The insular cases: The establishment of a regime of political apartheid

University of Pennsylvania Journal of International Economic Law

Volumn 29, Issue 2, 2007, Pages 283-347

  Torruella, Juan R ^a  

^a United States Court of Appeals for the First Circuit ^*

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EID: 40949147873     PISSN: 10867872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (348)

1. "What's in a name? That which we call a rose / By any other name would smell as sweet." WILLIAM SHAKESPEARE, ROMEO AND JULIET act 2, sc. 1 (Richard Hosley ed., Yale Univ. Press 1964) (1917).
2. CARL VON CLAUSEWITZ, ON WAR, bk. 8, ch. 6B, at 731 (Michael Howard & Peter Paret eds. & trans., Alfred A. Knopf 1993) (1832).
3. See 2 MAO TSE-TUNG, On Protracted War, in SELECTED WORKS OF MAO TSE-TUNG 153 (2d prtg. 1967) ("[P]olitics is war without bloodshed while war is politics with bloodshed.").
4. See generally De Lima v. Bidwell, 182 U.S. 1 (1901) (holding that once Puerto Rico was acquired by the United States through cession from Spain it was not a "foreign country" within the meaning of tariff laws);
5. Goetze v. United States, 182 U.S. 221 (1901) (holding that Puerto Rico and Hawaii were not foreign countries within the meaning of tariff laws);
6. Dooley v. United States, 182 U.S. 222 (1901) (holding that the right of the President to exact duties on imports into the United States from Puerto Rico ceased with the ratification of the peace treaty between the United States and Spain);
7. Armstrong v. United States, 182 U.S. 243 (1901) (invalidating tariffs imposed on goods exported from the United States to Puerto Rico after the ratification of the treaty between the United States and Spain);
8. Downes v. Bidwell, 182 U.S. 244 (1901) (holding that Puerto Rico did not become a part of the United States within the meaning of Article I, section 8 of the Constitution);
9. Huus v. N.Y. & P.R. S.S. Co., 182 U.S. 392 (1901) (holding that a vessel engaged in trade between Puerto Rico and New York is engaged in the coasting trade and not foreign trade).
10. Of these, Balzac v. Porto Rico, 258 U.S. 298 (1922), holding that because Puerto Rico had not been incorporated into the United States - notwithstanding the granting of U.S. citizenship to its residents in 1917 - a U.S. citizen living in Puerto Rico did not have the right to trial by jury, is the most relevant to our discussion.
11. See also Rassmussen v. United States, 197 U.S. 516 (1905) (holding that Alaska was incorporated into the United States by the treaty of acquisition from Russia and thus the Constitution applied therein);
12. Dorr v. United States, 195 U.S. 138 (1904) (holding that the Philippines were not incorporated into the United States by the treaty of acquisition from Spain and thus there was no constitutional right to trial by jury therein);
13. Gonzales v. Williams, 192 U.S. 1 (1904) (holding that after annexation from Spain a resident of Puerto Rico was not an "alien immigrant" but a U.S. national);
14. Hawaii v. Mankichi, 190 U.S. 197 (1903) (holding that Hawaii did not become incorporated into the United States until Congress enacted the Newlands Resolution);
15. cf. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (holding that the Fourth Amendment does not apply to a search by U.S. authorities of a Mexican citizen's home in Mexico);
16. Harris v. Rosario, 446 U.S. 651 (1980) (finding no Fifth Amendment violation by reason of U.S. citizens in Puerto Rico receiving disparate treatment in the granting of Social Security benefits);
17. Califano v. Torres, 435 U.S. 1 (1978) (same as to Supplemental Security Income benefits).
18. But see Reid v. Covert, 354 U.S. 1 (1957) (holding that civilian dependents of members of the armed forces who are overseas in times of peace have a constitutional right to a jury trial and cannot be tried by military tribunals for capital offenses).
19. To the extent that the Insular Cases stand for the principle that "the Constitution does not follow the flag,"
20. see also Boumediene v. Bush, 476 F.3d 981 (D.C. Or. 2007), cert. granted, 127 S. Ct. 3078 (2007) (upholding a statute which strips federal courts of jurisdiction over habeas petitions of aliens held at Guantánamo Bay).
21. But see Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (holding that Common Article 3 of the Geneva Conventions requires that an alien held at Guantánamo Bay be tried by a "regularly constituted court" and not a special military tribunal created by the Detainee Treatment Act);
22. cf. Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (holding that Congress had authorized the President to detain citizen enemy combatants at Guantánamo Bay, but that these combatants are entitled to a meaningful opportunity to challenge the factual basis of their detention).
23. When the Insular Cases were decided, a political humorist of the time quipped, "[N]o matter whether th' constitution follows th' flag or not, th' supreme coort follows th' iliction returns." FINLEY PETER DUNNE, MR. DOOLEY'S OPINIONS 26 (1901).
24. If one accepts the validity of Clausewitz's theorem regarding the extension of politics and war, and my observation regarding politics and constitutional law, one is led to the inevitable conclusion that the Insular Cases in effect constitute an extension of the politics of the Spanish-American War, something that will become more apparent when these cases are discussed in more detail, infra.
25. 163 U.S. 537 (1896), overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954).
26. See JUAN R. TORRUELLA, THE SUPREME COURT AND PUERTO RICO: THE DOCTRINE OF SEPARATE AND UNEQUAL 117-265 (1985) (arguing that the colonial relationship between the United States and Puerto Rico, which was approved by the Supreme Court in the Insular Cases, created unrest and had lasting negative socioeconomic effects in Puerto Rico).
27. See, e.g., Balzac v. Porto Rico, 258 U.S. 298 (1922) (holding that because Puerto Rico had not been incorporated into the United States, a U.S. citizen living in Puerto Rico did not have the right to trial by jury).
28. See, e.g., Reid v. Covert, 354 U.S. 1 (1957) (holding that a U.S. citizen accompanying her husband who was in the armed forces overseas cannot be tried by military court-martial, but is guaranteed indictment by a grand jury and a civil trial before a petit jury, as required by the Constitution).
29. See generally FRANK FREIDEL, THE SPLENDID LITTLE WAR (1958) (noting that after Puerto Rico was conquered by American troops many Puerto Ricans expressed joy at the prospect of joining the United States);
30. IVAN MUSICANT, EMPIRE BY DEFAULT: THE SPANISH-AMERICAN WAR AND THE DAWN OF THE AMERICAN CENTURY (1998) (discussing the conscious and strategic measures taken by the United States in expanding through Hawaii, the Philippines, Puerto Rico, Guam, the Panama Canal, and Guantánamo Bay);
31. BARTHOLOMEW H. SPARROW, THE INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE (2006) (arguing that the Supreme Court gave disparate constitutional treatment to inhabitants of United States territories).
32. See JAMES E. KERR, THE INSULAR CASES: THE ROLE OF THE JUDICIARY IN AMERICAN EXPANSIONISM (1982) (discussing the Supreme Court's creation of the expansionist doctrine that Congress, not the Court, should determine when an acquired territory becomes part of the union and receives the full benefits of the Constitution);
33. WILLIAM L. LANGER, THE DIPLOMACY OF IMPERIALISM 1890-1902 (2d ed. 1951) (characterizing the period between 1890 and 1902 as dominated by imperialism and competition for territory);
34. JULIUS W. PRATT, EXPANSIONISTS OF 1898: THE ACQUISITION OF HAWAII AND THE SPANISH ISLANDS (Peter Smith 1959) (1936) (discussing the various motives, techniques, and propaganda employed by politicians, journalists, the church, and the military to influence the expansion of imperialism in 1898 that ultimately resulted in the American acquisition of Hawaii, Puerto Rico, and the Philippines).
35. See Northwest Territory Ordinance of 1787, 1 Stat. 51 (1789) (providing the process by which territories west of the Ohio River would be admitted as states into the union).
36. Treaty of Peace, Friendship, Limits, and Settlement Between the United States of America and The United Mexican States, U.S.-Mex., Feb. 2, 1848, 9 Stat. 922 (ending the armed conflict between the United States and Mexico).
37. The Gadsden Purchase in 1853, leading to minor alterations of our border with Mexico, still remained to be completed.
38. See generally PRATT, supra note 13 (discussing the influence of expansionists concerned with strengthening U.S. trade prospects, like James G. Blaine, Benjamin Harrison, and John W. Foster, on the decision to pursue territory in the Caribbean).
