Por y Para Mi Gente: Puerto Rico-US Relations (Meditation 4)

Note

This is my fourth meditation on the documents of barbarism that solidified Puerto Rico’s standing as a US colony from 1898 to present (As Jóse Trías Monge writes, Puerto is the “oldest colony” in the world). You may find the first meditation here; the second meditation here; and the third meditation here.

The Aftermath of The Foraker Act (1900): The Insular Cases (1901)

In his insightful essay “Law as Eurocentric Enterprise,” Kenneth Nunn writes that “[l]aw organizes white society; then it helps maintain that society through both physical and ideological coercion.” Laws and the broader legal system, Nunn argues, order and maintain the U.S. as a White nationalist project through physical and ideological force. Consequently, White supremacy permeates U.S. law and order.

As we’ve seen, The Treaty of Paris (1898) and Foraker Act (1900) confirm Nunn’s claims. Each text legalizes—and so institutionalizes and systematizes—the racist ideologies of white supremacy and expansionism that men such as Theodore Roosevelt, Senator Lodge, Thomas Jefferson Farnham, and Rudyard Kipling championed, financed, and fought for. These racist laws bound mi gente, forcing them to live beneath and bear the White Man’s burden.

But these racist texts also left many social, economic, and political issues unresolved. Yes, the Foraker Act provided a White governance over mi gente while requiring them to pay taxes without representation. But even the Act’s entire name revealed that it was a temporary response to a range of issues: “Foraker Act, 31 Stat. 79 (1900), ‘An Act Temporarily to provide revenues and a civil government for Porto Rico, and for other purposes.’”

Questions about this temporary act’s constitutionality plagued it from birth. And within a year’s time, four cases about it reach the U.S. Supreme Court: DeLima v. Bidwell (1901); Downes v. Bidwell (1901); Dooley v. United States (1901); and Armstrong v. United States (1901). Collectively, these are called the Insular Cases.

Zooming in: Downes v. Bidwell (1901) [Part 1]

Rather than consider each case, I’ll focus on one—Downes v. Bidwell. This restricted concentration will help us see how the Court’s decision perpetuated the linking of U.S. Law and white supremacy. 

Downes required the Court to answer a seemingly straightforward question: Could Downes legally recover the $659.35 he paid the tax collector of the port of New York for oranges imported from Puerto Rico in November 1900? But matters weren’t straightforward. Downes’ tax payment occurred after the Foraker Act’s passage. Consequently, answering the primary question before the Court required answering a range of related questions about Puerto Rico’s relationship to the U.S. Justice Henry Brown, who offered the Court’s determination, hints at these subordinate questions in his opening remarks.

This case involves the question whether merchandise brought into the port of New York from Porto Rio since the passage of the Foraker act is exempt from duty, notwithstanding the 3d section of that act which requires the payment of “15 per centum of the duties which are required to be levied, collected, and paid upon like articles of merchandise imported from foreign countries.”

Despite the Treaty of Paris and Foraker Act, whether or not Puerto Rico was a foreign country remained a live question the Court had to adjudicate! Once this happened, the Court would need to determine which forms of taxation where Constitutional, given Puerto Rico’s legal status before the U.S.

Now the Court had just determined that Puerto Rico was not a foreign country. As Justice Brown writes:

In the case De Lima v. Bidwell just decided, we held that, upon the ratification of the treat of peace with Spain, Porto Rico ceased to be a foreign country, and became a territory of the United States, and that duties were no longer collectible upon merchandise brought from the island.

One question down. Yet this answer raises two new questions. Again Justice Brown:

We are now asked to hold that [Puerto Rico] became a part of the United States within that provision of the Constitution which declares that “all duties, imposts, and excises shall be uniform throughout the United States.” Art 1, § 8. If Port Rico be a part of the United States, the Foraker act imposing duties upon its products is unconstitutional, not only by reason of a violation of the uniformity clause, but by § 9 “vessels bound to or from one state” cannot be “obliged to enter, clear or pay duties in another.”

