Por y Para Mi Gente: Puerto Rico-US Relations (Meditation 6)

Note

This is my sixth 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 here, the third here, the fourth here, and the fifth here.

Balzac v. People of Porto Rico (1922): Brief Background

On April 16 and April 23, 1918, Jesus M. Balzac published articles in El Baluarte, a daily paper he edited and published in Arecibo, Puerto Rico. Those Balzac targeted eventually filed two libel suits against him, arguing that the articles contained false claims that damaged their reputation. At that time, Puerto Rico’s criminal law deemed libel crimes as misdemeanors, and it only granted a jury trial in felony cases.

Balzac challenged Puerto Rico’s law, arguing that the Sixth Amendment to the U.S. Constitution entitled him to a jury even in misdemeanor cases; and that the language of the alleged libels was fair comment that the First Amendment protected. The local court overruled Balzac’s claims and convicted him of the libel charges, sentencing him to several months of imprisonment in the district jail, and to paying the costs of this imprisonment.

Balzac appealed his case to Puerto Rico’s Supreme Court. The Court affirmed the previous judgments. Balzac responded by appealing his case to the U.S. Supreme Court, which determined that it had jurisdiction over appeals form Puerto Rico’s Supreme Court.

Balzac v. People of Porto Rico (1922): Part I

Chief Justice Taft penned the Court’s opinion. He started by considering if the Sixth Amendment applied to Balzac and the rest of Puerto Rico’s inhabitants. Justice Taft writes:

It is well settled that these provisions for jury trial in criminal and civil cases apply to the Territories of the United States…But it is just as clearly settled that they do not apply to territory belonging to the United States which has not been incorporated into the Union… It was further settled in Downes v. Bidwell, 182 U. S. 244, and confirmed by Dorr v. United States, 195 U. S. 138, that neither the Philippines nor Porto Rico was territory which had been incorporated in the Union or become a part of the United States, as distinguished from merely belonging to it; and that the acts giving temporary governments to the Philippines, 32 Stat. 691, and to Porto Rico, 31 Stat. 77, had no such effect. The Insular Cases revealed much diversity of opinion in this Court as to the constitutional status of the territory acquired by the Treaty of Paris ending the Spanish War, but the Dorr Case shows that the opinion of Mr. Justice White of the majority, in Downes v. Bidwell, has become the settled law of the court. The conclusion of this court in the Dorr Case, 195 U. S. 149, was as follows:

“We conclude that the power to govern territory, implied in the right to acquire it, and given to Congress in the Constitution in article 4, § 3, to whatever other limitations it may be subject, the extent of which must be decided as questions arise, does not require that body to enact for ceded territory, not made part of the United States by congressional action, a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its own force, carry such right to territory so situated.”

Though Justice Henry Brown penned the main decision in Downes v. Bidwell, subsequent cases established Justice Edward White’s concurring opinion as U.S. law. And Justice White concluded that certain legal privileges did not apply to unincorporated Puerto Rico’s inhabitants. These non-Whites did not even have formal legal White privilege.

But Justice White’s opinion came before the Jones Act (1917), which granted Puerto Ricans a limited form of U.S. “citizenship.” Did this or similar changes in Puerto Rico-U.S. relations since Downes v. Bidwell render Justice White’s opinion immaterial to this case?

The Court appreciated this question. And having noted the change in Puerto Ricans’ citizenship status, emphasized the limited nature of that status. Again Justice Taft: 

In Porto Rico, however, the Porto Rican can not insist upon the right of trial by jury, except as his own representatives in his legislature shall confer it on him. The citizen of the United States living in Porto Rico cannot there enjoy a right of trial by jury under the federal Constitution, any more than the Porto Rican. It is locality that is determinative of the application of the Constitution, in such matters as judicial procedure, and not the status of the people who live in it.

The problem of the color-line has resurfaced. Puerto Rico and its inhabitants dwell in the non-White side of a racial apartheid State. They remain foreign in a domestic sense. Because Congress has not acted to incorporate them, they do not have the Constitutional right to a trial by jury. Nor would any other U.S. citizen who falls under the islands jurisdiction. Racial apartheid suffuses Puerto Rico-U.S. relations.

