This a working copy of selected parts of the book Citizenship and the American Empire by José E. Cabranes, as an educational tool for the historical value of its content. The author and publisher owns the Copyrights. It was copied on a scanner, and is being revised.


About the Author

José A. Cabranes, General Counsel of Yale University, was formerly Administrator of the Office of the Commonwealth of Puerto Rico in Washington and Special Counsel to the Governor of Puerto Rico. He is a member of the New York Bar and the District of Columbia Bar. In 1965 he received the J.D, degree from Yale Law School and in 1967 the M. Litt. (International Law) degree from the University of Cambridge. He was appointed Federal Circuit Court Judge.

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José A Cabranes
José A. Cabranes, uno de los Puertorriqueños más ilustres – Juez de Cirduito Federal

The acquisition of Puerto Rico, Guam, and the Philippines following the Spanish American War signaled the rise of the United States to the position of a world power. The American experience with empire was an important aspect of the global role assumed by this country following the “splendid little war” of 1898. This imperial experience — intervention in Cuba and occupation of the three former Spanish territories of Puerto Rico, Guam, and the Philippines. …

José A Cabranes

Porto Rico

Between 1900 and 1932, Puerto Rico was officially misspelled as “Porto Rico” — a result of the incorrect spelling of the island’s name in the English version of the Treaty of Paris. Treaty Of Paris, Dec. 10, 1898, United States Spain, 30 Stat. 1754, T.S. No. 343. This incorrect spelling was later introduced into formal usage by the Foraker Act. Foraker Act (Puerto Rico), ch. 191, 31 Stat. 77 (1900).

Jones aptly noted that Puerto Ricans had objected “that there does not even exist the pretext of changing the name to Americanize it, since porto is not an English but a Portuguese word.” Id.

It took the Puerto Ricans 32 years to persuade Congress that the island should have its rightful name restored. Congress changed the island’s name to “Puerto Rico” by joint resolution on May 17, 1932. Act of May 17, 1932, ch. 190, 47 Stat.

…”splendid little war”

The Spanish American’ War was called a “splendid little war” by Jiffin Jay, a leading expansionist of the time and United States Ambassador to England in 1898. In a letter to then Colonel Theodore Roosevelt of the Rough Ryders.

President McKinley and proponents of American imperialism (such as Henry Cabot Lodge, Theodore Roosevelt and Alfred Thayer Mahan), however, transformed the war into a quest for empire.

The targets of this new American imperialism were the islands of the Spanish Empire in the Caribbean and the Pacific, Cuba, Puerto Rico, the Philippines, and Guam. A policy of forcible annexation such as was affected Puerto Rico, Guam, and the Philippines was not possible in the case of Cuba because of the self denying proclamations that accompanied the American call to arms.


US President 1917
President McKinley

President McKinley

On April 11, 1898, President McKinley sent an emotional and stirring message to the Congress announcing that American efforts to end the war between Spain and the insurgents in Cuba had failed. 55 CONC. REC. 3699 (1898) (President’s message). After describing recent developments, the President appealed to Congress to intervene, stating that [t]he only hope of relief and repose from a condition which can no longer be endured is the enforced pacification of Cuba. In the name of humanity, in the name of civilization, in behalf of endangered American interests, the war in Cuba must stop. “I ask the Congress to authorize and empower the President to take measures to secure a full and final termination of hostilities …, and to secure in the island the establishment of a stable government . . ., and to use the military and naval forces of the United States as may be necessary for these purposes.”



Congress acceded to the President’s request, but not before his Democratic critics in the Senate managed to convince a majority to adopt a resolution providing “[t]hat the people of the Island of Cuba are, and of right ought to be, free and independent.” H.R.J. Res. 233, 55th Cong., 2d Sess., 30 Stat. 738 (1898). Another “antiimperialist” resolution was introduced and adopted at the request of an expansionist, Senator Henry M. Teller of Colorado. It provided ”[t]hat the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over . . . [Cuba] except for the pacification thereof, and asserts its determination, when that was accomplished, to leave the government and control of the Island to its people.”

