST. amend. XIV, § 1.

46 See Drimmer, supra note 43, at 667-68.

47 See, e.g., Kiyoko Kamio Knapp, The Rhetoric of Exclusion: The Art of Drawing a Line Between Aliens and Citizens, 10 GEO. IMMIGR. L.J. 401, 412 (1996) ("Historically, the privilege of participating in the democratic decision-making process has constituted the essence of citizenship.").

48 Perez v. Brownell, 356 U.S. 44, 78 (1958) (Warren, C.J., dissenting) (stating that voting in a foreign election does not constitute a "voluntary abandonment of citizenship").

49 Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).

50 Sugarman v. Dougall, 413 U.S. 634, 652 (1973) (Rehnquist, J., dissenting).

51 JOSé A. CABRANES, CITIZENSHIP AND THE AMERICAN EMPIRE 5 n.12 (1979) (emphasis added); accord Siegfried Wiessner, Blessed Be the Ties That Bind: The Nexus Between Nationality and Territory, 56 MISS. L.J. 447, 448-49 (1986) ("The relationship theory [of citizenship] views nationality as a legal bond between an individual and his home state that encompasses, by necessity, specific rights and duties.").


53 But see supra note 42.

54 See Karst, supra note 24, at 3. Unlike citizens with formal recognition of membership in the political community, aliens are outsiders to the national community. For immigration purposes, the term "alien" refers to "any person not a citizen or national of the United States." 8 U.S.C. § 1101(a)(3) (1994). Though aliens may live in this country for many years and "have deep community ties in the United States, noncitizens remain aliens, an institutionalized 'other,' different and apart from 'us.'" Kevin R. Johnson, "Aliens" and the U.S. Immigration Laws: The Social and Legal Construction of Nonpersons, 28 U. MIAMI INTER- AM. L. REV. 263, 264 (1997). Accordingly, the label "alien" calls attention to one's "otherness." See Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV. 1425, 1428 (1995).

55 Karst, supra note 24, at 3.

56 See Drimmer, supra note 43, at 667.

57 See id.

58 See Cabell v. Chavez-Salido, 454 U.S. 432, 438 (1982) (holding that "citizenship is . . . a relevant ground for determining membership in the political community"); Drimmer, supra note 43, at 667 (asserting that citizenship signifies membership in a political community and binds both citizens and state).

59 Neil Gotanda, Race, Citizenship, and the Search for Political Community Among "We the People": A Review Essay on Citizenship Without Consent, 76 OR. L. REV. 233, 236 (1997).

60 Spain formally ceded Puerto Rico, Cuba, and the Philippines to the U.S. in December 1898. See Treaty of Paris, Dec. 10, 1898, U.S.-Spain, 30 Stat. 1754.

61 See Jones Act of 1917, ch. 145, 39 Stat. 951 (1917) (codified as amended in scattered sections of 48 U.S.C.).

62 See Ediberto Román, Empire Forgotten: The United States' Colonization of Puerto Rico, 42 VILL. L. REV. 1119, 1119 (1997) (arguing that the United States has refused to acknowledge its imperialist role while treating Puerto Rico as a colony).

63 See H.R. REP. NO. 105-131, pt. 1, at 49 (1997) (statement of Rep. Gutierrez).

64 See General Accounting Office, U.S. Insular Areas: Applicability of Relevant Provisions of the U.S. Constitution, GAO/HRD-91-18 (June 20, 1991), in 3 PUERTO RICO: POLITICAL STATUS REFERENDUM 1989-1991, at 471 (P.R. Fed. Affairs Admin. ed., 1992).

65 See Harris v. Rosario, 446 U.S. 651 (1980) (holding that the lower level of Aid to Families with Dependent Children reimbursement provided to Puerto Rico did not violate the Fifth Amendment's equal protection guarantee).

66 See U.S. CONST. art. IV, § 3, cl. 2. Congress has the "[p]ower to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Id.

67 See Treaty of Paris, Dec. 10, 1898, U.S.-Spain, 30 Stat. 1754.

68 See id. at art. IX, 30 Stat. at 1759.

69 See José Julián Alvarez González, The Empire Strikes Out: Congressional Ruminations on the Citizenship Status of Puerto Ricans, 27 HARV. J. ON LEGIS. 309, 318-30 (1990).

70 See Afroyim v. Rusk, 387 U.S. 253, 262-68 (1967) (holding that Fourteenth Amendment citizenship may not be altered by the federal government, the states, or any other governmental body).

71 See Jones Act of 1917, ch. 145, 39 Stat. 951, 953 (1917) (codified as amended in scattered sections of 48 U.S.C.).

72 Johnson, supra note 54, at 271.

73 See generally De Lima v. Bidwell, 182 U.S. 1, 197 (1901) (stating that a territory acquired by the United States belongs to the United States and is subject to disposition by Congress); Murphy v. Ramsey, 114 U.S. 15, 44 (1885) (stating that Congress could nullify the Utah Territory's polygamist law); National Bank v. County of Yankton, 101 U.S. 129, 132-33 (1879) (stating that Congress could nullify the law of the Territory of Dakota).

