A commenter to the Puerto Rico Report has asked whether incorporation would help Puerto Rico. It is a good question, and one that we will address here.
In 1901, the Supreme Court ruled in Downes vs. Bidwell that no territory could be incorporated into “the American family” until Congress “provides for” that incorporation. Since then, it has been understood that until Congress specifically says so, Puerto Rico is not incorporated into the United States.
What is the difference between an incorporated territory and an unincorporated territory?
The United States Department of the Interior describes it like this:
- Unincorporated territory: A United States insular area in which the United States Congress has determined that only selected parts of the United States Constitution apply.
- Incorporated territory: A United States insular area in which the United States Congress has applied the full corpus of the United States Constitution as it applies in the several States. Incorporation is interpreted as a perpetual state. Once incorporated, the Territory can no longer be de-incorporated.
Under either definition, Puerto Rico would still be a territory, subject to the Territorial Clause of the U.S. Constitution. It is possible that incorporation would put Puerto Rico further along on a path to statehood, but there would not necessarily be a timeline set up for admission.
Incorporation is not a prerequisite to statehood, which only requires a majority vote by Congress and Presidential signature, but it would give the full range of Constitutional rights to the people of Puerto Rico.
Only one incorporated territory exists today: Palmyra Atoll, an uninhabited nature preserve. There are thirteen unincorporated territories: three in the Caribbean (Navassa Island, Puerto Rico and the United States Virgin Islands) and ten in the Pacific (American Samoa, Baker Island, Guam, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll, the Northern Mariana Islands and Wake Atoll).
Will Puerto Rico become incorporated?
Some observers claim that Puerto Rico became incorporated in 1917, when people born in Puerto Rico attained U.S. citizenship, or in 1952, when the Constitution of Puerto Rico was accepted by Congress, or gradually over time as Puerto Rico became even more clearly intertwined in the U.S. economy and culture. However, decisions since then by the U.S. Supreme Court confirm that Puerto Rico is still unincorporated.
In April of 2022, Supreme Court Justice Neil M. Gorsuch took issue with Downes vs. Bidwell and a series of related cases issued around the same time known as the Insular Cases, which affirmed that only incorporated territories are entitled to all of the Constitution’s protections.
“The flaws in the Insular Cases are as fundamental as they are shameful,” Justice Gorsuch wrote, further elaborating that “[n]othing in the Constitution speaks of “incorporated” and “unincorporated” Territories. Nothing in it extends to the latter only certain supposedly “fundamental” constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion.”
Gorsuch concluded that “[t]he Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”
The court, he emphasized, should overrule those decisions in “an appropriate case.”
The case of Fitesemanu v. United States, which concerned U.S. citizenship rights for the residents of American Samoa, would have provided the Court with an opportunity to follow through on Gorsuch’s recommendation to overrule the Insular Cases, but the Court denied cert on Fitesemanu on October 17, 2022. By deciding not to hear the case, the Court brought an end to litigation that sought to make residents of American Samoa U.S. citizens by birth. The Supreme Court also avoided reassessing Downes and the rest of the Insular Cases.
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