The case also involves the broader question whether the revenue clauses of the Constitution extend of their own force to our newly acquired territories. The Constitution itself does not answer this question.

The Foraker Act established a White nationalist government over Puerto Rico, which included the taxation of its inhabits and goods despite the former lacking representation in Congress. And in the rush to collect revenue from these non-White people as quickly as possible, the constructors of Foraker decided to let the white supremacy suffused litigation process determine their Act’s constitutionality.

Zooming in: Downes v. Bidwell (1901) [Part 2]

Given the Constitution’s silence on whether or not its revenue clauses extends to acquired territories like Puerto Rico, Justice Brown considers whether the Constitution itself implies that this clause only applies to states, or if it applies to states and territories. I quote him at length.

[I]t can nowhere be inferred that the territories were considered a part of the United States. The Constitution was created by the people of the United States, as a union of states, to be governed solely by representatives of the states; and even the provision relied upon here, that all duties, imposts, and excises shall be uniform “throughout the United States,” is explained by subsequent provisions of the Constitution, that “no tax or duty shall be laid on articles exported from any state,” and no “preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another.” In short, the Constitution deals with states, their people, and their representatives.

Justice Browns conclusion is clear: Although the Constitution doesn’t explicitly specify if the revenue clause applies to territories, it does sufficiently specify that the Constitution itself applies only to states, their people, and their representatives. Since Puerto Rico is not a state, the Constitution does not apply to it or its inhabitants (to say nothing of the non-existent representatives). Therefore, neither does the Constitution’s revenue clause.

But here we must be cautious. For although Justice Brown has ruled out that the Constitution directly and in-and-of-itself applies to U.S. territories, he hasn’t specified if there is no sense in which the Constitution does so. Perhaps it indirectly applies to these territories. This option raises a new question: Is there a part of the U.S. government the Constitution directly oversees that could extend the Constitution’s jurisdiction over U.S. territories, thus rendering them indirectly under its jurisdiction?

The Court recognizes this question and answers it. Justice Brown writes:

It is sufficient to say that….Congress has been consistent in recognizing the difference between the states and territories under the Constitution…

Indeed, the practical interpretation put by Congress upon the Constitution has been long continued and uniform to the effect that the Constitution is applicable to territories acquired by purchase or conquest, only when and so far as Congress shall so direct.

Congress—and Congress alone—can extend the Constitution’s jurisdiction so that it indirectly apply to U.S. territories. This conclusion echoes the Treaty of Paris’s ninth Article: “The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.” Legal threads are coming together.

Zooming in: Downes v. Bidwell (1901) [Part 3]

As the Court pulls together the legal threads of Puerto Rico’s relationship to the U.S., it used a clause that should stop a reader in her tracks. Congress can apply the Constitution “to territories acquired by purchase or conquest.”

The Supreme Court had long recognized the U.S. as a White Nationalist conquering Empire. Justice Brown unflinching says as much in Downes, harking back to Chief Justice John Marshall’s language from Johnson v. McIntosh (1823), a central case in legal precedent regarding the limits of Indigenous land rights. Describing the U.S.’s power to acquire territories, Justice Brown writes:

We are also of opinion that the power to acquire territory by treaty implies, not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be in what Chief Justice Marshall termed the “American Empire.” There seems to be no middle ground between this position and the doctrine that if their inhabitants do not become, immediately upon annexation, citizens of the United States, their children thereafter born, whether savages or civilized, are such, and entitled to all the rights, privileges and immunities of citizens. If such be their status, the consequences will be extremely serious. Indeed, it is doubtful if Congress would ever assent to the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits, traditions, and modes of life, shall become at once citizens of the United States.

From its conception, the U.S. was an expansionist White Nationalist empire. And its Congress and Supreme Court recognized this required careful legal engagement with non-Whites. Hence, both endorsed the 1790 Naturalization Act, which declared only white people could become U.S. citizens, Constitutional and necessary for the White Empire’s survival. As Justice Brown notes, Congress wanted complete control over what rights, privileges, and immunities savages—a centuries old racist trope designating non-Whites—had within the U.S. White privilege must be protected, it must be policed. It cannot fall prey, Justice Brown implies, to those racial others—those foreigners—with different “habits, traditions, and modes of life,” for these are what perpetuate the White Empire’s Whiteness into the future. 