74 See De Lima, 182 U.S. at 197; Goetze v. United States, 182 U.S. 221, 221 (1901); Crossman v. United States, 182 U.S. 221, 221 (1901) (stating in both Goetze and Crossman that a board of tariff appraisers had no jurisdiction over goods imported from Puerto Rico or the Hawaiian Islands due to the fact that these were not foreign countries); Dooley v. United States, 182 U.S. 222, 235-36 (1901) (holding that Puerto Rico became part of the United States upon cession by treaty for purposes of tariffs); Armstrong v. United States, 182 U.S. 243, 243 (1901) (holding that tariff duties on goods imported from Puerto Rico were proper prior to cession by treaty); Downes v. Bidwell, 182 U.S. 244, 278-79 (1901) (concluding that because territories are not constitutional equivalents to states, they are subject to greater congressional control); Huus v. New York & Porto [sic] Rico S.S. Co., 182 U.S. 392, 397 (1901) (holding that steamship trade between New York and Puerto Rico came under U.S. trade laws); The Diamond Rings v. United States, 183 U.S. 176, 181-82 (1901) (construing broadly the Territorial Clause of the Constitution and refusing to limit Congress's legislative power over the American territories); Dorr v. United States, 195 U.S. 138, 148 (1904) (holding that residents of unincorporated territories are guaranteed only rights that are fundamental); see also RAYMOND CARR, PUERTO RICO: A COLONIAL EXPERIMENT 53 (1984); González, supra note 69, at 318-30; Marybeth Herald, Does the Constitution Follow the Flag into United States Territories or Can It Be Separately Purchased and Sold?, 22 HASTINGS CONST. L.Q. 707, 714 (1995) (stating that the Supreme Court decided in the Insular Cases that not all constitutional provisions need apply to unincorporated territories); Robert A. Katz, The Jurisprudence of Legitimacy: Applying the Constitution to U.S. Territories, 59 U. CHI. L. REV. 779, 795 (1992); Rafael Perez-Bachs, Applicability of the United States Constitution and Federal Laws to the Commonwealth of Puerto Rico, 110 F.R.D. 485, 485-86 (1986) (stating that the influence of the Insular Cases on Territorial Clause jurisprudence did not end at the turn of the century).

75 See Dorr, 195 U.S. at 146; Downes, 182 U.S. at 289 (White, J., concurring); see also Balzac v. Porto [sic] Rico, 258 U.S. 298, 312-13 (1922).

76 These are territories for which Congress manifested no intent to grant statehood status. See Herald, supra note 74, at 714.

77 In Downes, the Court noted, "We suggest, without intending to decide, that there may be a distinction between certain natural rights, enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights, which are peculiar to our own system of jurisprudence." Downes, 182 U.S. at 282.

78 195 U.S. 138 (1904).

79 Id. at 144 (quoting Hawaii v. Mankichi, 190 U.S. 197, 217-18 (1903)).

80 See Torres v. Puerto Rico, 442 U.S. 465, 474 (1979) (holding that the Fourth Amendment applies to Puerto Rico and that a Puerto Rico statute authorizing the police to search the luggage of a person arriving in Puerto Rico from the United States was unconstitutional).

81 See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 668 n.5 (1974) (stating that constitutional due process applies to Puerto Rico); Examining Bd. of Eng'rs, Architects, and Surveyors v. Flores de Otero, 426 U.S. 572, 601 (1976) (stating that equal protection applies to Puerto Rico).

82 See Balzac v. Porto [sic] Rico, 258 U.S. 298, 314 (1922) (holding that a prosecution for libel was not a violation of the First Amendment and that a right to a jury trial is not a fundamental right as applied to unincorporated territories).

83 See Califano v. Torres, 435 U.S. 1, 4 n.6 (1978) (stating that there is a virtually unqualified constitutional right to travel between Puerto Rico and the 50 states of the Union).

84 258 U.S. 298 (1922).

85 See id. at 304.

86 234 U.S. 91 (1914).

87 See id. at 98; see also Porto [sic] Rico v. Muratti, 245 U.S. 639, 639 (1918) (holding that the right to a grand jury indictment is inapplicable to the residents of Puerto Rico).

88 221 U.S. 325 (1911).

89 See id. at 331-32 (Philippine Islands).

90 See Dorr v. United States, 195 U.S. 138, 144-46 (1904). Not all of the Justices during this period endorsed the Court's legal fiction of fundamental rights. In Dorr, Justice Harlan courageously criticized the majority's holding that the right to trial by jury was not fundamental. He wrote:

[G]uaranties for the protection of life, liberty, and property, as embodied in the Constitution, are for the benefit of all, of whatever race or nativity, in the States composing the Union, or in any territory, however acquired, over the inhabitants of which the Government of the United States may exercise the powers conferred upon it by the Constitution.

Id. at 154 (Harlan, J., dissenting).

91 See Balzac v. Porto [sic] Rico, 258 U.S. 298, 310 (1922) ("In common-law countries centuries of tradition have prepared a conception of the imperial attitude jurors must assume.").

92 See, e.g., United States v. Verdugo-Urguidez, 494 U.S. 259, 267-68 (1990); Harris v. Rosario, 446 U.S. 651, 653-54 (1980); Reid v. Covert, 354 U.S. 1, 13 (1957).

93 354 U.S. 1 (1957).

94 See id. at 13 (stating that the Supreme Court had previously refused to apply certain constitutional safeguards to the territories).

95 Id.

96 401 U.S. 815 (1971).

97 See id. at 836 (holding valid a federal statute that removes citizenship upon failure to comply with a residential requirement).

98 See id. at 831.

99 446 U.S. 651 (1980).

100 See id. at 651-52.

101 See id.

102 494 U.S. 259 (1990).

103 See id. at 268-69.

104 See Congressional Research Service Memorandum: Discretion of Congress Respecting Citizenship Status of Puerto Rico (Mar. 9, 1989), in 2 PUERTO RICO: POLITICAL STATUS REFERENDUM, 1989-1991, at 81-85 (Puerto Rico Fed. Affairs Admin. ed., 1992).

105 Puerto Rican citizens, with the exception of federal employees, are exempt from federal income taxes on income earned in Puerto Rico. See 26 U.S.C. § 933 (1994).

106 See S. REP. NO. 101-481, at 10-11 (1990) ("Under present law, federal social welfare programs under the Social Security Act such as AFDC, Medicaid, Aid to the Aged, Blind and Disabled, Foster Care and Adoption Assistance, and Social Services block grant operate differently in Puerto Rico than they do in the states. Under statehood, both the amount of the welfare benefits and the percentage of population receiving them would increase."); see also T. Alexander Aleinikoff, Puerto Rico and the Constitution: Conundrums and Prospects, 11 CONST. COMMENTARY 15, 15 (1994).

107 See Califano v. Torres, 435 U.S. 1, 2 (1978) (holding that government benefits of a state citizen do not transfer when that citizen moves to Puerto Rico).

