Puerto Rico and the U.S. Constitution

Exactly how does the U.S. Constitution apply in Puerto Rico? The question is simple, and the short answer is “Not much.”

The U.S. Supreme Court has ruled that the U.S. Constitution does not apply directly or uniformly in Puerto Rico in the same way it does in the States of the Union.

Fundamental rights

In fact, the Supreme Court said, nearly a century ago, only that “fundamental rights” apply in Puerto Rico. The court didn’t say exactly what those fundamental rights were. This has meant that Congress and/or the federal courts must determine when and how the Constitution and “fundamental rights” of U.S. citizenship apply in Puerto Rico.

Congress has exercised its power over territories in Puerto Rico by granting U.S. citizenship and establishing local territorial government to administer the civil affairs of the territory. Based on federal and local territorial statute law – as interpreted by federal and local courts – some “fundamental rights” defined in the U.S. Constitution have been recognized legally in Puerto Rico.

Unlike the States of the Union, in Puerto Rico federal law is supreme but not permanent. As a territory, Puerto Rico has no “states rights.” Nothing is beyond the reach of federal power. Federal territorial rule can continue, change or even end without any constitutionally guaranteed right or power of local consent.

Puerto Rico has a democratically elected governor and an elected territorial legislature. These, and other elements of territorial government, operate under federal territorial law. Still, the rights of national and state citizenship created by direct application of the U.S. Constitution in the States of the Union generally do not apply in Puerto Rico.

Constitutional Abstractions

The U.S. Supreme Court has often reaffirmed “fundamental rights” of U.S. citizenship under the U.S. Constitution and Bill of Rights in Puerto Rico. That seems like a promise to protect individuals and the people against federal and local government laws or actions that deprive any person of life or property without due process and equal protection of law.

However, the U.S. Supreme Court also decided that the right of U.S. citizens to a jury trial under the Bill of Rights does not apply in Puerto Rico. As a result, Puerto Rico has jury trials only as allowed by local and federal statutory laws. Jury trials in Puerto Rico are not required by direct application of the U.S. Constitution and Bill of Rights.

That was just one of many decisions that limit the application of the Constitution.

Legal Decisions

In contrast, the “fundamental right” to equal justice in the territory was upheld when the U.S. Supreme Court struck down a local Puerto Rico law which denied professional licenses to legal resident aliens. The decision said that this was discrimination, and not allowed in the territory.

That case favoring equal civil rights in the territory was one of numerous such federal and local court rulings that have declared local territorial government laws and actions contrary to “fundamental rights.” But in stark contrast, no federal law or action in Puerto Rico has ever been found by the U.S. Supreme Court to be an unconstitutional denial of a “fundamental right.”

So the occasional and selective use of vague “fundamental rights” to strike down local laws has not been matched by federal courts to strike down federal laws or actions that violate basic citizenship rights.

To the contrary, the U.S. Supreme Court has upheld federal law imposing federal payroll taxes for Social Security and Medicare in Puerto Rico, but providing federal Social Security and Medicare program benefits in the territory at a lower level than in States. That would violate “fundamental rights” and never be allowed in a State.

The Bottom Line

The Supreme Court left a lot of uncertainty when it decided in the Insular Cases that Puerto Rico was covered only in “fundamental rights” under the Constitution. Since those fundamental rights weren’t specified, they’ve been set in the courts and the legislature, and they can change.

Does Puerto Rico have to follow the U.S. Constitution? Yes. But the people of Puerto Rico are not guaranteed the rights outlined in the Constitution.