39. Katharine Lee Bates, America the Beautiful, reprinted in AMERICA THE BEAUTIFUL AND OTHER POEMS 3-4 (1911) (usually sung as a hymn to the tune of Materna, by Samuel A. Ward).
40. A phrase taken from a letter to Theodore Roosevelt, the quintessential exponent of manifest destiny expansion, by the United States Ambassador to Great Britain shortly after the war ended: "It has been a splendid little war; begun with the highest motives, carried on with magnificent intelligence and spirit, favoured by that fortune which loves the brave." Letter from John Hay to Theodore Roosevelt, reproduced in HUGH THOMAS, CUBA: THE PURSUIT OF FREEDOM 404 (1971).
41. As first used by Chief Justice Marshall in Loughborough v. Blake, 18 U.S. 317, 319 (1820), and again by Justice Brown in Downes v. Bidwell, 182 U.S. 244, 286 (1901).
42. See generally MUSICANT, supra note 12 (providing a comprehensive history of the Spanish-American War of 1898 and its contributions to the emergence of the United States as a world power).
43. Acquired from Spain as a result of the Treaty of Paris which ended the war.
44. See Treaty of Peace between the United States of America and the Kingdom of Spain, U.S.-Spain, Dec. 10, 1898, 30 Stat. 1754 (detailing the cession of various Spanish territories to the United States).
45. Puerto Rico is approximately 850 miles from Florida, and the Philippine Islands and Guam are approximately 7,000 and 5,000 miles from the U.S. west coast, respectively.
46. See Treaty Concerning the Cession of the Russian Possessions in North America by His Majesty the Emperor of all the Russias to the United States of America, U.S.-Russ., Mar. 30, 1867, 15 Stat. 539.
47. See Joint Resolution to Provide for Annexing the Hawaiian Islands to the United States, Res. No. 55, 55th Cong., 30 Stat. 750 (1898).
48. In the case of Hawaii not only was there a large U.S. expatriate population, but it was instrumental, as in the case of Texas, in fomenting the local revolution that led to intervention and eventual annexation by the United States.
49. See PRATT, supra note 13, at 74-109 (outlining the events in January 1893 that comprised the "revolution" in Hawaii). Alaska, of course, was almost empty of any significant population when acquired by the United States.
50. As an example, the value of goods sent to Puerto Rico from the United States increased from $2.8 million in 1892 to $8.7 million in 1901, making it the fifth largest market for U.S. goods in Latin America and twenty-seventh in the world, a ranking which went to fourth largest in Latin America and eleventh in the world by 1910. SPARROW, supra note 12, at 65. In 2006, the value of goods shipped to Puerto Rico from the United States had increased to $21.98 billion, making Puerto Rico the second ranking U.S. market in Latin America and twelfth in the world. DEP'T OF COMMERCE, PUBL'N NO. FT895/06, U.S. TRADE WITH PUERTO RICO AND U.S. POSSESSIONS 2006: FOREIGN TRADE STATISTICS tbl. 1, at A-1 (Mar. 2007).
51. See, e.g., A. T. MAHAN, THE INFLUENCE OF SEA POWER UPON HISTORY, 1660- 1783, at 83 (13th ed. 1897) ("Colonies ... afford ... the surest means of supporting abroad the sea power of a country.").
52. See, e.g., Elmer B. Adams, The Causes and Results of Our War with Spain from a Legal Stand-Point, 8 YALE L.J. 119 (1898) (arguing that the acquisition of territories is undemocratic, yet objecting to statehood for acquired territories on policy grounds);
53. John Kimberly Beach, Constitutional Expansion, 8 YALE L.J. 225, 234 (1899) (evaluating the constitutionality of U.S. occupation, acquisition, and control of the Philippines and concluding that acquisition is a "duty" of the United States, in the name of "the restoration of order and security to life and property in the Philippines.");
54. William Bradford Bosley, The Constitutional Requirement of Uniformity in Duties, Imposts and Excises, 9 YALE L.J. 164 (1900) (examining Congress's power to levy duties, imposts, and excises on the territories newly acquired from Spain for local, not national, purposes, and arguing that while Congress can levy taxes for local purposes, the Constitution requires that Congress also levy taxes on the Territories for national purposes);
55. William W. Howe, The Law of Our New Possessions, 9 YALE L.J. 379 (1900) (examining the evolution of Spanish laws that governed Louisiana before U.S. acquisition and suggested that the civil codes of Puerto Rico, Guam, and the Philippines should not be disturbed, while their criminal legal systems should be modified);
56. Paul R. Shipman, Webster on the Territories, 9 YALE L.J. 185, 206 (1900) (evaluating Webster's opinions on the acquisition of Puerto Rico and the Philippines, referring to the territories as "incorrigibles," and suggesting that the Constitution be modified if necessary to control the populations in the territories);
57. Edward B. Whitney, The Porto Rico Tariffs of 1899 and 1900, 9 YALE L.J. 297 (1900) (evaluating the right of the U.S. government to levy duties on trade with Puerto Rico and concluding that Congress must impose import taxes on Puerto Rico).
58. TORRUELLA, supra note 9.
59. See, e.g., Simeon E. Baldwin, The Constitutional Questions Incident to the Acquisition and Government by the United States of Island Territory, 12 HARV. L. REV. 393, 412 (1899) (arguing that the acquisition of Puerto Rico and the Philippines was constitutional, stating that Congress could establish governments therein once the treaty with Spain is ratified, but also stating that there were several open questions including "[w]hether Puerto Rico can be held permanently and avowedly as a colonial dependence");
60. C. C. Langdell, The Status of Our New Territories, 12 HARV. L. REV. 365, 371 (1899) (discussing the definition and scope of the term "United States," and arguing that while the term might encompass the Territories, "the use of the word . . . has ... no legal or constitutional significance.");
61. Abbott Lawrence Lowell, The Status of Our New Possessions: A Third View, 13 HARV. L. REV. 155 (1899) (examining the legal status of territories acquired by conquest or cession, and differentiating between territory acquired with the intention of incorporating it into the United States and territory acquired without that purpose, and stating that constitutional rights do not apply to territory acquired without that purpose);
62. Carman F. Randolph, Constitutional Aspects of Annexation, 12 HARV. L. REV. 291 (1898) (arguing that the Constitution applies to Filipinos, and that because upon annexation Filipinos owed allegiance to the United States, that they ought to be considered citizens);
63. James Bradley Thayer, Our New Possessions, 12 HARV. L. REV. 464, 484 (1899) (discussing the constitutional powers over the newly acquired Hawaii and Philippines and urging caution with respect to settling the territorial fate of the Philippines, but less caution with respect to Hawaii).
64. Randolph, supra note 30, at 299-301.
65. 18 U.S. 317 (1820).
66. Scott v. Sandford (Dred Scott), 60 U.S. 393 (1856).
67. "[A]ll Duties, Imposts and Excises shall be uniform throughout the United States ...." U.S. CONST, art. I, § 8, cl. 1.
68. 182 U.S. 244 (1901).
69. Loughborough, 18 U.S. at 319.
70. "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States ...." U.S. CONST, art. IV, § 3, cl. 2.
71. Dred Scott, 60 U.S. at 432.
72. Id. at 446-47.
73. Langdell, supra note 30, at 383.
74. Id. at 386.
75. See RUBIN FRANCIS WESTON, RACISM IN U.S. IMPERIALISM: THE INFLUENCE OF RACIAL ASSUMPTIONS ON AMERICAN FOREIGN POLICY, 1983-1946, at 15 (1972) ("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.") (citation omitted).
76. Baldwin, supra note 30, at 401.
77. Id. at 415.
78. Thayer, supra note 30, at 466. To be clear, Thayer was not suggesting that the application of U.S. constitutional law to the territories would help in "teaching nations how to live." Id. Rather, Thayer's was a condescending point of view reminiscent of Kipling's contemporary poem about the "white man's burden."
79. See Rudyard Kipling, The White Man's Burden, MCCLURE'S MAG., Feb. 1899 ("[S]erve your captives' need; / To wait, in heavy harness, / On fluttered folk and wild - / Your new-caught sullen peoples, / Half devil and half child.").
80. See John Fiske, Manifest Destiny, 70 HARPER'S NEW MONTHLY MAG. 578 (1885) (explaining that the civilization of societies depends on "the general diminution of warfare," and that ultimately, such a diminution is made possible only by the integration of small political groups into larger groups);
81. see also Julius W. Pratt, John L. O'Sullivan and Manifest Destiny, 14 NEW YORK HISTORY 213, 221 (1933) (discussing O'Sullivan's contributions to Democratic Review and the development of the notion of "manifest destiny," which "was a perfect expression of the current enthusiastic belief in American democracy and in the mission of the United States to carry it throughout the North American continent");
82. THOMAS, supra note 19, at 211 (explaining that O'Sullivan "coined the phrase 'manifest destiny' to describe the expectation that the U.S., thanks to the superior qualities of the Anglo-Saxons as such ... and to their democratic institutions, would inevitably absorb their neighbors").