108 See Social Security Amendments of 1972, Pub. L. No. 92-603, § 303(b), 86 Stat. 1329, 1484 (repealing Titles I, X, and XIV of the Social Security Act with the exception that these titles would still apply to Puerto Rico, Guam, and the Virgin Islands); 42 U.S.C. § 1308(a)(1) (Supp. 1997) (specifying the amount of social security payments to Puerto Rico, Guam, the Virgin Islands, and American Samoa); see also 42 U.S.C. § 1396(b) (1994).

109 See 42 U.S.C. § 1396(b) (1994).

110 435 U.S. 1 (1978).

111 See id. at 4-5.

112 See Harris v. Rosario, 446 U.S. 651, 651-52 (1980).

113 See id.; see also Califano, 435 U.S. at 4-5.

114 See Efren Rivera Ramos, The Legal Construction of American Colonialism: The Insular Cases (1901-1922), 65 REV. JUR. U. P.R. 225, 235 (1996) (reviewing the role of the U.S. Supreme Court in justifying U.S. imperialism). Ironically, the United States, as the colonial sovereign, exercises jurisdiction over the most basic aspects of life in the territory as it does in the states, including communications, currency, labor relations, postal service, environment, foreign affairs, and military defense.

115 Karst, supra note 24, at 1.

116 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1515 (2d ed. 1988). Tribe explained:

When the legal order that both shapes and mirrors our society treats some people as outsiders or as though they were worth less than others, those people have been denied the equal protection of the laws. The "citizenship clause of the fourteenth amendment . . . does not allow for degrees of citizenship": No citizen is "more equal" than any other.



118 See Treaty of Paris, Dec. 10, 1898, U.S.-Spain, art. IX, 30 Stat. 1754, 1759; see also JUAN R. TORRUELLA, THE SUPREME COURT AND PUERTO RICO: THE DOCTRINE OF SEPARATE AND UNEQUAL 3 n.1 (1985).

119 Treaty of Paris, Dec. 10, 1898, U.S.-Spain, 30 Stat. 1754. The Territory Clause provided Congress with the power to govern the native inhabitants of the ceded territories. See U.S. CONST. art. IV, § 3, cl. 2.

120 See DOCUMENTS, supra note 32, at 54.

121 Id. at 55.

122 See Foraker Act, ch. 191, 31 Stat. 77 (1900) (codified as amended in various sections of 48 U.S.C.) (providing for the enactment of a civil government, including a limited elected legislature and an appointed supreme court and governor).

123 Id. at 79.

124 See CABRANES, supra note 51, at 1.

125 See Act of May 17, 1932, ch. 190, 47 Stat. 158 (1932).

126 The United States did not formally annex Cuba because the United States purportedly intervened in Cuba to help secure Cuba's independence. See 2 PHILIP S. FONER, A HISTORY OF CUBA AND ITS RELATIONS WITH THE UNITED STATES 337-40 (1963). By Congressional resolution, Congress declared its intentions not to annex Cuba. In the Teller Resolution, Congress provided "[t]hat the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over . . . [Cuba]." H.R.J. Res. 24, 55th Cong. (1898).

127 See Treaty of Paris, Dec. 10, 1898, U.S.-Spain, 30 Stat. 1754 (acquiring three former Spanish territories—Puerto Rico, Guam, and the Philippines).

128 See Ramos, supra note 114, at 236-37 (stating that the Northwest Ordinance of 1787 provided a multi-stage model leading toward eventual statehood).

129 See id. at 227.

130 See CABRANES, supra note 51, at 4.

131 Id.

132 In 1900 the Foraker Act did not provide the people of Puerto Rico with U.S. citizenship, but it provided them with the status of U.S. nationals. While a citizen is "a person who is endowed with full political and civil rights in the body politic of the state," a national is "a person who, though not a citizen, owes permanent allegiance to the state and is entitled to its protection." Id. at 6 n.12 (quoting 3 GREEN HAYWOOD HACKWORTH, DIGEST OF INTERNATIONAL LAW 1-2 (1942)). According to the Foraker Act, "[A] ll inhabitants continuing to reside [in Puerto Rico] . . . shall be deemed and held to be citizens of Porto [sic] Rico, and as such entitled to the protection of the United States." Foraker Act, ch. 191, § 7, 31 Stat. 77, 79 (1900).

133 See CABRANES, supra note 51, at 4-5.

134 33 CONG. REC. 3613 (1900) (quoting from a report of the Philippine Commission to the President).

135 Id. at 1941 (remarks of Rep. Payne).

136 Id. at 2105 (remarks of Rep. Spight).

137 Id. at 1959 (remarks of Rep. Dalzell).

138 See id.

139 Id. at 2172 (remarks of Rep. Gilbert).

140 Id. at 3616 (remarks of Sen. Bate). Though Senator Bate's comments contained racist overtones, they also expressed a distaste for the imperial nature of the United States' ambitions. Earlier in the debate, Senator Bate declared:

I was opposed to acquiring the islands of Spain, and for that reason, in part, voted against the ratification of the treaty of Paris. I am opposed to the retention of those . . . islands a moment longer than is necessary to reestablish order and security. I do not approve the manner in which the islands and their people were obtained and have been treated since they came under our control. But so long as the islands are under our control, and so long as our flag floats there, the representative of our authority, and peace having been secured, I shall, as far as may be within my power, advocate and support the extension to those people of every privilege, right and immunity which the people of the States enjoy.

Id. at 3612.

141 See Gabriel Terrasa, The United States, Puerto Rico and the Territorial Incorporation Doctrine, 31 J. MARSHALL L. REV. 55, 56 (1997) (noting that racism by politicians and scholars led to a plan to maintain the new territories as "dependencies," which were not due the same constitutional protections as the states).

142 Simeon E. Baldwin, The Constitutional Questions Incident to the Acquisition and Government by the United States of Island Territory, 12 HARV. L. REV. 393, 415 (1899).

143 James Bradley Thayer, Our New Possessions, 12 HARV. L. REV. 464, 481 (1899).

144 See CABRANES, supra note 51, at 30-32 (noting that more legitimate concerns included proximity, economic considerations, and the Puerto Ricans' lack of resistance to invasion and occupation).