Justice Taft stresses the racialized point in an extended passage dripping with benevolent racism. He writes:

The jury system needs citizens trained to the exercise of the responsibilities of jurors. In common-law countries centuries of tradition have prepared a conception of the impartial attitude jurors must assume. The jury system postulates a conscious duty of participation in the machinery of justice which it is hard for people not brought up in fundamentally popular government at once to acquire. One of its greatest benefits is in the security it gives the people that they, as jurors, actual or possible, being part of the judicial system of the country, can prevent its arbitrary use or abuse. Congress has thought that a people like the Filipinos, or the Porto Ricans, trained to a complete judicial system which knows no juries, living in compact and ancient communities, with definitely formed customs and political conceptions, should be permitted themselves to determine how far they wish to adopt this institution of Anglo-Saxon origin, and when. Hence the care with which… the United States has been liberal in granting to the islands acquired by the Treaty of Paris most of the American constitutional guaranties, but has been sedulous to avoid forcing a jury system on a Spanish and civil law country until it desired it. We cannot find any intention to depart from this policy in making Porto Ricans American citizens, explained as this is by the desire to put them as individuals on an exact equality with citizens from the American homeland, to secure them more certain protection against the world, and to give them an opportunity, should they desire, to move into the United States proper, and there without naturalization to enjoy all political and other rights.

See the emphasis on Puerto Ricans’ racial difference? Remember this racist theme in Downes v. Bidwell? Here it is again. And here, too, we find the U.S. presented as a benevolent White empire, liberally granting those it conquered and placed under the White Man’s burden “most of the American constitutional guaranties.” Sure, they’re taxed without representation and don’t have trails by jury. But, the Court reasons, it dare not be imperialistic or paternalistic and force Anglo-Saxon laws upon non-Anglos until they desire it. If they want full citizenship, let them merely “move into the United States proper,” the Justices say. The racialization of land and the linking of land to racial privilege is stunning.

Balzac v. People of Porto Rico (1922): Part II

Justice Taft concluded the Court’s decision thus: because they Congress had not incorporated Puerto Rico into the U.S., “the judgments of the Supreme Court of Porto Rico are affirmed.” Balzac the U.S. citizen did not have access to all the Constitutional rights of full U.S. citizens. This non-White man had to face the non-White “local” laws governing Arecibo, Puerto Rico.

As I reflect on this decision, I recall Rubin Francis Weston’s observation about the linking of Puerto Rico-U.S. relations to racial apartheid on the mainland. Weston writes:

Those who advocated overseas expansion faced this dilemma: What kind of relationship would the new peoples have to the body politic? Was it to be the relationship of the Reconstruction period, an attempt at political equality for dissimilar races, or was it to be the Southern “counterrevolutionary” point of view which denied the basic American constitutional rights to people of color? The actions of the federal government during the imperial period and the relegation of the Negro to a status of second-class citizenship indicated that the Southern point of view would prevail. The racism which caused the relegation of the Negro to a status of inferiority was to be applied to the overseas possessions of the United States.

The Court’s decision in Balzac codifies another, albeit subtler, form of racial apartheid into U.S. Law.

And this brings me to another quotation. In 2004, Igartua De La Rosa challenged the Constitutionality of the prohibition of Puerto Ricans living on the island from voting for their President or Vice-President. Though the courts denied De La Rosa’s claim, Federal District Judge Juan Torruella offered a dissenting opinion. Judge Torruella gets the last word in this meditation.

If on the one hand it can be argued that Puerto Rico and its “citizens” are better off materially than they were when the island was invaded 106 years ago, the undeniable fact is that it has been, and continues to be, at the basement of American hegemony…

The total default by the United States of its constitutional and international obligations with respect to the citizens of the United States residing in Puerto Rico, release me from any obligation to give stare decisis recognition to our prior decisions… “Our Constitution…neither knows nor tolerates classes among citizens,” citing Plessy, 163 U.S. at 559 (Harlan, J. dissenting), and yet what we have in this case is without a question the creation and perpetuation of a class sub-standard, second-class citizens, with less rights than those enjoyed by the main class of U.S. citizens.