83. Thayer, supra note 30, at 467.
84. Id. at 480.
85. Id.
86. See Lowell, supra note 30, at 170 ("It may be suggested that these provisions [in the treaties for the cession of Louisiana and Florida] were not meant to confer any immediate rights upon the inhabitants of the country ceded, but were intended merely to provide for the admission of States to be formed out of that country in the future.").
87. See HENRY K. CARROLL, REPORT ON THE ISLAND OF PORTO RICO 58-64 (1899) (maintaining that the existing institutions and laws of Puerto Rico did not demand drastic reform, only modification, and that therefore the "Constitution and laws of the United States" should be extended to the territory). But the military governor of Puerto Rico at the time, Gen. George W. Davis, was of the view that "[t]he people of [Puerto Rico] have no conception of political rights combined with political responsibilities." H.R. Doc. No. 56-2, at 19-20 (1900).
88. CARROLL, supra note 51, at 57.
89. Id.
90. S. 2264, 56th Cong., 33 CONG. REC. 702 (1900).
91. See generally BRIAN MCALLISTER LINN, THE PHILIPPINE WAR: 1899-1902 (2000) (advocating a new interpretation of the Philippine War that considers the multitude of competing factors and the high degree of complexity involved in explaining the motives and ultimate outcome of the war).
92. 33 CONG. REC. 1994 (1900).
93. id. at 2043.
94. id. at 2067.
95. Id. at 2105.
96. Id. at 3613 (citing a report of the Philippine Commission to the President).
97. Id. at 3616.
98. Foraker Act, ch. 191, § 4, 31 Stat. 77, 81-82, 84 (1900).
99. See id. at 78 (1900) (establishing that taxes and duties collected in Puerto Rico would be "placed at the disposal of the President to be used for the government and benefit of Porto Rico").
100. See Walter F. Pratt, Jr., Insular Cases, in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES 500 (Kermit L. Hall et al. eds., 2d ed. 2005) (contending that the Supreme Court "echo[ed] the popular sentiment" by "translat[ing] the political dispute into the vocabulary of the Constitution").
101. See Walter LaFeber, The Election of 1900, in 3 HISTORY OF AMERICAN PRESIDENTIAL ELECTIONS, 1789-1968, at 1878 (Arthur M. Schlesinger, Jr. et al. eds., 1971) (discussing McKinley's platform in the election of 1900).
102. See Pratt, supra note 64, at 500 ("[T]he acquisition of foreign territories, received overwhelming popular endorsement in the presidential election of 1900.").
103. But see Thomas A. Bailey, Was the Presidential Election of 1900 a Mandate on Imperialism?, 24 MISS. VALLEY HIST. REV. 43, 45-46 (identifying Bryan's support of the silver standard, rather than the gold standard, as the primary cause of his defeat in the 1900 elections rather than McKinley's belief in imperialism, as many anti-imperialists voted for McKinley due to a fear of economic chaos that could result from implementation of the silver standard).
104. See generally THE JUSTICES OF THE UNITED STATES SUPREME COURT 1789-1969 vols. 2 & 3, at 1471-95, 1281-95, 1379-89, 1515-34, 1553-63, 1577-92, 1633-57, 1685-1703, 1719-36 (Leon Friedman & Fred L. Israel eds., 1969) (providing biographies of Chief Justice Fuller and Justices Harlan, Gray, Brewer, Brown, Shiras, White, Peckham, and McKenna).
105. See Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895) (holding the federal income tax unconstitutional);
106. Lochner v. New York, 198 U.S. 45 (1905) (holding wage and hours laws to be a violation of the Due Process clause).
107. CHARLES A. KENT, MEMOIR OF HENRY BILLINGS BROWN 136 (1915). Shortly before the Spanish-American War he wrote: "There is but one way in which the Spanish-American people are united. They all hate us - always have, and always will, and the more we do for them the more bitter their hatred. I dislike the idea of intervention [in Cuba], but we may be driven to it yet." Id.
108. James F. Watts, Jr., Joseph McKenna, in 3 THE JUSTICES OF THE UNITED STATES SUPREME COURT 1789-1969, supra note 67, at 1727.
109. See Cincinnati, New Orleans & Tex. Pac. Ry. Co. v. Interstate Commerce Comm'n, 162 U.S. 184 (1896) (voting on behalf of railroad company plaintiff); Interstate Commerce Comm'n v. Ala. Midland Ry. Co., 168 U.S. 144 (1897) (voting to restrict the ICC's influence over railroad companies).
110. 112 U.S. 94 (1884).
111. See, e.g., David J. Brewer, Assoc. Justice of the U.S. Supreme Court, The Spanish War: A Prophecy or an Exception?, Address at the Third Dinner of the Liberal Club (Feb. 16, 1899) (on file with the Harvard Law Library) (arguing that America's becoming a colonial power would be contrary to the ideals of the Declaration of Independence).
112. See MICHAEL J. BRODHEAD, DAVID J. BREWER: THE LIFE OF A SUPREME COURT JUSTICE 1837-1910, at 129 (1994) (stating that while Brewer generally opposed imperialism, his support of missionary activities led him to approve of American military intervention in China to protect missionaries during the Boxer Rebellion);
113. David J. Brewer, Assoc. Justice of the U.S. Supreme Court, Our Duty as Citizens, Lecture at Haverford College, in DAVID J. BREWER, THE UNITED STATES: A CHRISTIAN NATION 69-70 (1905) ("I do not stop to discuss ... whether it is wise wholly to forget Washington's farewell advice to avoid entangling alliances with other nations But of one thing I am sure. In no other way can this republic become a world power than by putting into her life and the lives of her citizens the spirit and principles of the great founder of Christianity."). It should be noted that the manifest destiny movement was at least partially based on the duty to spread Christianity, particularly the Protestant versions, to other lands and peoples.
114. See PRATT, supra note 13, at 5 (discussing Congregational clergyman Josiah Strong's views of Christian expansion in his work, Our Country: Its Possible Future and Its Present Crisis).
115. See 163 U.S. 537, 559 (Harlan, J., dissenting) ("Our Constitution is color blind, and neither knows nor tolerates classes among citizens.... The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.");
116. The Civil Rights Cases, 109 U.S. 3, 26-61 (1883) (Harlan, J., dissenting) (supporting the view that by passing the Thirteenth and Fourteenth Amendments, Congress intended to prevent racial discrimination in private as well as public contexts);
117. Berea Coll. v. Kentucky, 211 U.S. 45, 58-69 (1908) (Harlan, J., dissenting) (arguing that states do not have a right to prohibit private integrated educational institutions);
118. Hurtado v. California, 110 U.S. 516, 538-57 (1884) (Harlan, J., dissenting) (contending that to maintain consistency with due process in capital cases, a state may not convict a person unless a grand jury has presented an indictment);
119. Twining v. New Jersey, 211 U.S. 78, 114-27 (1908) (Harlan, J., dissenting) (arguing that the Fourteenth Amendment protection of the right to freedom from self-incrimination does not apply only to federal court cases); Standard Oil Co. v. United States, 221 U.S. 1, 82-106 (1911) (Harlan, J., dissenting) (objecting to the Court's relaxation of antitrust scrutiny by adopting the "rule of reason");
120. United States v. Am. Tobacco Co., 221 U.S. 106, 189-93 (1911) (Harlan, J., dissenting) (same);
121. Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 608-53 (1895) (Harlan, J., dissenting) (contending that public instrumentalities for federal tax collection are exempt from paying taxes while private corporations are not);
122. Lochner v. New York, 198 U.S. 45, 65-74 (1905) (Harlan, J., dissenting) (arguing that states' general police power enables them to interfere with private contracts in order to limit workers' hours);
123. see also Alan F. Westin, John Marshall Harlan and the Constitutional Rights of Negroes: The Transformation of a Southerner, 66 YALE L.J. 637 (1957) (contending that Harlan's support for civil rights on the Supreme Court flowed from a desire to protect citizens from government oppression).
124. 182 U.S. 1 (1901).