145 Ch. 416, 39 Stat. 545 (1916) (repealed upon the independence of the Philippines in 1946).

146 See Jones Act of 1917, ch. 145, § 5, 39 Stat. 951, 953 (1917) (conferring U.S. citizenship on all "citizens of Porto [sic] Rico" as that term was defined in the Foraker Act). However, even the initial grant of U.S. citizenship did not come without confusion. The Jones Act of 1917 did not make any provision for persons born in Puerto Rico after the passage of the Act. See González, supra note 69, at 325. The Immigration and Nationality Act of 1952 generally resolved this confusion:

All persons born in Puerto Rico on or after April 11, 1899, and prior to January 13, 1941, subject to the jurisdiction of the United States, residing on January 13, 1941, in Puerto Rico or other territory over which the United States exercises rights of sovereignty and not citizens of the United States under any other Act, are declared to be citizens of the United States as of January 13, 1941. All persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth.

8 U.S.C. § 1402 (1994).

147 See Ramos, supra note 114, at 240.

148 Race was a determinative factor throughout the United States' era of expansion. For instance, President Grant's efforts to acquire the Dominican Republic in the 1870s failed due, in large measure, to fears concerning the race and "civilization" of the Dominican people. See ERNEST R. MAY, AMERICAN IMPERIALISM: A SPECULATIVE ESSAY 100-01 (1968).

149 Neuman, supra note 43, at 957-58 (suggesting that the Supreme Court used the reasoning in Dred Scott as a starting point to limit the rights of citizens in the unincorporated territories).

151 Downes v. Bidwell, 182 U.S. 2 44, 279 (1901) (involving a New 151 Downes v. Bidwell, 182 U.S. 244, 279 (1901) (involving a New York businessman who did not want to pay duties on oranges shipped from Puerto Rico).

152 See id.

153 See GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION 145 (1996) (concluding that "ethnic nationalism" manifested itself in this country when Americans viewed citizens of the newly-acquired territories as unfit for American citizenship).

154 Id.

155 See Loughborough v. Blake, 18 U.S. (5 Wheat.) 317, 318-22 (1820) "That the general grant of power to lay and collect taxes, is made in terms which comprehend the district and territories as well as the States, is, we think, incontrovertible." Id. at 322.

156 See Herrera, supra note 8, at 613.

157 182 U.S. 1 (1900).

158 Id. at 196-97 (quoting in part National Bank v. County of Yankton, 101 U.S. 129 (1879)) (discussing whether a territory ceded to the United States remained a "foreign country" within the meaning of the tariff laws).

159 182 U.S. 244 (1901).

160 Id. at 279.

161 Id. at 287.

162 See id.

163 Id. The Court, nonetheless, acknowledged that Congress's power was subject to the Constitution's "fundamental limitations in favor of personal rights . . . ." Id. at 268.

164 See id. at 302-03 (White, J., concurring).

165 Id. at 303 (quoting American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 542 (1828)).

166 Id. at 302 (quoting American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 542 (1828)).

167 Id. at 293.

168 See Neuman, supra note 43, at 961.

169 See Herrera, supra note 8, at 612 ("According to Justice White . . . incorporation could not occur merely by the exercise of the treaty-making power; it required congressional legislation."); see also Downes, 182 U.S. at 339 (White, J., concurring).

170 See Neuman, supra note 43, at 961.

171 See id.

172 Downes, 182 U.S. at 311 (White, J., concurring).

173 Id. at 313.

174 See Ramos, supra note 114, at 248.

175 See id. at 245-50.

176 Downes, 182 U.S. at 306. In an eloquent dissent in Downes, Justice Harlan courageously objected to the logic and morality of the incorporation doctrine: "The Constitution speaks not simply to the States in their organized capacities, but to all peoples, whether of states or territories . . . ." Id. at 378 (Harlan, J., dissenting).

177 Id. at 306.

178 NEUMAN, supra note 153, at 100.

179 195 U.S. 138 (1903).

180 See id. at 142-43.

181 258 U.S. 298 (1921).

182 See id. at 309.

183 See id.

184 Id. at 310. The Balzac Court, somewhat surprisingly, made completely inconsistent statements concerning the citizenship status of the people of Puerto Rico. Despite holding that such citizens did not have a constitutional right under the Sixth Amendment, the Court announced that the grant of United States citizenship to the people of Puerto Rico was "to put them as individuals on an exact equality with citizens from the American homeland . . . ." Id. at 311.


186 See id. at 57. Representative Atterson Rucker of Colorado stated, "The production of [Puerto Rican] children, especially of the dark color, is largely on the increase." Id. (quoting 43 CONG. REC. 2923 (1909)).

187 43 CONG. REC. 2921 (1909) (remarks of Rep. Slayden).

188 See Ch. 145, 39 Stat. 951, 953 (1917) (codified as amended in scattered sections of 48 U.S.C.).

189 In Balzac v. Porto [sic] Rico, 258 U.S. 298, 308 (1922), Chief Justice Taft noted, "When Porto [sic] Ricans passed from under the government of Spain, they lost the protection of that government . . . . They had a right to expect, in passing under the dominion of the United States, a status entitling them to the protection of their new sovereign." Id. Responding to the yearning of the islanders, the United States gave them the "boon" of U.S. citizenship. See id.

190 The granting of U.S. citizenship to the Puerto Rican people occurred during the hey-day of American nativism, during what is known as the Americanization movement where, among other things, several states adopted laws restricting the use of foreign language and sought to secure segregated schools in an effort to preserve "America for Americans." Knapp, supra note 47, at 415; see also Donna F. Coltharp, Comment, Speaking the Language of Exclusion: How Equal Protection and Fundamental Rights Analyses Permit Language Discrimination, 28 ST. MARY'S L.J. 149, 160-61 (1996).

191 54 CONG. REC. 2250 (1917) (remarks of Sen. Vardaman).