Senator Teller said that he had had the resolution introduced to make it impossible for any European government to say, “when we go out to make battle for the liberty and freedom of Cuban patriots, that we are doing it for the purpose of aggrandizement for ourselves or the increasing of our territorial holdings.” He wished this point made clear inference. S. Doc. No. 62, 55th Cong., 3d Sess.


The Teller resolution made it clear that the United States would not annex Cuba. Expansionists, supra note 2, at 230. It did not, however, bar the United States from seeking to annex the other former Spanish possessions (Puerto Rico, Guam, and the Philippines), and cession of these three territories to the United States was demanded by the American peace commissioners at the Paris peace in regard to Cuba Colonial Experiment.


Spain acquiesced in these demands in the Treaty of Paris. Treaty of Paris, supra, note 1, arts. II




The reaction to American occupation in each of the three formerly Spanish insular territories foreshadowed each people’s receptiveness to American rule and donotlessly shaped the history and character of colonial administration in each of the territories. Although not as well known at first, the Filipinos’ aspirations for independence were no less firm than those of the Cubans. On the day before the Senate voted on the Treaty of Paris, the drama of the decision was complicated and intensified by the arrival of newer than the Filipinos had taken up arms in open revolt against the United States. There could he no more doubt of their desire for freedom American new role in world affairs: an additional sense of mission and or the United States was now in the same position formerly occupied by discredited Spain.

The military occupation of the entire Filipino archipelago, ordered by President McKinley on December 21, 1898, had served to touch off a Filipino insurrection …. The insurrection, … lasted three sordid years.

Thus a movement that had started as an effort to liberate the Cubans [the Spanish American War] ended in a drive to subjugate the Filipinos.



In marked contrast, Guam and Puerto Rico generally welcomed the occupying forces and, for a considerable time, did not resist American rule.


Puerto Rico

In 1898, Puerto Rico, the smaller Spanish colony in the Caribbean, had a less developed sense of nationhood than Cuba. Throughout the latter part of the nineteenth century, however, many Puerto Rican nationalists collaborated with Cubans in the struggle to liberate their respective islands from Spanish colonial rule. Among these nationalists were some of the most illustrious figures in Cuban and Puerto Rican history — met such as Jose Martí, Ramón Emeterio Betances and Eugenio Maria de Hostos. An anecdote illustrates their committment to one another’s cause: “When the Puerto Rican poet Pachin Marín joined the Cuban Revolutionary Party, Jose Martí asked him whether he was Cuban. ‘Yes, sir,’ said Marín. ‘From which province?’ asked Martí. ‘From the province of Puerto Rico,’ replied Marín.



While Cuban nationalists waged war for years against Spanish colonialism, the Puerto Rican political leadership had negotiated a form of local self government or “autonomy” under an autonomic charter granted in 1897 by the Spanish Cortes.

(… a certain nobility of purpose; a belief in the superiority of American institutions and values; an insensitivity or indifference to peoples and values imperfectly understood; and an ambivalence about the exercise of power combined with a deeply rooted innocence.)


imperial expansion,

The expansion of American power and influence precipitated a great national debate on imperialism, a debate that moved the nation for several years before and after the Spanish American War and dominated the presidential election campaign of 1900. The electoral victory of President William McKinley settled the controversy in favor of imperial expansion, but the issue that remained was whether racially and culturally distinct peoples brought under American sovereignty without the promise of citizenship or statehood could be held indefinitely without doing violence to American values — that is, whether certain peoples could be permanently excluded from the American political community and deprived of equal rights. Congress succeeded in resolving the citizenship question only after several years of debate. Ultimately, the two main territories were treated differently: This constitution or autonomic charter was granted to the people of Puerto Rico to counter the “separatist feelings [that] were stirred in Puerto Rico” as a result of the Cuban war of independence.

It was negotiated by Luis Muñoz Rivera on the Puerto Rican side and Praxedes Sagasta on the Spanish side. Gordon Lewis has characterized Muñoz Rivera’s middle road policy as `Opportunism dressed Up as a wise empiricism.’ G. LEWIS, supra, at 64. Although this experiment with political autonomy was aborted by the American invasion of July 25, 1898; Puerto Rico’s leaders generally held high hopes for achieving substantial self government under the American flag.