To hammer home these racialized points, Justice Brown provides the following extended quotation from Chief Justice Marshall’s decision in Johnson v. McIntosh.

The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually they are incorporated with the victorious nation and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporating is practicable humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed equitably as the old; and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections and united by force to strangers.

When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him; and he cannot neglect them without injury to his fame and hazard to his power.

Racial conquest, always attuned to White public opinion, requires either assimilation or the safe governing of those on the non-White side of racial apartheid. This is how the white empire maintains its health and power. Lest you think I’m reading into this passage, consider Justice Brown’s summary reading of it.

It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws, and customs of the people, and from differences in soil, climate, and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native Indians.

Groups, habits, laws, customs, soil, climate, production—each is racialized in U.S. law and history. And in an effort to determine how to relate to the non-Whites of Puerto Rico, Justice Brown resorts to Federal Indian law and its racist treatment of Indigenous habits, customs, and production. Of course, he acknowledged that the U.S. needs a novel conceptual extension of its White nationalist Empire’s approach to conquest, for it is seeking to enact the White Man’s Burden in non-White territories overseas.

Zooming in: Downes v. Bidwell (1901) [Part 4]

Sensing the need to offer a positive account of Puerto Rico-US relations, Justice Brown turns to consider what protections Puerto Rico’s inhabits do have. While they wait for Congress’s determinations, these people should know that “Even if regarded as aliens, they are entitled under the principles of the Constitution to be protected in life, liberty, and property.” As Justice Brown notes, despite the Chinese Exclusion Act (1882), “This has been frequently held by this court in respect to the Chinese, even when aliens, not possessed of the political rights of citizens of the United States.”

The mentioning of the Chinese is telling. The Chinese Exclusion Act was a racist document that largely justified barring Chinese persons from entering the U.S. because they were deemed non-White. Twice, then, Justice Brown has highlighted the non-White nature of Puerto Rico’s “native inhabitants” by comparing them to Indigenous peoples and the Chinese. Maintaining the purity of Whiteness motivates these comparisons. And it requires legal fine tuning that ensures the White Empire’s organizational integrity. As Nunn argues, “[l]aw organizes white society; then it helps maintain that society through both physical and ideological coercion.”

Justice Brown makes these very points at the end of his decision. I quote him in full.

Patriotic and intelligent men may differ widely as to the desirableness of this or that acquisition, but this is solely a political question. We can only consider this aspect of the case so far as to say that no construction of the Constitution should be adopted which would prevent Congress from considering each case upon its merits, unless the language of the instrument imperatively demand it. A false step at this time might be fatal to the development of what Chief Justice Marshall called the American Empire. Choice in some cases, the natural gravitation of small bodies towards large ones in others, the result of successful war still in others, may bring about conditions which would render the annexation of distant possessions desirable. If those possessions are inhabited by alien races, differing from us in religion, custom, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible; and the question at once arises whether larger concessions ought not to be made for a time, that ultimately our own theories may be carried out, and the blessings of a free government under the Constitution extended them. We decline to hold that there is anything in the Constitution to forbid such action.

We are therefore of opinion that the island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution; that the Foraker act is constitutional, so far as it imposes duties upon imports from such island, and that the plaintiff cannot recover back the duties exacted in this case.

Having noted the potentially grave danger the White Empire faces by receiving non-White Puerto Ricans, Justice Brown stresses the differences between Puerto Ricans and Anglo-Saxons. As Albert Memmi and Robert A. Williams, Jr. note, such emphasis on racial difference is a standard trope in racist documents of colonial empires. So too is benevolent racism, depicted here in the willingness to bestow “the blessings of a free government under the Constitution” to Puerto Rico’s native inhabitants—the non-Whites.