192 See CABRANES, supra note 51, at 33 (noting that states eventually would be formed from newly acquired territories).

193 Autonomy Is Asked for in Puerto Rico Vote, N.Y. TIMES, Feb. 11, 1943, at 6.

194 See Act of July 3, 1952, ch. 567, 66 Stat. 327 (1952) (approving the constitution of the commonwealth); Act of July 3, 1950, ch. 446, 64 Stat. 319 (1950) (providing for organization of the constitutional government). For a more elaborate discussion of the creation of the commonwealth, see TORRUELLA, supra note 118, at 133; Román, supra note 62, at 1119.

195 Richie Pérez, From Assimilation to Annihilation: Puerto Rican Images in U.S. Films, 2 CENTRO BULL., Spring 1990, at 8, 12 (quoting a 1949 study entitled "Cultural Conflicts in the Puerto Rican Adjustment"). A 1947 article on "cryptomelanism" noted considerable drawbacks to being a dark-skinned Puerto Rican, including the fact that such a color is "not presentable to North Americans." FRANCISCO CARDASCO, THE PUERTO RICAN EXPERIENCE 57 (1973).

196 Luis Muñoz Marin was the governor of Puerto Rico from 1948 to 1964. See JOSE TRIAS MONGE, PUERTO RICO 106 (1997).

197 For a further discussion of the hegemony that prevailed in Puerto Rico during this period, see Román, supra note 62, at 1119.

198 See Act of July 3, 1950, ch. 446, 64 Stat. 319 (1950).

199 H.R. REP. NO. 81-2275, at 3 (1950), reprinted in 1950 U.S.C.C.A.N. 2682, 2683.

200 Id. at 4, reprinted in 1950 U.S.C.C.A.N. 2682, 2684.

201 See Act of Feb. 20, 1964, Pub. L. No. 88-271, 78 Stat. 17 (1964).

202 See id.

203 See Román, supra note 62, at 1161.

204 See FERNANDEZ, supra note 185, at 221. Sixty percent of the population voted for "continuation of the present status," and thirty-nine percent voted for statehood. Id.

205 See CARR, supra note 74, at 93.

206 See General Accounting Office, Puerto Rico: Information for Status Deliberations (June 15, 1989), in 3 PUERTO RICO: POLITICAL STATUS REFERENDUM 1989-1991, at 18 (P.R. Fed. Affairs Admin. ed., 1992).

207 See id.

208 See id. at 17.

209 144 CONG. REC. H772-04, H773 (daily ed. Mar. 6, 1998) (statement of Rep. Young).

210 Id. The Puerto Rican legislature repeated its requests for Congressional action in 1993, 1994, and again in 1997. See id.

211 See FERNANDEZ, supra note 185, at 261. According to Fernandez, 48.4% voted for Commonwealth status, 46.2% for statehood, and 4.4% for independence. See id.

212 See id.

213 See supra notes 135-40 and accompanying text.

214 See A. Martin Wagner & Neil A.F. Popouic, Environmental Injustice on United States Bases in Panama: International Law and the Right to Land Free from Contamination and Explosives, 38 VA. J. INT'L L. 401, 403 (1998); Board of Editors, New Challenges for International Law, 19 FORDHAM INT'L L.J. 1831, 1831 (1996) (summarizing significant historical events that reflected dramatic political changes in the world, including the collapse of the former Soviet Union).

215 See Martin Tolchin, Moynihan Tries to Save Puerto Rico Referendum, N.Y. TIMES, Feb. 22, 1991, at A18.

216 Id.

217 See 137 CONG. REC. 3962 (1991) (statement of Sen. Moynihan). Senator Moynihan also noted:

[The people of Puerto Rico] sure as hell belong in the gulf, the Persian Gulf . . . as they were in Korea. I do not take any pleasure in citing competitive statistics about whose State had the most persons killed or wounded . . . But let no one doubt that high on each of those lists has been Puerto Rico.

. . . .

. . . I cannot believe that we will not give the right of self-determination, a right pledged by President after President, pledged before the world, the United Nations . . . . I can imagine it being reported by the Communist-controlled media, from Havana and elsewhere, that the United States is denying people the right of self-determination. And why? Because of their language and their color, sir.

Id. at 3962-63.

218 Id. at 3962.

219 Id. Unfortunately, Senator Moynihan later apologized for his frankness. See id. at 7183.

220 Id. at 3962.

221 See id. at 7183.

222 See Martin Tolchin, Prospects Dim on Bill for Puerto Rico Referendum, N.Y. TIMES, Feb. 21, 1991, at B7.

223 J. Jennings Moss, Senators Leery of Puerto Rico as 51st State, WASH. TIMES, Feb. 21, 1991, at A4.

224 FERNANDEZ, supra note 185, at 57.

225 See Editorial, America's Captive Nation, N.Y. TIMES, Feb. 22, 1991, at A28. Other senators, likewise, expressed little interest in allowing for a plebiscite. Senator Ford reportedly said, "Let Puerto Rico make a decision, and vote and petition us, and then we'll decide whether to accept them." Tolchin, supra note 222, at B7. Likewise, Senator Kent Conrad did not favor statehood for Puerto Rico believing it "could create a situation similar to the French-speaking Quebec province's attempts to leave Canada." Moss, supra note 223, at A4.

226 Tolchin, supra note 222, at B7.

227 See 54 CONG. REC. 2250 (1917) (remarks of Sen. Vardaman).

228 Editorial, supra note 225, at A28.

229 Id.

230 Bill McAllister, Puerto Rico Referendum Killed; Senate Panel Rejects Plan to Let Islanders Vote on Political Status, WASH. POST, Feb. 28, 1991, at A6 (quoting Sen. Nickles).

231 Id. Several other senators promoted a non-binding plebiscite. See Editorial, supra note 225, at A28. Not all senators were as uncaring. Senator Paul Simon championed the cause of the people of Puerto Rico, demanding their right of self-determination. He stated that "[f]or the United States to continue to ignore the wishes of the people of Puerto Rico and tolerate second-class citizenship for them is simply not acceptable." 137 CONG. REC. 6387 (1991). "Eventually, commonwealth status will go, just as other forms of colonialism around the world have gone. Puerto Rico will either become a state or become independent. That decision should be up to the people of Puerto Rico." Id. at. 6388 (statement of Sen. Simon). Senator Simon also noted that the United States has historically supported and stood for self-determination, and yet it "has failed to apply self-determination to the status of Puerto Rico." Id. at 6947.