125. Id. at 196.
126. Id. at 198 (emphasis added).
127. Id. at 214. See Treaty of Peace between the United States of America and the Kingdom of Spain, supra note 21, art. IX, para. 2 ("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.").
128. De Lima, 182 U.S. at 219.
129. 182 U.S. 221 (1901).
130. 182 U.S. 222 (1901).
131. Id. at 236 (White, J., dissenting).
132. Id. at 234.
133. Id.
134. 182 U.S. 243 (1901).
135. Downes v. Bidwell, 182 U.S. 244, 244 n.1 (1901).
136. id. at 249.
137. Id.
138. See id. at 292-93, 361 (agreeing with Marshall's statement in Loughborough that Article I, Section 9 of the Constitution grants the federal government power to tax the District of Columbia and disputing Justice Taney's assertion in Dred Scott that the Territorial Clause was not meant to enable the federal government to establish political power over territories);
139. cf. Langdell, supra note 30, at 382-83 (arguing that because the District of Columbia was created from states, where the Constitution had already attached, it may be difficult to demonstrate that the Constitution ever stopped applying to it).
140. Charles E. Littlefield, The Insular Cases, 15 HARV. L. REV. 169, 178 (1901).
141. Dowries, 182 U.S. at 282.
142. Id. at 286-87(emphasis added).
143. Cf. Igartúa-De La Rosa v. United States, 417 F.3d 145 (1st Or. 2005) (en banc) (holding that residents of Puerto Rico do not have a constitutional right to vote in U.S. presidential elections, consistent with Downes, which held that the revenue clause of the U.S. Constitution does not extend to Puerto Rico).
144. See Lowell, supra note 30, at 176 (introducing the incorporation doctrine).
145. Downes, 182 U.S. at 339 (White, J., concurring).
146. Id. at 291.
147. Id. at 341-42 (emphasis added).
148. Id. at 353 (Fuller, J., dissenting).
149. Id. at 372-73.
150. Id. at 374.
151. Id. at 378 (Harlan, J., dissenting) (emphasis added).
152. See Balzac v. Porto Rico, 258 U.S. 298 (1922) (holding that the constitutional guarantee of a jury trial does not apply to territories of the United States that have not been incorporated into the Union);
153. see also Califano v. Torres, 435 U.S. 1 (1978) (holding that a provision of the Social Security Act which limits benefits to United States residents is constitutional);
154. Harris v. Rosario, 446 U.S. 651 (1980) (holding that Puerto Rico can be treated differently than the states by the Aid to Families with Dependent Children program so long as there is a rational basis for the different treatment).
155. Compare Balzac, 258 U.S. at 309 ("It is locality that is determinative of the application of the Constitution ... not the [citizenship] status of the people who live in it."), with Reid v. Covert, 354 U.S. 1, 5 (1957) ("[W]e reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights.").
156. Downes, 182 U.S. at 379.
157. Id. at 380.
158. 182 U.S. 392 (1901).
159. Another unanimous Insular Cases-related decision was Gonzalez v. Williams, 192 U.S. 1 (1904), in which the Court, with the judicial inventiveness that typified the whole Insular Cases era, ruled that the inhabitants of Puerto Rico became U. S. nationals after the Treaty of Paris was signed, owing allegiance to the United States notwithstanding their not being citizens thereof. As nationals they could enter the United States without impediment, as they were not aliens. Dick Thornburgh commenting on this decision states that in engaging in this judicial legislation the Supreme Court created a "limbo status for ... noncitizens in [the] newly acquired overseas territories ... demonstrating] that once the courts start making political and social policy, they often have to make yet more political and social policy to sustain those court-created policies that are not sustained by measures adopted by the political branches of government." DICK THORNBURGH, PUERTO RICO'S FUTURE: A TIME TO DECIDE 49 (2007).
160. Huus, 182 U.S. at 396.
161. See FELIX FRANKFURTER, MR. JUSTICE HOLMES AND THE SUPREME COURT 77-87 (2d ed. 1961) (discussing Holmes' unwavering belief in freedom of speech in the post-World War I era while the majority of the court frequently upheld administrative restrictions thereon but disallowed restraints on economic power).
162. OLIVER WENDELL HOLMES, Lecture I: Early Forms of Liablity, in THE COMMON LAW 5 (Mark DeWolfe Howe ed., Harvard Univ. Press 1963) (1881).
163. 258 U.S. 298 (1922).
164. 190 U.S. 197 (1903).
165. Hawaiian Organic Act, ch. 339, § 6,31 Stat. 141, 142 (1900).
166. Mankichi, 190 U.S. at 215-18.
167. See JUAN R. TORRUELLA, GLOBAL INTRIGUES 27-35 (2007) (analyzing the strong expansionist agenda of the United States in the eighteenth and nineteenth century that resulted in increased U.S. citizenship).
168. S. REP. NO. 55-681, at 96 (1898).
169. Mankichi, 190 U.S. at 240 (Harlan, J., dissenting).
170. See Rassmussen v. United States, 197 U.S. 516, 516 (1905) ("The treaty with Russia concerning Alaska, instead of exhibiting, as did the treaty with Spain regarding the Philippine Islands, the determination to reserve the question of the status of the acquired territory for ulterior action by Congress, manifested a contrary intention to admit the inhabitants of the ceded territory to the enjoyment of citizenship, and expressed the purpose to incorporate the territory into the United States.").
171. Id. at 522 (emphasis added).
172. 195 U.S. 100 (1904).
173. Philippine Organic Act, ch. 1369, 32 Stat. 691 (1902).
174. Kepner, 195 U.S. at 134.
175. 195 U.S. 138 (1904).
176. Id. at 156 (Harlan, J., dissenting).
177. 351 U.S. 470 (1956), rev'd on reh'g sub nom. Reid v. Covert, 354 U.S. 1 (1957).
178. 351 U.S. 487 (1956), rev'd on reh'g, 354 U.S. 1 (1957).
179. William Henry Moody replaced Justice Henry Billings Brown in 1906; Justice Rufus Wheeler Peckham died in 1909 and was substituted by Horace Harmon Lurton; Justice David Brewer died the following year and Charles Evans Hughes was appointed in his place; Chief Justice Fuller also died in 1910, and Justice White was elevated to Chief Justice by President Taft; meanwhile Justice Moody resigned, to be replaced by Joseph Rucker Lamar and Willis Van Devanter was appointed to fill White's position as Associate Justice, and in 1911, Justice Harlan, the last remaining opponent of the inequality promoted by the Insular Cases, died to be replaced by Mahlon Pitney. In 1914 Justice Lurton died, and James Clark McReynolds was appointed to the Court by President Woodrow Wilson.
180. See generally HALL, supra note 64, at 105, 371, 419-22, 478, 569, 597, 649, 725, 736, 1045, 1086; 3 THE JUSTICES OF THE UNTIED STATES SUPREME COURT 1789-1969: THEIR LIVES AND MAJOR OPINIONS 1633-57, 1685-1703, 1801-22, 1847-63, 1893-1915, 1945-53, 1973-89, 2001-09, 2023-33 (Leon Friedman & Fred L. Israel eds., 1969).
181. See Ocampo v. United States, 234 U.S.91 (1914) (holding that the Philippine Bill of Rights "contains no specific requirement such as is contained in the Fifth Amendment of a presentment or indictment by grand jury, nor is such a requirement included within the guaranty of due process of law");
182. Dowdell v. United States, 221 U.S. 325 (1911) (holding that "[t]he 'face to face' provision of the Philippine Bill of Rights does not prevent the judge and clerk of the trial court from certifying as additional record to the appellate court what transpired on the trial of one convicted of a crime without the accused being present when the order was made");
183. Grafton v. United States, 206 U.S. 333 (1907) (holding that a person acquitted of a crime committed in the Philippines by a military court of the United States "cannot subsequently be tried for the same offense in a civil court in that territory");
184. Trono v. United States, 199 U.S. 521 (1905) (holding that the Supreme Court of the Philippines did not commit an error in convicting a defendant on appeal for a crime for which he was acquitted at trial).
185. Jones Act, ch. 145, 39 Stat. 951 (1917).
186. See TORRUELLA, supra note 9, at 85 n.287 (providing citations for these proposed bills).
187. 40 CONG. REC. 23, 36 (1905).
188. E.g., H.R. 22554, 61st Cong., 45 CONG. REC. 2932 (1910).
189. H.R. REP. NO. 62-341, at 2 (1912).
190. 51 CONG. REC. 75 (1913).
