RNC Resolution De-Links Puerto Rico Status From Other Territories

On August 25 the Republican National Committee adopted a resolution at its summer meeting in Nashville, Tennessee, calling for U.S. citizens in four U.S. island territories to attain “unfettered enjoyment of their American citizenship.”

The RNC resolution affirms that all U.S. citizens, including those in the territories, should be accorded “full enjoyment“ of American citizenship “regardless of sex, race, color, ethnicity, religion or creed.”

The four territories identified in the resolution – Puerto Rico, Guam, Northern Marianas and U.S. Virgin Islands – each have birthright U.S. citizenship and local governments under separate federal territorial statutes.

Significantly, the RNC resolution states that the future political status of each of these four territories must be “justly resolved” according to its unique circumstances. Most importantly, the next recital in the resolution refers to the newly declared “just resolution” territorial status policy as it relates to Puerto Rico as follows:

“This sentiment is consistent with the 2016 Republican Party platform position on Puerto Rico’s status, which supported ‘the right of the United States citizens of Puerto Rico to be admitted to the Union as a fully sovereign state.’”

Taken together these two recitals constitute RNC recognition that U.S. citizens in each named territory have a unique history and relationship to the nation as a whole, providing the framework for informed democratic self-determination on a future political status for each jurisdiction.

In that context the RNC recognizes in the case of Puerto Rico that “just resolution” consistent with recognized future status options includes admission to the union as a state, based on self-determination regarding terms for admission prescribed by Congress.

What will constitute “just resolution” of status for the other three territories remains subject to federal-territorial consultation and informed democratic self-determination in each territory. However, a recent Al Jazeera article referred to Puerto Rico as the “elephant in the room” whenever deconstruction of America’s vestigial territorial empire is discussed.

That implies defining “just resolution” for smaller territories with U.S. citizen populations may become less encumbered by the history of difficult and controversial federal territorial law and policy in the 20th century. Once Congress offers and Puerto Rico accepts terms for the last large and populous U.S. territory to be admitted as a state, smaller territories will be enabled to define “just resolution” on a case by case basis.

Territorial status options other than statehood can include separate sovereign nationhood, without or without a treaty of free association, or continuation of territorial status under federal territorial law and policy.

The resolution adopted by the RNC does not include American Samoa, the fifth U.S. territory organized under federal territorial law. That respects the unique status of the native people in American Samoa as “nationals” but not citizens of the United States.

The U.S. nationals of American Samoa have not petitioned collectively as a people for birthright U.S. citizenship, in order to preserve their customs and traditions in the territory under local law. Even so, American Samoans individually are eligible and free to apply for U.S. citizenship as permitted under federal law to attain equal rights of national and state citizenship when living in the 50 states.

Historical RNC Repudiation of Race Based Discrimination Territories

It is also historical that the new GOP resolution expressly states “[T]he Republican National Committee repudiates the so-called Insular Cases.” That is a line of U.S. Supreme Court territorial law rulings allowing the U.S. Congress to adopt federal territorial law and policy that treats U.S. citizens in territories unequally compared to citizens in the 50 states.

The RNC resolution compares the Insular Cases to “ ..the same racist, segregationist legal doctrine as Plessy v. Ferguson.” Plessy v. Ferguson is a late 19th century post-Civil War ruling that institutionalized racial segregation in public schools was acceptable based on the “separate but equal doctrine.”

The Plessy v. Ferguson doctrine recognized equal rights under the U.S. Constitution of citizens segregated by race. That later would lead to reversal of Plessy in 1954, when the court ruled in Brown v. Board of Education that separate was not equal and segregation was a denial of citizenship rights.

Ironically, the Insular Cases still to this day actually permit Congress to enact federal territorial statutes under its power over territories that explicitly treat citizens in the territories less than equal, without even pretending to respect equality. That is because the original Insular Cases beginning in 1901 applied to territories where the U.S. Constitution did not apply directly or fully because Congress had not granted U.S. citizenship.

Since the Insular Cases held such territories were not “incorporated” into the union under the U.S. Constitution, the court allowed Congress to practice open inequality in the those territories that would not be allowed in the 50 states, or even U.S. citizen populated territories incorporated under the Constitution (e.g. Alaska, Hawaii, New Mexico, Arizona, Oklahoma). To make matters much worse, instead of being reversed like Plessy, in 1922 the Insular Cases were affirmed in the case of Puerto Rico even after U.S. citizenship was granted.