In 1991 Richard Thornburgh, the Attorney General under President Bush's administration, testified before the Senate Energy and Natural Resources Committee and argued against commonwealth status. The Attorney General cited to the United States Constitution's Territorial Clause, reportedly to suggest that Puerto Rico is nothing but a colony of the United States. See Gov. Rafael Hernández Col"n, Letter to the Editor, Puerto Rico Will Choose, Despite White House, N.Y. TIMES, Feb. 21, 1991, at A20, reprinted in 137 CONG. REC. 3964 (1991) (introduced by Sen. Moynihan).

Interest groups expressed similar concerns over the cost of incorporation. For instance, a recent executive memorandum of the Heritage Foundation opined that statehood

could significantly alter the future political and economic course of America. If Puerto Rico is elevated to statehood, its elected representatives in Congress will be more likely to favor further expansion of entitlement benefits . . . . Before further action is taken, supporters of H.R. 856 [a referendum] should be asked to identify for the American public the budget cuts necessary to offset the multibillion dollar impact of this legislation.

Robert DePosada, Executive Memorandum No. 495 from Robert DePosada, Smith Fairfield, Inc. to the Heritage Foundation (Oct. 2, 1997) (on file with the Heritage Foundation, Wash., D.C.).

232 See H.R. REP. NO. 105-131, at 20-21 (1997) ("Following a failed attempt by Congress in 1991 to approve legislation to enable the people to exercise the right of self-determination regarding their political status, a plebiscite to enable the residents of Puerto Rico to express their preferences on the status question was conducted by the local government under Puerto Rican law on November 14, 1993.").

233 Editorial, supra note 225, at A28.

234 See FERNANDEZ, supra note 185, at 261.

235 See H.R. 3024, 104th Cong. (1996) (current version at H.R. 856, 105th Cong. (1998)) (providing a process leading to full self-government for Puerto Rico).

236 See H.R. 3024, 104th Cong. § 4(a)(2)(g) (1996) (requiring the proposed sovereign state of Puerto Rico to adhere to "the same language requirement of the several States").

237 See No Se Quiere Cambio en el Status Politico, NUEVO DíA, Aug. 12, 1997, at 4 [hereinafter NUEVO DíA] ("La encuesta de El Nuevo Día . . . indica que aunque los puretoriqueños aceptan que bajo la estadidad habrá de lograrse mejoras econ"micas, cualquier entusiasmo que pueda suscitar el progreso material se desvanece con las 'desventajas emocionales' que consideran traería aparejada en el idioma, la cultura y en la péridida de símbolos de las nacionalidad, cuya preservaci"n inspira un hondo sentimiento patrio." ("The El Nuevo Dia survey . . . indicates that even though Puerto Ricans accept that under statehood many economic improvements will be achieved, any enthusiasm provoked by the thought of material progress vanishes due to the 'emotional disadvantages' that they consider will occur in connection with the language, the culture, and in the loss of national symbols, of which their preservation inspires a deep-rooted and sentimental expression of their national heritage.")); see also CARR, supra note 74, at 297, 335-36; FERNANDEZ, supra note 185, at 219.

238 See 142 CONG. REC. E1829-04 (daily ed. Sept. 30, 1996) (statement of Rep. Young).

239 Id. at E1830.

240 221 U.S. 559 (1911).

241 See id. at 575-76.

242 See 142 CONG. REC. E1830 (daily ed. Sept. 30, 1996) (statement of Rep. Young).

243 Id.

244 Id.

245 Id.

246 See id. The most recent version of the bill provides that if statehood is granted, "[o]fficial English language requirements of the Federal Government apply in Puerto Rico to the same extent as Federal law requires throughout the United States." United States-Puerto Rico Political Status Act, H.R. 856, 105th Cong. § 3(b) (1998).

247 On March 4, 1998, the House of Representatives passed H.R. 856 by one vote, 209-208. See Bob Edwards, Congress Approves Puerto Rico Vote, ASSOCIATED PRESS, Mar. 5, 1998, available in 1998 WL 7392786.

248 Social Darwinism, the application of Darwinism to the study of human society, posits that certain groups achieve advantage over others due to biological or genetic superiority and has been used as an ideological justification for the elitist social structures of various Western countries. See HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM 178-80 (1951).

249 Ramos, supra note 114, at 289.

250 While military service is not the only means to demonstrate loyalty, this category is a popular one in the United States. The honorable tradition of the Puerto Rican people's military service is one of many facts of which many Americans are largely unaware. The Puerto Rican people have served this country heroically since 1899. During World War I, 18,000 served, often defending vital strategic installations. Over 65,000 Puerto Ricans served in World War II. Puerto Rico had more soldiers in the Korean conflict than 20 states and suffered more injuries per capita than any state. The 270 Puerto Rican combat deaths in Vietnam placed Puerto Rico ahead of at least 14 states and territories. See 137 CONG. REC. 6388 (1991) (statement of Sen. Simon).

251 See Juan F. Perea, Los Olvidados: On the Making of Invisible People, 70 N.Y.U. L. REV. 965, 972 (1995).

252 See Ramos, supra note 114, at 285.

253 THE FEDERALIST NO. 2, at 91 (John Jay) (Isaac Kramnick ed., 1988).

254 Perea, supra note 251, at 973 (quoting Benjamin Franklin, Observations Concerning the Increase of Mankind, Peopling of Countries, Etc., in 3 THE WRITINGS OF BENJAMIN FRANKLIN 63, 73 (Albert H. Smyth ed., 1905) (1751)).

255 Id. at 973 (quoting Franklin, supra note 254, at 72).

256 Perea, supra note 251, at 974 (quoting Letter from Thomas Jefferson to James Monroe (Nov. 24, 1801), in THOMAS JEFFERSON: WRITINGS 1096-97 (Merrill D. Peterson ed., 1984)). Professor Perea observed that Jefferson's references to "blot[s]" and "mixture" related to Africans. See id.