191. Adroitly verbalized by Congressman Cooper during the Jones Act debate: "We are never to give up Porto Rico for, now that we have completed the Panama Canal, the retention of the island becomes very important to the safety of the canal, and in that way to the safety of the Nation itself. It helps to make the Gulf of Mexico an American lake." 54 CONG. REC. 4170 (1917);
192. see also JORGE RODRIGUEZ BERUFF, STRATEGY AS POLITICS: PUERTO RICO ON THE EVE OF THE SECOND WORLD WAR 28 (2007) (noting military presence in Puerto Rico and the twin American aims of securing the Panama Canal and ensuring national security by guarding the Gulf of Mexico).
193. Compare RODRIGUEZ BERUFF, supra note 136, at 31-32 (discussing Puerto Rico's enhanced strategic importance during World War I because of its "perceived naval importance in the Caribbean" and potential "as a source for military recruits," on President Wilson's decision to sign the Jones Act), ARTURO MORALES CARRIÓN, PUERTO RICO: A POLITICAL AND CULTURAL HISTORY 193 (1983) ("More was involved than the relations between the United States and Puerto Rico or the vagaries of colonial tutelage. Much of the world was at war, and defense considerations now impinged on many decisions of the Administration."), and EFRÉN RIVERA RAMOS, THE LEGAL CONSTRUCTION OF IDENTITY: THE JUDICIAL AND SOCIAL LEGACY OF AMERICAN COLONIALISM IN PUERTO RICO 147 (2001) (exploring why the United States granted citizenship to Puerto Ricans and concluding that "certainly wider strategic preoccupations figured principally among the considerations borne in mind by American decision makers."), with José A. Cabranes, Citizenship and the American Empire, 127 U. PA. L. REV. 391, 406 (1978) ("The author is unaware of any evidence of a design by anyone in the American government during this period to make extensive use of Puerto Ricans in the armed services or to make Puerto Ricans citizens on the theory that they might then be conscripted.").
194. See 53 CONG REC. 1753, 4021-22, 7281-82, 7468-94, 8409-25, 8457-79 (1916);
195. 54 CONG REC. 1324-29, 2162-64, 2221-23, 2248-65, 3005-11, 3069-74, 3467-79, 3666-67 (1917) (chronicling the debates over the Jones Act and containing little meaningful discussion about granting citizenship to Puerto Ricans).
196. Jones Act, ch. 145, § 2, 39 Stat. 951, 951-52 (1917).
197. id. § 25, 39 Stat. at 958.
198. Id. § 29, 39 Stat. at 959.
199. Id. § 41, 39 Stat. at 965.
200. Id. § 9, 39 Stat. at 955.
201. Two other events in America's colonial empire were also taking place in 1917. The first is that the Philippine Jones Act was enacted into law declaring the intention of the United States to grant independence to this territory. See An Act to Declare the Purpose of the People of the United States as to the Future Political Status of the People of the Philippine Islands, and to Provide a More Autonomous Government for Those Islands, ch. 416, pmbl., 39 Stat. 545 (1917) (seeking to achieve the "speedy" independence of the Philippine Islands). This is significant in that it clearly signaled that in Congress's eyes Puerto Rico and the Philippines were taking different routes towards their destiny. Independence was thus proclaimed for the Philippines in 1946, after the Japanese occupation of the Islands during World War II. See Proclamation No. 2695, 3 C.F.R. 64 (1946 Supp.), 60 Stat. 1352 (declaring the independence of the Philippine Islands); 22 U.S.C. § 1394 (2000) (affirming the same). Puerto Rico is, of course, still in the fold with a modicum of additional local self-government having been granted by Congress in 1950. See An Act to Provide for the Organization of a Constitutional Government by the People of Puerto Rico, ch. 446, 64 Stat. 319 (1950);
202. see also Juan R. Torruella, ¿Hacia dónde vas Puerto Rico?, 107 YALE L.J. 1503, 1511-12 (1998) (reviewing JOSÉ TRÍAS MONGE, PUERTO RICO: THE TRIALS OF THE OLDEST COLONY IN THE WORLD (1997)) (discussing the enactment of the Jones Act). The second event was the acquisition of the Danish Virgin Islands by the United States. See Convention Between the United States and Denmark for Cession of the Danish West Indies, U.S.-Den., Aug. 4, 1916, 39 Stat. 1706. Thus, while the United States was planning to reduce its formal empire in the Far East, it was expanding it closer to home in the Caribbean by purchasing from Denmark the islands of St. Thomas, St. John, and St. Croix.
203. Of Justice Brandeis's 528 opinions while on the Court, 84 were dissents, many of them from Chief Justice Tait's views.
204. See, e.g., Truax v. Corrigan, 257 U.S. 312, 354 (1921) (Brandeis, J., dissenting) (disagreeing with Taft's decision to invalidate an Arizona law that protected striking laborers from court injunctions).
205. Two obscure but Insular Cases-related decisions were handed down by the Supreme Court in 1918 while Chief Justice White still held tenure: Porto Rico v. Tapia, 245 U.S. 639 (1918) (per curiam) and Porto Rico v. Muratti, 245 U.S. 639 (1918) (per curiam). In both cases, the lower courts in Puerto Rico had concluded that defendants had not been properly charged because they had not been indicted by grand juries, and thus, presumably the Sixth Amendment had been violated. In a cryptic per curiam the Supreme Court reversed, citing Downes, Mankichi, and Dorr, an inscrutable conclusion at the time considering what the Court had said regarding the granting of citizenship in Mankichi and Rasmussen, but understandable with the benefit of the hindsight that Balzac would soon provide. Id.
206. See, e.g., William H. Taft, The Right of Private Property, 3 MICH. L. J. 215, 218 (1894) (noting that "security of property and contract and liberty are indissolubly linked" and, as a result, "with [our government's] many checks and balances," we are better able to protect those intrinsic rights because the United States is "much further removed from the gusty and unthinking passions of temporary majorities" than England).
207. The Piatt Amendment respecting Cuba was added to the army appropriations bill for 1901-02. Act of Mar. 2, 1901, ch. 803, paras. I-VII, 31 Stat. 895, 898 (1901). The Cubans incorporated the amendment into the Cuban constitution on June 12, 1901, as a condition of American withdrawal from the island. In it, Cuba agreed not to impair its independence by treaty with foreign powers, not to assume public debt beyond the ability of its ordinary revenues to liquidate, to permit U.S. intervention for the protection of Cuban independence, and to sell or lease to the United States land necessary for naval or coaling stations. CONSTITUCIÓN DE LA REPÚBLICA DE CUBA art. III (1901).
208. See Truman R. Clark, President Taft and the Puerto Rican Appropriation Crisis of 1909, 26 THE AMERICAS 152, 153 (1969) ("Taft's strong reaction to the Puerto Rican appropriation crisis and his subsequent manipulations of some of the Puerto Rican political leaders show another, perhaps more Rooseveltian, side to him.").
209. The placing of Puerto Rico under the War Department, although "represent[ing] a hardening of colonial policy," RODRÍ GUEZ BERUFF, supra note 136, at 37, was not in fact a total departure from the manner in which Puerto Rico had been governed since the change in sovereignty from Spain, and for that matter, during Spanish sovereignty when Spanish governor generals were the order of the day. Most of the early U.S. colonial governors were not only military men but also came from the Indian wars experience in the West. These included all the military governors from 1898 through 1900: Gen. Nelson A. Miles, Gen. John R. Brooke, Gen. Guy V. Henry, and Brig. Gen. George Davis. Most of those that followed as civil governors of Puerto Rico after the Foraker Act of 1900 was enacted were also in the military or closely affiliated therewith. For instance, Charles Allen (1900-1904), was a former Assistant Secretary of the Navy, as were Beekman Winthrop (1904-1907), and Theodore Roosevelt Jr. (1929-1932). The latter, also a Lieutenant Colonel in the Army Reserve, died during the invasion of Normandy in World War II. Other military men who were appointed to the Puerto Rican governorship included Col. George Colton (1909-1913), Gen. Blanton Winship (1934-1939), and Adm. William D. Leahy (1939-1940). Id. at 17- 28.
210. William Howard Taft, President, Message to Congress (May 10, 1909), in 3 THE COLLECTED WORKS OF WILLIAM HOWARD TAFT 78 (David Burton ed., 2002);
211. see also 2 HENRY F. PRINGLE, THE LIFE AND TIMES OF WILLIAM HOWARD TAFT (Archon Books 1964) (1939) (documenting Taft's political career and his statements advocating less independence for Puerto Rico's government);
212. RODRÍGUEZ BERUFF supra note 136, at 36 (discussing the way in which the "rising labor agitation and strikes" contributed to Taft's statements about the gravity of the situation and the subsequent adoption of a provision in the Foraker Act authorizing the "president to place Puerto Rican affairs under the executive agency of his choosing").