Although American colonial administration soon disappointed many Puerto Ricans, see, e.g., Muñoz Rivera, El “Bill” Foraker, “there was no resistance to American rule in Puerto Rico that is even remotely comparable to the open warfare and persistent nationalist agitation that arose in the Philippines.”

Although [t]he election of 1900 was not so much a ratification of colonialism as a repudiation of William Jennings Bryan,” it nevertheless diminished the importance of the issue of imperialism for the American people. As a result of McKinley’s victory, the expansionists were now relatively free to pursue their goals in Puerto Rico and the Philippines. For useful discussions of the significance of the issue of imperialism in the election of 1900, eventual independence to the Filipinos, but the Jones Act of 1917 conferred American citizenship on the Puerto Ricans.


collective naturalization

The collective naturalization of the Puerto Ricans one year after the Filipinos were promised their independence was a water shed in American colonial history and quite probably the turning point in Puerto Rico’s political development. Having agreed in 1916 to grant independence to the larger and more intractable of the new insular territories, it is significant that Congress then chose to assert the permanence of the existing relationship with the smaller and more “loyal” territory.


American colony

Conferring United States citizenship’ on the Puerto Ricans, however, did not alter the island’s status as an American colony.


… The Civil Rights Act of 1866

By bestowing citizenship upon the inhabitants of the island, Congress proclaimed the future of Puerto Rico to be something other than national independence and thereby sought to resolve the question how the United States would deal with this part of its empire. Accordingly, the citizenship granted was not complete; it was never intended to confer on the Puerto Ricans “any rights that the American people [did] not want them to have.” The very word “citizenship” suggested equality of rights and privileges and full membership in the American political community, thereby obscuring the colonial relationship between a great metropolitan state and a poor position of aliens, subjects or even nationals. Dred Scott had been held not to fall within the term “people of the United States,” though he was clearly a subject of the United State — that is, a person owing allegiance to the United States and not to any other nation. The Civil Rights Act of 1866 and the fourteenth amendment had abolished the distinction between citizen and subject as far as black persons were concerned. However, the forcible annexation of formerly Spanish insular territories once again created a class of persons who clearly owed allegiance to the United State (as a result of the transfer of sovereignty) but who arguably were not citizens of the United States. The term national, often used interchangeably with the word citizen when referring to (or defining) the status of an individual in relation to the state, evolved into a term broader in scope than citizen. “The term citizen, in its general acceptation, is applicable only to a person who is endowed with full political and civil rights in the body politic of the state.”



National, on the other hand, include “a person who, though not a citizen, owes permanent allegiance to the state and is entitled to its protection.”

Based on this distinction, although all citizens are nationals, all nationals are not citizens. The legal construct of national served the nation’s imperial purposes; the most notable examples of persons who were nationals of the United States though not citizens (in the absence of positive action by Congress) were the native peoples of the new colonial possesions of the United States.


Foraker Act

The Foraker Act granted the inhabitants of Puerto Rico the status of United States nationals. It provided, inter alia, that all inhabitants continuing to reside [in Puerto Rico] . . . who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety nine and then resided in Porto Rico, and their children born subsequent thereto, shall be deemed and held to be citizens of Porto Rico, and as such entitled to the protection of the United State, except such as shall have elected to preserve their allegiance to the Crown of Spain.

Foraker Act (Puerto Rico. Although the “citizens of Porto Rico” were not citizens of the United States, they were nevertheless not aliens, and they were expected to transfer their allegiance from Spain to the United State and receive in return the protection of the United States. The status of national, as distinguished from citizen, became a convenient construct for those who favored territorial expansion but did not wish to make the people of the new territory citizens of the United States or otherwise suggest that they might aspire to equality under the American constitutional system.

United States passports could be issued to “persons . . . owing allegiance, whether citizens or not, to the United States, including, of course, Puerto Ricans”.

overseas dependency. But the creation of a second class citizenship for a community of persons that was given no expectation of equality under the American system had the effect of perpetuating the colonial status of Puerto Rico.