257 See Act of Mar. 26, 1790, ch.3, 1 Stat. 103 (1790).

258 Id. (emphasis added).

259 In re Hong Yen Chang, 24 P. 156, 157 (Cal. 1890).

260 Peter Margulies, Asylum, Intersectionality, and AIDS: Women with HIV as a Persecuted Social Group, 8 GEO. IMMIGR. L.J. 521, 531 (1994) (citing Ozawa v. United States, 260 U.S. 178, 192-93 (1922)).

261 See Ozawa, 260 U.S. at 192-93.


263 See id.

264 Id. at 116-17.

265 See Beverly Horsburgh, Schr'dinger's Cat, Eugenics, and the Compulsory Sterilization of Welfare Mothers: Deconstructing an Old/New Rhetoric and Constructing the Reproductive Right to Natality for Low-Income Women of Color, 17 CARDOZO L. REV. 531, 536 (1996).

266 See 131 CONG. REC. 8559 (1985).

267 See 35 CONG. REC. 5139 (1902).

268 See 131 CONG. REC. 8559 (1985) (report by Sen. Kennedy concerning the history of the statehood process).

269 Id.


271 Id.

272 See 131 CONG. REC. 8559 (1985).

273 Id.

274 See Lisa Cami Oshiro, Recognizing Na Kanaka Maoli's Right to Self-Determination, 25 N.M. L. REV. 65, 74 (1995).

275 See id. at 75.

276 S. REP. NO. 86-80, at 12 (1959), reprinted in 1959 U.S.C.C.A.N. 1346, 1358.

277 131 CONG. REC. 8559 (1985) (CRS report).

278 KLOSS, supra note 270, at 206. The intersection of race and language is a problem that still impedes the Puerto Rican statehood movement.

279 See 131 CONG. REC. 8559 (1985).

280 See KLOSS, supra note 270, at 198.

281 See id. at 201.

282 While I object in the most strongest terms to the colonial status for Puerto Rico, as a resident of the mainland who will not be as directly affected as the resident's of the territory by any ultimate decision on its status, I do not believe it is my place to impart my view on the preferred legitimate status option—statehood or independence. Others argue for allowing persons of Puerto Rican ancestry living on the U.S. mainland the right to vote on Puerto Rico's status plebiscites. See Lisa Napoli, The Legal Recognition of the National Identity of a Colonized People: The Case of Puerto Rico, 18 B.C. THIRD WORLD L.J. 160, 166 (1998).

283 144 CONG. REC. H773 (daily ed. Mar. 4, 1998) (statement of Rep. Young).

284 See H.R. 856, 105th Cong. (1998); S. 472, 105th Cong. (1998). For a more detailed discussion of this process, see Román, supra note 62, at 1119.

285 See 131 CONG REC. S4441-03 (1985) (providing a history of the statehood process); see also Hawaii Statehood Admissions Act, Pub. L. No. 86-3, § 7, 73 Stat. 4, 7-8 (1959) (Hawaii); Alaska Statehood Law, Pub. L. No. 85-508, § 8, 72 Stat. 339, 343-44 (1958) (Alaska); Act of Jan. 6, 1912, 37 Stat. 1723 (1912) (New Mexico).

286 It is difficult to talk about nativism without drawing reference to the demagogic campaign rhetoric of Pat Buchanan and Pete Wilson. See Paul A. Gigot, Getting the G.O.P. Back to Reagan on Immigration, WALL ST. J., Jan. 24, 1997, at A14 (characterizing Republicans as anti-immigration); Juan Gonzalez, Time's Right to Settle P.R. Status, N.Y. DAILY NEWS, Mar. 3, 1998, at 12 (stating that Buchanan fears Puerto Rico because its citizens do not speak English).

287 Ramos, supra note 114, at 289.

288 Id. at 285.

289 Id. at 286-87, (quoting JOHN W. BURGESS, RECONSTRUCTION AND THE CONSTITUTION 1866-1876, at ix (1923)).

290 Id; accord supra notes 73-77 and accompanying text (discussing the Insular Cases).

291 See supra Parts IV.A-B.

292 For these and other reasons the statehood movement in Puerto Rico is not only gaining influence among the electorate, it is gaining support from intellectuals. For instance, at the University of Puerto Rico there is a group that favors "radical statehood." See Edgardo Rodriquez Julia, Statehood for Puerto Rico?, MIAMI HERALD, Aug. 2, 1998, at L1. They prefer equality under statehood rather than inequality under the current colonial regime—a sort of radical pragmatism. See Radical Statehood Group, Manifesto (visited Sept. 22, 1998) .

293 See Eric K. Yamamoto et al., Courts And The Cultural Performance: Native Hawaiians' Uncertain Federal And State Law Rights To Sue, 16 U. HAW. L. REV. 1, 3 (1994).

294 See id.

295 Id. at 4 (stating that the right to self-determination is an example of such a human right).

296 See H.R. REP. NO. 104-713, pt. 2, at 4 (1996).

297 See id.

298 See FERNANDEZ, supra note 185, at 221, 261.

299 Aleinikoff, supra note 106, at 33.

300 See Román, supra note 62, at 1174.

301 See generally T.J. Jackson Lears, The Concept of Cultural Hegemony: Problems and Possibilities, 90 AMER. HIST. REV. 567 (1985).


303 For a more expansive discussion of the role of hegemony in Puerto Rico's colonial predicament, see Román, supra note 62, at 1176-1205.

304 See id. at 1176-87.

305 See id.

306 See id. at 1153.

307 H.R. REP. NO. 104-713, pt. 2, at 4 (1996).

308 See id. at 18.

309 See id.

310 See NUEVO DíA, supra note 237, at 4.

311 See id.

312 See id.

313 See id.

314 See, e.g., 144 CONG. REC. H829-30 (daily ed. Mar. 4, 1998) (statement by Rep. Gutierrez) ("If Puerto Ricans are pushed to vote in favor of statehood, they are going to lose one of their most treasured traditions of representation in the sports arena.").