213. People v. Balzac, 28 P.R. 139 (1920);
214. People v. Balzac, 28 P.R. 141 (1920).
215. Balzac v. Porto Rico, 258 U.S. 298, 308-09 (1922) (emphasis added).
216. Balzac, 258 U.S. at 309 (citation omitted).
217. id. at 310-11.
218. Id. at 312-13.
219. id. at 309.
220. Id. at 310.
221. As the Court itself recognizes. Id. at 300 ("The code of criminal procedure of Porto Rico grants a jury trial in cases of felony but not in misdemeanors.").
222. It should be noted that during the Spanish regime, elective government was not totally absent. In fact, Puerto Ricans, who at the time of the change in sovereignty had the full rights of citizens of Spain, elected sixteen deputies and three senators to the Spanish parliament (Cortes). See FERNANDO BAYRON TORO, ELECCIONES Y PARTIDOS POLITICOS DE PUERTO RICO 3 (1977). This is a condition that has not been duplicated under the American regime. See Igartúa-De La Rosa v. United States, 417 F.3d 145, 147 (1st Or. 2005) (en banc), cert. denied, 547 U.S. 1035 (2006) (holding that because Puerto Rico is defined as an unincorporated territory of the United States, it lacks state status and therefore cannot appoint presidential electors).
223. See Duncan v. Louisiana, 391 U.S. 145, 149 (1968) ("[T]rial by jury in criminal cases is fundamental to the American scheme of justice ....").
224. See Reid v. Covert, 354 U.S. 1 (1957) (holding that it is unconstitutional to try a civilian entitled to an Article III court by court-martial, which does not afford the right to a jury trial).
225. Kinsella v. Krueger, 351 U.S. 470, 475 (1956) (quoting Balzac, 258 U.S. at 304-05).
226. In re Ross, 140 U.S. 453 (1891).
227. Kinsella, 351 U.S. at 482 (Frankfurter, J., reserving judgment).
228. Id. at 485 (Warren, C.J., Black & Douglas, JJ., dissenting).
229. Reid v. Covert, 354 U.S. 1, 5-6 (1957) (footnotes omitted).
230. id. at 8-9 (footnotes omitted).
231. Id. at 12.
232. Id. at 14 (emphasis added, footnotes omitted);
233. cf. Downes v. Bidwell, 182 U.S. 244, 380 (1901) (Harlan, J., dissenting) ("In my opinion, Congress has no existence and can exercise no authority outside of the Constitution. Still less is it true that Congress can deal with new territories just as other nations have done or may do with their new territories. The nation is under the control of a written constitution, the supreme law of the land and the only source of the powers which our Government, or any branch or officer of it, may exert at any time or any place.").
234. Reid, 354 U.S. at 49 (Frankfurter, J., concurring).
235. See id. at 53 ("The 'fundamental right' test is the one which the Court has consistently enunciated in the long series of cases dealing with claims of constitutional restrictions on the power of Congress to 'make all needful Rules and Regulations' for governing the unincoporated territories.") (citations omitted). It should be noted that as a young lawyer, Felix Frankfurter had worked in the Bureau of Insular Affairs and, while there, on the drafting of the Jones Bill. MORALES CARRIÓ N, supra note 137, at 187.
236. See Reid, 354 U.S. at 67 (Harlan, J., concurring) ("But I do not go as far as [Justice Black] seems to go .... His opinion, if I understand it correctly, in effect discards Ross and the Insular Cases as historical anomalies. I believe that those cases, properly understood, still have vitality, and that ... they have an important bearing on the question now before us.");
237. id. at 74-78.
238. Id. at 79 (Clark, J., dissenting) ("I remain convinced that the former opinions of the Court are correct and that they set forth valid constitutional doctrine under the long-recognized cases of this Court.").
239. See, e.g., Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 248 (1960) (rejecting court-martial jurisdiction for civilian dependents overseas who are prosecuted for non-capital offenses).
240. See, e.g., Grisham v. Hagan, 361 U.S. 278 (1960) (holding that civilian employees were entitled to the right of trial by jury);
241. McElroy v. United States ex rel. Guagliardo, 361 U. S. 281 (1960) (holding that Article 2(11) of the Uniform Code of Military Justice did not apply to non-capital offenses committed overseas by civilian employees).
242. Examining Bd. of Eng'rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 600 (1976).
243. 42 U.S.C. § 1382c(e) (2000).
244. Califano v. Torres, 435 U.S. 1, 4 (1978) (per curiam).
245. 42 U.S.C. §§ 1308, 1396d(b)(2) (2000).
246. Harris v. Rosario, 446 U.S. 651, 651-52 (1980) (holding per curiam that Puerto Rico could be distinguished from the states because Puerto Rican residents did not contribute to the federal treasury, the cost of treating Puerto Rico as a state under the statute would be high, and greater benefits could disrupt the Puerto Rican economy).
247. Id. at 653-54 (Marshal, J., dissenting) ("It is important to remember at the outset that Puerto Ricans are United States citizens and that different treatment to Puerto Rico under AFDC may well affect the benefits paid to these citizens.") (citation omitted). Similar language was contained in Justice Brennan's concurrence, joined by Justices Stewart, Marshall, and Blackman, in Torres v. Puerto Rico, in which the majority opinion by Chief Justice Burger nevertheless relies on the Insular Cases in holding that the Fourth Amendment is applicable to Puerto Rico. 442 U.S. 465, 475-76 (1979) (Brennan, J., concurring).
248. U.S. CONST, art. VI, para. 2 (emphasis added).
249. See Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004) (recognizing an "implicit sanction to entertain the handful of international law cum common law claims understood in 1789");
250. The Paquete Habana, 175 U.S. 677, 700 (1900) ("International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.").
251. See, e.g., Universal Declaration of Human Rights, G.A. Res. 217A, U.N.GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) [hereinafter UDHR];
252. Organization of American States [OAS], American Declaration of the Rights and Duties of Man, OAS Res. XXX, (1948);
253. OAS, Inter-American Democratic Charter, OAS Doc. OEA/Ser.P/AG/RES.1 (XXVIII-E/01) (Sept. 11, 2001);
254. International Covenant on Civil and Political Rights, adopted Dec. 19, 1976, 999 U.N.T.S. 171 (ratified by United States June 8, 1992) [hereinafter ICCPR].
255. UDHR, supra note 185, art. 21(1).
256. Id. art. 21(3).
257. ICCPR, supra note 185.
258. Id. art. 1(1).
259. Id. art. 25.
260. Id. art. 2(1).
261. Id. art. 2(2).
262. Act of July 3, 1950, ch. 446, 64 Stat. 319 (1950).
263. There were plebiscites conducted in 1967, 1993, and 1998, but they were provided for by the local legislature and thus not binding on Congress. See STAFF OF THE H. COMM. ON RESOURCES, 106TH CONG., RESULTS OF THE 1998 PUERTO RICO PLEBISCITE, SERIAL NO. 106-A, at 6 (Comm. Print 1999) (report by Rep. Don Young, Chairman, House Comm. on Resources & Rep. George Miller, Member, House Comm. on Resources).
264. See Igartua-De La Rosa v. United States, 417 F.3d 145, 149 (1st Cir. 2005) (en banc), cert. denied, 547 U.S. 1035 (2006) ("[N]one of these treaties comprises domestic law of the United States and so their status furnishes the clearest ground for denying declaratory relief.");
265. id. at 151 ("[T]he right [to vote] claimed cannot be implemented by courts unless Puerto Rico becomes a state or until the Constitution is changed ....").
266. Courts and commentators have used the term "non-self-executing" to mean several things.
267. See David N. Cinotti, Note, The New Isolationism: Non-Self-Execution Declarations and Treaties as the Supreme Law of the Land, 91 GEO. L.J. 1277, 1279-80 (2003) (providing three definitions of "non-self-executing" treaties, namely, treaties that (a) are nonjusticiable, (b) convey no private right of action, or (c) require Congress to enact implementing legislation). For present purposes, the term is defined as treaties which do not create individually enforceable rights without the passage of implementing legislation.
268. See Columbia Marine Servs., Inc. v. Reffet Ltd., 861 F.2d 18, 21 (2d Cir. 1988) (defining "self-executing" as prescribing rules for determining private rights).