The application of the Insular Cases that originally applied to territories with non-citizen populations to U.S. citizens in Puerto Rico and other “unincorporated” territories has been characterized by former Reagan and Bush (41) appointed U.S. Attorney General Thornburgh as “anomalous and constitutionally flawed.” One U.S. Court of Appeals judge has called the Insular Cases worse than Plessy, not mere segregation based on a false doctrine of equality but openly “separate and unequal.”

What the judge meant was that Plessy’s “separate but equal” doctrine at least left the door open to argue in the future that the right to equality was being denied to citizens with a right to equal protection under the law. Under the Insular Cases the courts came right out and admitted that citizens in territories had no right to equality.

Differentiating Statutory and Constitutional Issues

For the RNC to finally sort out the perverse and irrational legalisms of the Insular Cases clears the way for Congress, the territories and the nation to sort out and differentiate between the federal territorial law and policy issues that define status options for the small territories.

Of course, paramount to “just resolution” of status for small territories is affirmation of the constitutional principles, rather than mere statutory policies, that must inform self-determination in each territory.

In that context it is imperative to understand that some of the inequality that exists between U.S. citizens in any territory and their fellow Americans in the states are not due to the Insular Cases or federal territorial law and policy statutes.

Rather, under the American system of constitutional federalism the most fundamental of all human rights principles embodied in the Declaration of Independence, Articles of Confederation, U.S. Constitution as well as the anti-colonial road map for territorial status resolution in the Northwest Ordinance, are not applicable or available in any U.S. territory.

Specifically, the most sacred of all rights, consent of the governed to the form of government and law we live under at the national level, is restricted by the U.S. Constitution exclusively to individuals who possess not only U.S national citizenship but also citizenship of a state of the union.

Thus, Article I, Section 2 limits the right to vote for representation in Congress to citizens and eligible voters in a state. Article II, Section 1 imposes the same limitation for voting on representation of each state in the Electoral College that chooses the President.

Without federal election voting rights of state citizenship there is no voice in the appointments to the federal judicial branch, including the U.S. Supreme Court. U.S. national “citizenship” without these rights is not true U.S. citizenship. Rather, like incorporation in the great anti-colonial tradition of the Northwest Ordinance, citizenship without a state of citizenship is a provisional status with inchoate promise of equality through statehood.

The due process and equal protection clause as well and the Bill of Rights and other protections for citizens in the Constitution limit the power of the government over people. But only consent of the governed through federal voting rights give the people power over the government.

Of course, it also must be recognized that government by consent is not a right without citizenship itself. The threshold right of guaranteed national and state citizenship based on birth or naturalization in a state is limited by the U.S. Constitution to the states of the union.

As confirmed by the U.S. Supreme Court in the 2016 Sanchez Valle ruling, all other citizenship is acquired by federal naturalization and citizenship statutes, as in the case of U.S. citizenship in the territories.

Defining RNC “Just Resolution” Principle

More broadly, then, in seeking “just resolution” of the political status of any territory, the only standard not repugnant to the principles of the Declaration of Independence and U.S. Constitution adopted to form a more perfect union is government by consent. For as every American knows, just exercise of government power can occur only by equal consent.

That is why the 23rd Amendment giving citizens in DC voting representation in the Electoral College failed to result in “just resolution” of that district’s disenfranchised status. In fact, the 23rd Amendment in a sense replicated the 3/5’s clause for apportionment of voting rights to slaves in Congressional elections but not the Electoral College, by treating citizens in D.C. as persons for purposes of consent in choosing the President but not in representation before Congress.

For the same reason Congress does not have the power and there is no compelling argument to amend the U.S. Constitution to give full equal rights and powers of consent to territories except upon admission to statehood. Thus, as long as the promise of U.S. citizenship is to continue in any territory, for small territories not deemed eligible by Congress for statehood incorporation into an existing state – with the approval of Congress and the state’s legislature – may be the only path to a “just resolution.”

Otherwise, periodic consent to remain a territory on terms permitted by Congress in the exercise of its territorial powers, or relinquishment of U.S national citizenship and transition to separate sovereignty, nationality and citizenship, are the options available to small territories for which Congress withholds consent of the nation to separate statehood.

In light of all these factors relevant to the determination of status options for each territory, by issuing its declaration calling for “just resolution” of territorial status the RNC truly made history in Nashville!