315 See NUEVO DIA, supra note 237, at 4.

316 See Román, supra note 62, at 1153.

317 See generally LA RAZA: FORGOTTEN AMERICANS (Julian Samora ed., 1966) (analyzing the status of the people with Spanish heritage in the southwestern United States) [hereinafter LA RAZA]; GEORGE I. SANCHEZ, FORGOTTEN PEOPLE: A STUDY OF NEW MEXICANS (rev. ed. 1967) (studying the social and economic conditions of the people with Spanish heritage in New Mexico); Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 CAL. L. REV. 1241 (1993) (addressing the need for Asian-American legal scholarship).

318 See generally LA RAZA, supra note 317.

319 Perea, supra note 251, at 966.

320 Id.

321 Neil Gotanda, Asian-American Rights and the "Miss Saigon Syndrome," in ASIAN AMERICANS AND THE SUPREME COURT 1087 (Hyung-Chan Kim ed., 1992) (observing that the controversy concerning the race of the lead character of the play is typical of past and current marginalization of Asian Americans).

322 Id. at 1045.

323 See id. at 1090.

324 In fact, the multi-level conception of race or racial stratification that is apparent when addressing these other non-whites raises distinctly different legal issues of race and consequently a unique form of racism. See id. at 1096.

325 See id.

326 See id.

327 See Ian F. Haney-L"pez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.- C.L. L. REV. 1, 27-28 (1994).

328 See id. at 28.

329 See id.

330 Kevin R. Johnson, Some Thoughts on the Future of Latino Legal Scholarship, 2 HARV. LATINO L. REV. 101, 111 (1997).

331 Id.

332 Juan F. Perea, Ethnicity and the Constitution: Beyond the Black and White Binary Constitution, 36 WM. & MARY L. REV. 571, 571 (1995).

333 See Johnson, supra note 330, at 110; Perea, supra note 332, at 572-73.

334 Johnson, supra note 330, at 106.

335 See Perea, supra note 251, at 967-70.

336 Popular culture recently hit the nail on the head. In an episode of the X Files, after two Mexican immigrants contracted a disease from outer space, Agent Scully asked Agent Mulder why these two aliens, who were deformed by the disease, would not be discovered. Mulder explained that "aliens" are invisible, and people do not see them because people do not care to see them. See X Files: El Mundo Gira (Fox television broadcast, Jan. 12, 1997).

337 But see Gonzalez v. Williams, 192 U.S. 1, 15-16 (1904) (holding that the people of Puerto Rico are not aliens under U.S. immigration law).

338 Ethnicity refers to physical and cultural characteristics that make a social group distinctive, either in group members' eyes or in the view of outsiders. Ethnicity consists of a set of ethnic traits that includes but is not limited to, race, national origin, ancestry, and language. See Perea, supra note 251, at 983. What we consider ethnic traits are those traits that we can perceive, not the "often imperceptible fact of national origin." Id. at 983-84. It is the perception of differences, often based on visible ethnic traits, that results in discrimination. See id. The Puerto Rican language and culture are perceptible traits that could lead to discrimination.

339 The people of Puerto Rico also face the paradox of racial categorization that depends on skin color, perceptions concerning ancestry, and language. Thus, it appears that U.S. perceptions of foreignness themselves do not inevitably lead to a conclusion of racial distinctiveness.

340 See KLOSS, supra note 270, at 206.

341 Karst, supra note 23, at 248.

342 Id.

343 See TORRUELLA, supra note 118, at 267-68 (concluding that by allowing differential treatment of Puerto Rican citizens, the Insular Cases create a separate and unequal status for the Puerto Ricans).

344 Downes v. Bidwell, 182 U.S. 244, 287 (1901).

345 See Román, supra note 62, at 1206.

346 See U.S. CONST., art. IV, § 3, cl. 2.

347 See CABRANES, supra note 51, at 4-6; González, supra note 69, at 323-31; Román, supra note 62, at 1121 n.6; Jesús G. Román, Comment, Does International Law Govern Puerto Rico's November 1993 Plebiscite?, 8 LA RAZA L.J. 98, 103-16 (1995). The United States-Puerto Rico relationship also illustrates how the Puerto Rican people's race has been socially constructed and has changed depending upon the circumstances. See Haney-L"pez, supra note 327, at 27-28.

348 See Drimmer, supra note 43, at 668-69.

349 See Haney-L"pez, supra note 327, at 30.

350 The chances of adding a state that may raise government entitlements over $3 billion a year are remote at best. See Aleinikoff, supra note 106, at 21-22 (citing General Accounting Office, Puerto Rico: Update of Selected Information: Report to Senate Committee on Energy and Natural Resources, GAO/HRD-89-104FS (Aug. 9, 1989), in 3 PUERTO RICO: POLITICAL STATUS REFERENDUM 1989-1991, at 215-21 (P.R. Fed. Affairs Admin. ed., 1992) (discussing the recent economic history of Puerto Rico and its implications for statehood).

351 FERNANDEZ, supra note 185, at 57.

352 See, e.g., Editorial, supra note 225, at A28; Tolchin, supra note 222, at B7.

353 Proposition 187, a California referendum passed in 1994, denies various social services to illegal aliens in the state, and faces numerous state and federal court challenges to its constitutionality. See John Boudreau, Effort to Outlaw Affirmative Action Promoted in California, WASH. POST, Dec. 27, 1994, at A3.

354 See ARENDT, supra note 248, at 158 (finding that, with regard to the imperialist policies of Western countries, "[r]acism has been the powerful ideology of imperialistic policies since the turn of our century").

355 While I hope that I will be proven wrong, I venture to guess that neither H.R. 856, 105th Cong. (1998), nor S. 472, 105th Cong. (1997), will ever become law.

356 Doug J. Swanson & Ed Timms, American Empire: The Territories; Islands Scarred by Colonial Legacy, Years of U.S. Neglect, DALLAS MORNING NEWS, Sept. 9, 1990, at M1. Return to text.