269. Igartúa-De La Rosa, 417 F.3d at 150.
270. See id. at 150-51 ("[T]hey are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be 'self-executing' and is ratified on these terms.").
271. See id. at 158-84 (Torruella, J., dissenting);
272. id. at 184-192 (Howard, J., dissenting). In my discussion of the issue of self-execution of treaties I have borrowed heavily from Judge Howard's dissent in this case, which I joined.
273. See THOMAS M. FRANCK, POLITICAL QUESTIONS/JUDICIAL ANSWERS: DOES THE RULE OF LAW APPLY TO FOREIGN AFFAIRS? 4-5 (1992) ("[T]he 'political-question doctrine,' is not only not required by[,] but [is] wholly incompatible with American constitutional theory.");
274. see also Rachel E. Barkow, More Supreme Than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 237, 334 (2002) ("Because the prudential doctrine allows the Court to avoid deciding a case without a textual analysis of the Constitution, it is this aspect of the political question doctrine that seems to be an unjustified dereliction of the Court's duty to 'say what the law is.'");
275. Michael J. Glennon, Foreign Affairs and the Political Question Doctrine, 83 AM. J. INT'L L. 814, 815 (1989) ("In modern American society, these justifications for judicial abstention [under the political question doctrine] seem increasingly to be calls for judicial abdication.");
276. Louis Henkin, Is There a "Political Question" Doctrine?, 85 YALE L.J. 597, 601 (1976) ("The cases which are supposed to have established the political question doctrine required no such extra-ordinary abstention from judicial review; they called only for the ordinary respect by the courts for the political domain."). 2d See Jordan J. Paust, Self-Executing Treaties, 82 AM. J. INT'L L. 760, 760 (1988) ("The distinction found in certain cases between 'self-executing' and 'non-self-executing' treaties is a judicially invented notion that is patently inconsistent with the express language in the Constitution ....");
277. see also LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 201 (2d ed. 1996) ("A tendency in the Executive branch and in the courts to interpret treaties and treaty provisions as non-self-executing runs counter to the language, and spirit, and history of Article VI of the Constitution.");
278. Yuji Iwasawa, The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis, 26 VA. J. INT'L L. 627, 638 (1986) (citing the Constitution while noting that the United States follows a system of "automatic incorporation").
279. See, e.g., United States v. Green, 671 F.2d 46, 50 (1st Cir. 1982) (noting disagreement as to whether Article 6 of the Convention on the High Seas is self-executing).
280. See Whitney v. Robertson, 124 U.S. 190, 194 (1888) (describing in detail the proper application of the doctrine of self-execution).
281. See generally Carlos Manuel Vázquez, The Four Doctrines of Self-Executing Treaties, 89 AM. J. INT'L L. 695 (1995) (discussing the history of the doctrine and the subtleties of its proper application).
282. See J.G. STARKE, INTRODUCTION TO INTERNATIONAL LAW 79-80 (10th ed. 1984) (noting that British law has developed independently from customary international law in that, while the Crown possesses the power to enter treaties, Parliament must enact enabling legislation because otherwise the Crown would be able to unilaterally legislate domestic law without Parliament's consent);
283. see also Ware v. Hylton, 3 U.S. (3 Dall.) 199, 275 (1796) (holding that treaties are traditionally non-self-executing in England in part because "no man living will say that a bare proclamation of the King, upon the ground of the treaty" is adequate authority for enacting domestic law);
284. J.G. Collier, Is International Law Really Part of the Law of England?, 38 INT'L & COMP. L.Q. 924, 925-26 (1989) (discussing the history of the doctrine of non-self-execution in England and noting one British court's reasoning that "because a treaty is concluded by the Crown ... and because the Crown cannot ... alter the law of the land, the obligation does not form part of [British law] and may not be enforced by the courts unless it has been [enacted by Parliament]" (citing The Parliament Beige, 4 P.D. 129 (1879) (holding a British treaty non-self-executing for the above reasoning))).
285. See Carlos Manuel Vázquez, Treaty-Based Rights and Remedies of Individuals, 92 COLUM. L. REV. 1082, 1111 (1992) (describing the longstanding rule under British law that a treaty does not have domestic effect until Parliament enacts implementing legislation).
286. The Framers' intention to establish treaties as law, without the need for further legislative action, is supported not only by the unambiguous text of the Supremacy Clause, but also by the clear record of the events that preceded its adoption at the Constitutional Convention. One specifically rejected proposal would have required that treaties be sanctioned by legislation if they were to have "the operation of laws." JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 597 (W. W. Norton 1987) (1840). Another would have established two types of treaties: one requiring only action by the President and the Senate, and a second requiring additional action by the House of Representatives. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 538 (Max Farrand ed., rev. ed. 1966). In a similar vein, the Committee on Style removed from the final version of the Supremacy Clause language that would have given the national government the power to "enforce treaties." But the Committee struck this language because it was redundant considering the clear language of the Clause. Id. at 389-90. The rejection of these proposals illustrates that the language of the Supremacy Clause was not coincidental, but rather chosen after deliberation, and deliberately, to mean what it said. The expectation that treaties would become operative as domestic law upon ratification is also expressed in the Federalist Papers, and the ratification debates within the States. For example, in Federalist No. 22, Alexander Hamilton explained that "[t]he treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations." THE FEDERALIST NO. 22, at 150 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Similarly, at the North Carolina ratifying convention, one of the Constitution's supporters explained: "It was necessary that treaties should operate as laws on individuals. They ought to be binding upon us the moment they are made. They involve in their nature not only our own rights, but those of foreigners [and should be protected by the federal judiciary]." Paust, supra note 201, at 762 (quoting 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 27 (J. Elliot ed., 1941) (1830) (documenting the statements of William Davie, a North Carolina delegate to the Constitutional Convention)). Even those opposing ratification shared in this view: "Brutus," in criticizing Article III, stated that he could "readily comprehend what is meant by deciding a case under a treaty. For as treaties will be the law of the land, every person who have rights or privileges secured by treaty, will have of courts ... in recovering them." 16 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 172 (John P. Kaminski & Gaspare J. Saladino eds., 1986).
287. U.S. CONST, art. II, § 2, cl. 2. ("[The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.").
288. See Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 AM. J. INT'L L. 341, 346-47 (1995) (noting Justice Marshall's decision in Foster v. Neilson).
289. 27 U.S. (2 Pet.) 253 (1829), overruled in part by United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833).
290. Id. at 314-15.
291. See, e.g., Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 968 (4th Cir. 1992) (holding the Hague Convention on the laws and customs of war to be non-self-executing and thus concluding that it does not create a private right of action when breached));
292. Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373-74 (7th Cir. 1985) (holding that the U.N. Charter provisions stating that all members pledge to promote the "creation of conditions of stability and well- being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples" are not self-executing and do not create individual rights);
293. Cardenas v. Smith, 733 F.2d 909, 918 (D.C. Cir. 1984) (holding that a treaty between the United States and Switzerland for reciprocal assistance in criminal matters did not create "judicially enforceable rights" for individuals because the parties did not so intend);
294. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C. Cir. 1984) (dismissing claims of Israeli victims of a PLO bus bombing on the ground that treaties to which the United States is bound regarding human rights, laws of war, and terrorism do not create individually enforceable rights);
295. United States v. Postal, 589 F.2d 862, 884 (5th Cir. 1979) (holding that article 6 of the Convention on the High Seas is not self-executing and thus that the Coast Guard's Convention-breaching seizure of a foreign vessel in international waters did not preclude criminal prosecution in the courts of the United States).
296. Cf. British Caledonian Airways, Ltd. v. Bond, 665 F.2d 1153, 1168 (D.C. Cir. 1981) (holding that an administrative order prohibiting foreign airliners must be set aside because it violated a law Congress enacted to enforce several non-self-executing international agreements).
297. See Henkin, supra note 209, at 348-50 (noting political efforts to undermine treaty obligations that give rise to greater human rights obligations);
298. see also Lori Fisler Damrosch, The Role of the United States Senate Concerning "Self-Executing" and "Non-Self-Executing" Treaties, 67 CHI.-KENT L. REV. 515, 519-23 (1991) (describing the use of non-self-executing legislative declarations in response to human rights treaties);
299. David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 YALE J. INT'L L. 129, 173 (1999) (noting the Senate's reluctance to allow the United States to be bound by "nonredundant" human rights obligations - human rights obligations not already enacted into domestic law-arising from treaties).
