The average American usually gives little thought to Puerto Rico. We are instead lambasted with headlines that grab most of our attention. The War in Ukraine. Rising inflation. Twitter and Elon Musk. These are topics that affect us in one way or another. Puerto Rico is an island a little over two thousand miles from Chicago, stretching 30 by 50 miles in length. What consequences could it possibly share with the US?
It turns out that the consequences are very much the same. Every now and then, cases are filed that involve a person or entity of Puerto Rico. And as it turns out, it is the U.S. government that always has the upper hand.
Three weeks ago, there was litigation between a disabled Puerto Rican and the U.S. concerning the man’s supplemental security income benefits. He had received disability benefits for much of his life. One day, he decided to return to Puerto Rico, and the United States government sued the man, essentially for fraud.
Since he was born in Puerto Rico, he did not have the right to supplemental security. Since Puerto Ricans do not pay most federal taxes, the U.S. sued for all back payments, totaling $28,081. Ignoring the fact that the man had lived in the US his entire life, it is true that Puerto Ricans do not pay taxes as a local would, but that argument only stifles the real question: Who should dictate how Puerto Rico should rule its own people?
It turns out that question was brought up by one of the most conservative judges on the Supreme Court.
If we cherish self-rule, autonomy, democracy and civil rights, it’s hypocritical to keep a population of more than three million in our own grips of power, forever subjected to foreign rule.
Justice Neil Gorsuch joined the majority 8-1 ruling in favor of the government, but his opinion was anything but concurring. He single-handedly became the most vocal critic of U.S. colonialism in the history of the court.
It’s almost as if what Gorsuch wrote was a dissenting opinion. His leading paragraph is as follows:
“A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”
We are now at a precipice. A Supreme Court Justice has declared the U.S. has no legal basis to rule Puerto Rico. It may turn out after all that the originalists – people who interpret the Constitution with faithfulness, as the founding fathers would see fit – may be on to something revolutionary. There is a specter haunting the U.S., and that is Neil Gorsuch.
But you may be asking – what are the Insular Cases?
These were cases that laid down the foundation for U.S. dominance over Puerto Rico in the aftermath of the Spanish-American War. Once the U.S. won the war, legislation had to be passed to simplify the transfer of power and deal with its new inhabitants, which also included the Philippines and Guam. The most notorious of these is Downes v. Bidwell, which ruled that Puerto Rico was not entitled to the same rights under the U.S. Constitution.
In the history of the Supreme Court, not even liberal superstars like Breyer, Ginsberg, and Kagan have dared to take on the Insular Cases. Gorsuch blatantly calls the Insular Cases unconstitutional. The only reason Gorsuch joined the majority was because the case itself didn’t even mention the possibility of overthrowing the Insular Cases.
A Supreme Court Justice has declared the U.S. has no legal basis to rule Puerto Rico.
Sometimes, like a drug addict in the depths of a debilitating addiction, the hardest part of change is the acknowledgment that there is a problem. The sheer logic of Justice Gorsuch’s originalist theory has opened the door for more discussion of this often-ignored subject. Maybe now the other conservative justices will join their fellow Constitutionalist in finally acknowledging that the U.S., a bastion of democracy, is in possession of a modern-day colony.
If we as Americans cherish self-rule, autonomy, democracy and civil rights at home and abroad, as in the case of Ukraine, it’s hypocritical to keep a population of more than three million in our own grips of power, forever subjected to foreign rule.
Justice Gorsuch leaves us with one of the most thought-provoking statements in the history of Supreme Court rulings.
“Because no party asks us to overrule the Insular Cases to resolve today’s dispute, I join the Court’s opinion. But the time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them. We should follow Justice Harlan and settle this question right. Our fellow Americans in Puerto Rico deserve no less.”
Puerto Rico deserves freedom.