Zooming in: Downes v. Bidwell (1901) [Part 5]

Though Justice Brown penned the Court’s conclusion and judgment, Justice Edward White wrote a concurring judgment, which Justice George Shiras and Justice Joseph McKena affirmed. These emphasized the importance of assimilation to maintain the White Empire.

It must follow, therefore, that where a treaty contains no conditions for incorporation, and, above all, where it not only has no such conditions, but expressly provides to the contrary, that incorporation does not arise until in the wisdom of Congress it is deemed that that acquired territory has reached that state where it is proper that it should enter into and from a part of the American family.

The Treaty of Paris did not set the conditions of Puerto Rico’s incorporation into the U.S. It left that task to Congress. As Justice White argues, it is up to Congress to wisely discern if and when any acquired territory should “enter into and form a part of the American family.” This switch to the metaphor of family is striking. Fit within the White Empire, it seems, is akin to fit within a family. Both require levels of assimilation into the social unit’s patterns of relating. Until such assimilation happens, Congress, the branch of government that oversees incorporation into the White Empire, may keep non-White inhabitants under its power without adopting them into the family.

How to convey this legal status of simultaneous attachment and detachment? Justice White offers a haunting proposal.

The result of what has been said is that while in an international sense Porto Rico was not a foreign country, since it was subject to the sovereignty of and was owned by the United States, it was foreign to the United States in a domestic sense, because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession.

Puerto Rico is foreign to the U.S.—but “in a domestic sense.” This nonsensical phraseology shows just how vexing the problem of the color-line proved to be at the twentieth-century’s start. To repeat Du Bois’s dictum: “The problem of the Twentieth Century is the problem of the color-line.”

Zooming in: Downes v. Bidwell (1901) [Part 6]

The Court’s decision in Downes was not unanimous. Justice John Harlan dissented. And the reasons he offers for his departure demand attention, for they challenge the assimilationist reasoning and narratives his colleagues proposed.

Justice Harlan begins by quoting the racial assimilationism in Justice Brown’s decision. Justice Harlan writes:

In the [preceding opinion] it is suggested that conditions may arise when the annexation of distant possessions may be desirable. ‘If,’ says the opinion, ‘those possession are inhabited by alien races, differencing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible; and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out, and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action.’

Justice Harlan denies that the Constitution allows the holding of “alien races” from entrance into the U.S. until they are sufficiently assimilable. And like his counterparts, he speaks in a race-conscious, White normative key.

Whether a particular race will or will not assimilate with our people, and whether they can or cannot with safety to our institutions be brought within the operation of the Constitution, is a matter to be thought of when it is proposed to acquire their territory by treaty….

Questions of racial assimilation and the safety of the White Empire must come before the acquiring of a non-White people through treaty, Justice Harlan contends, not after that acquisition. And he pens this dissent as one who, in his dissenting decision in Plessy v. Ferguson, had written thus of Whites in the U.S.:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.

Perhaps here, too, Justice Harlan believes his colleagues threaten the white race’s domination within the U.S. Empire because they’re not holding fast to “the principles of constitutional liberty.”

Zooming in: Downes v. Bidwell (1901) [Part 7]

Fear for the stability and permanence of the whiteness of the U.S. as a White nationalist Empire course through Downes affirmative judgments. Apart from Justice Harlan, all the Court’s Justices defend reasoning that ensures the interpretation of Constitutional law does not threaten the Empire’s institutional whiteness.  For them, laws and their maker, Congress, must organize and protect white society.

Notice where these forms of individual and institutional racism leave mi gente. Puerto Ricans are taxed without representation; foreign, but in a domestic sense; the spoils of racial conquest which are too racially different to be welcomed into the U.S.’s majority White family. All this racism enables the mass exploitation and oppression of mi gente. And all of it is codified, inscribed in the legal discourse—the racist native tongue—of the United States.

I’m reminded of Alexis De Tocqueville’s reflection on the U.S’s genocidal Removal Era: It would be “impossible to destroy men (sic.) with more respect for the laws of humanity.”