300. Compare United States v. Nai Fook Li, 206 F.3d 56, 61 (1st Cir. 2000) (en banc) (stating that there is a presumption against self-executing treaties in American law), with id. at 68 (Torruella, J., dissenting).
301. See Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Or. 1976) ("In determining whether a treaty is self-executing courts look to the intent of the signatory parties as manifested by the language of the instrument, and, if the instrument is uncertain, recourse must be had to the circumstances surrounding its execution.").
302. See United States v. Alvarez-Machain, 504 U.S. 655, 667 (1992) ("The Extradition Treaty has the force of law, and if ... it is self-executing, it would appear that a court must enforce it on behalf of an individual regardless of the offensiveness of the practice of one nation to the other nation.").
303. See id. at 663 (stating that courts look first to a treaty's terms to determine its contents);
304. see also United States v. Stuart, 489 U.S. 353, 365-66 (1989) ("The clear import of treaty language controls unless 'application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.'").
305. A declaration is a statement of position by the Senate that "is not presented to the other international signatories as a request for a modification of the treaty's terms." Igartúa-De La Rosa v. United States, 417 F.3d 145, 190 (1st Cir. 2005) (Howard, J., dissenting), cert. denied, 547 U.S. 1035 (2006). "[I]t is directed primarily towards United States courts to express 'the sense of the Senate' that the treaty should ... be interpreted [in the manner proposed by the Senate]." Id. 2W See S. EXEC. REP. NO. 102-23, at 23 (1992) (conditioning the Senate's consent on the United States' declaration that the treaty be non-self-executing);
306. see also 138 CONG. REC. S4784 (1992) (documenting a letter from the President to the Senate requesting ratification of treaty terms).
307. A reservation is a "unilateral statement ... whereby ... [a State] purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State." Vienna Convention on the Law of Treaties art. 2(1)(d), May 23, 1969, 1155 U.N.T.S. 331. A reservation thus has an actual effect on the terms of the treaty.
308. See Michael J. Glennon, The Constitutional Power of the United States Senate to Condition Its Consent to Treaties, 67 CHI.- KENT L. REV. 533, 542 n.63 (1991) (noting that in exchange for its advice and consent, the Senate can require the President to enter a reservation to the treaty and obtain the other signatory's consent to this change). There is no doubt that the Senate may hinge its consent to ratify a treaty on a reservation.
309. See Haver v. Yaker, 76 U.S. (9 Wall.) 32, 35 (1869) (stating that the Senate may choose to modify or amend a treaty rather than adopting or rejecting it in its entirety). The reservation will vitiate the Senate's consent if its terms are not incorporated into the treaty.
310. See LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 180-81 (2d ed. 1996) (explaining that the Senate may give its consent "subject to conditions" that "may require renegotiation, to the dismay of Presidents").
311. See 138 CONG. REC. S4781, S4783 (stating that the United States will not take any steps to comply with ICCPR Article 20 that would infringe on the right of free speech and association, deeming ICCPR Article 7 prohibitions against "cruel, inhuman, or degrading treatment or punishment" to apply only to treatment deemed "cruel and unusual" under domestic constitutional law, declining to adhere to ICCPR Article 15, paragraph 1, and reserving the right to treat juveniles as adults under certain circumstances, notwithstanding the provisions of ICCPR Article 10, paragraphs 2(b) and 3, and Article 14, paragraph 4).
312. ICCPR, supra note 185, art. 25.
313. id. art. 2, para. 1.
314. Id. art. 2, para. 3 (emphasis added).
315. Id. art. 2, para. 2 (emphasis added).
316. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 314 cmt. d (1986) (noting that when the United States accedes to a treaty with a reservation, this statement has domestic legal effect, whereas other indications that the President or Senate assigned a distinct meaning to the treaty, such as declarations, are only pertinent to treaty interpretation in "the same way that the legislative history of a statute is relevant");
317. see also supra notes 215 & 217 (noting that treaty language controls unless it is inconsistent with the intent of the treaty's signatories).
318. Stefan A. Riesenfeld & Frederick M. Abbott, Foreword: Symposium on Parliamentary Participation in the Making and Operation of Treaties, 67 CHI.-KENT L. REV. 293, 296-97 (1991) (emphasis added);
319. see HENKIN, supra note 201, at 202 (describing the Senate's practice of declaring treaties non-self-executing as "'anti-Constitutional' in spirit");
320. Henkin, supra note 209, at 346 (arguing that non-self-execution declarations by the Senate may be unconstitutional);
321. see also Cinotti, supra note 196, at 1291 (contending that "the President and the Senate do not have constitutional authority to make a non-self-execution declaration legally binding");
322. Jordan J. Paust, Avoiding "Fraudulent" Executive Policy: Analysis of Non-Self-Execution of the Covenant on Civil and Political Rights, 42 DEPAUL L. REV. 1257, 1265 (1993) (quoting with approval the International Law Association's statement that it "may well be that a non-self-executing declaration ... does not bind the judicial branch");
323. John Quigley, The International Covenant on Civil and Political Rights and the Supremacy Clause, 42 DEPAUL L. REV. 1287, 1298 (1993) (arguing that courts, rather than the Senate, should determine whether or not a treaty is non-self-executing);
324. Charles H. Dearborn, III, Note, The Domestic Legal Effect of Declarations that Treaty Provisions Are Not Self -Executing, 57 TEX. L. REV. 233, 251 (1979) (arguing that declarations might be "an invalid attempt by the Senate to enact domestic legislation without the concurrence of the House").
325. U.S. CONST, art. II, § 2, para. 1 ("[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur ....").
326. INS v. Chadha, 462 U.S. 919, 958 (1983).
327. See sources cited supra note 227.
328. 247 F.2d 538 (D.C. Cir.), vacated as moot, 355 U.S. 64 (1957).
329. Id. at 541. Although called a "reservation" in the opinion, as will be seen from the discussion of this case, the court is actually talking about a declaration.
330. See id. (calling the Senate's statement a "reservation" but noting that the statement "made no change in the treaty" and was "not a counter-offer").
331. Id. at 541 (internal citation omitted).
332. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), is not to the contrary. In that case, the issue was whether the right to be free from arbitrary abduction and detention was protected under customary international law. The plaintiff did not sue directly under the ICCPR, but rather argued that the ICCPR's terms helped establish the relevant principle of customary international law for purposes of his Alien Tort Statute claim. The Court relied on the Senate's non-self-execution declaration in the ICCPR as one factor to support its conclusion that the ICCPR could not, by itself, establish a rule of customary international law. But the Court was not faced with (nor did it decide) the question of whether the Senate's declaration ipso facto prevents a plaintiff from suing directly under the ICCPR. Because the question in Sosa was not the binding effect of the Senate's non-self-execution declaration in determining whether die ICCPR establishes a private cause of action, the parties did not present the Court with (and it did not address) the separation of powers arguments questioning the Senate's authority to issue such declarations.
333. See, e.g., Reply Brief for the United States at 9, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (No. 03-339).
334. See, e.g., United States v. Stuart, 489 U.S. 353, 366-67 (1989) (looking to Senate reports and floor debates to aid in interpreting the Convention between the United States and Canada Respecting Double Taxation of 1942).
335. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700 (1988) ("Treaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.") (quoting Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32 (1943));
336. Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct., 482 U.S. 522, 534 (1987) (stating that treaty interpretation begins with the text of the treaty, but that the treaty's history and practical construction adopted by the parties are relevant);
337. Air France v. Saks, 470 U.S. 392, 400 (1985) (stating that "[i]n interpreting a treaty it is proper ... to refer to the records of its drafting and negotiation");
338. Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279, 1283 (9th Cir. 1985) (explaining that the most important factor in determining whether a treaty is self-executing is the language, purpose, and intent behind the treaty).
339. See generally Paust, supra note 227 (arguing that, based on the treaty's language, rights to remedies are not dependent on future implementing legislation).
340. ICCPR, supra note 185, art. 2, para. 1.
341. Id. art. 2, para. 3. (emphasis added).
342. Id. (emphasis added).
343. S. EXEC. REP. NO. 23, at 19 (1992) (emphasis added);
344. see also id. at 10 ("In general, the substantive provisions of the Covenant are consistent with the letter and spirit of the United States Constitution, and laws, both state and federal.").
345. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
346. Act of Sept. 12, 1966, Pub. L. No. 89-571, 80 Stat. 764 (1966) (codified at 28 U.S.C. §§ 119 & 134 (2000)).
347. Downes v. Bidwell, 182 U.S. 244, 374 (1901) (Fuller, C.J., dissenting).
348. See United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938) ("[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.").