Puerto Rico’s anomalous status later made it possible to devise an unusual series of relationships with the United States

The story of how and why Puerto Ricans became American citizens is not, therefore, without contemporary significance, nor is it of interest only to Puerto Ricans. Quite apart from the persistent debate on Puerto Rico’s political relationship to the United States, American citizenship has vitally afected the place of Puerto Ricans in the American political system and economy. American citizenship made possible the mass migration on Puerto Ricans to the North American continent in the years allowing the Second World War and today affects the character of the political and constitutional claims asserted in the continental United States by Puerto Ricans.”

American legislators did not anticipate that extending citizenship to the inhabitants of Puerto Rico would lead to the substantial northward migration of the forties and fifties.


as a token of the permanence

… the United States government extended American citizenship to the Puerto Ricans as a token of the permanence of the island’s political relationship to the United States. Puerto Rico and the United States will undoubtedly continue to be deeply affected by that legislation.


two versions of popular history

… In Puerto Rico, two versions of popular history have coexisted for more than half a century.



… statehood logical and inevitable

David Vidal, writing in The New York Times, notes that “[tlhe granting of citizenship in 1917 on United States initiative did not change the status debate, but to some it made statehood logical and inevitable. To this day, that is a prime argument offered in favor of statehood.”

1917 “[i]t became a yearning of the Porto Ricans to be American Citizens . . . and [the Jones Act of 1917] gave them the boom.”


“reasons of war”

The other version of popular history, which seems to enjoy greater prominence in the literature and lure on the subject, claims that United States citizenship was imposed upon the Puerto Ricans. It is frequently suggested that the grant of citizenship was dictated by strategic necessities of World War I or by the desire to enlist Puerto Rican youths into the United States armed forces. Leaders of the island’s independence movement and others have alleged that “reasons of war” dictated the congressional decision to confer United States citizenship on the Puerto Ricans. In Puerto Rico there is Balzac v. Porto Rico, 258 U.S. at 308. Felix Frankfurter, 3erving in 1914 as Law Officer of the Bureau of Insular Affairs of the Department of War, saw the grant of American citizenship “as a means of removing the great source of political unrest in the Island.” F. Frunkfurter, The Political Status of Porto Rico 7 (March 11, 1914) (memorandum of law to Secretary of War in archives of the United States.

The literature claiming that American citizenship was extended to the people of Puerto Rico as a result of Puerto Rican demands or yearnings is, understandably associated with proponents of one or another form of permanent union of the island with the United States through statehood or continued commonwealth status. In this literature, there is a tendency to describe citizenship as having been “granted” or “conferred” (concedido) in 1917 by Congress, terms which suggest a response by Congress to expressions of Puerto Rican aspirations or longings.

The late Pedro Albizu Campos, the long time leader of the Nationalist Party of Puerto Rico, claimed that “reasons of war” (razones de guerra) accounted for the extension of United States Citizenship to the Puerto Ricans…


Vicente Geigel Polanco

… to this day a widely held belief, expressed in 1928 by a leading Puerto Rican writer, who later became attorney general, Vicente Geigel Polanco, that “[t]he ‘conferral’ of [United States] citizenship was not an act of justice, but rather, an imposition of the American government.”


assumptions are unwarranted

These conflicting versions of the central event of Puerto Rico’s twentieth century political history confirm the observation of the British historian Richard Pares that in colonial societies “[g]ood history cannot do so much service as money or science; but bad history can do almost as much harm as the most disastrous scientific discovery in the world.” Both versions assume that Puerto Rican opinion on the subject, as expressed by the island’s leaders, was clearly articulated and readily understood in the executive and legislative branches of the American government. Both versions assume that the leading protagonists—the United States Congress and the island’s leadership—acted with a full appreciation of the implications of the citizenship legislation. These assumptions are unwarranted. The Puerto Ricans neither yearned for United States citizenship nor did Congress intend to impose it upon them. As is often the case, the truth lies somewhere between contradictory historical theses.


war against Germany

The 1917 legislation extending United States citizenship to the people of Puerto Rico was adopted a month before the Congress resolved to recognize the existence of a state of war against Germany.There is no evidence, however, that the timing of the two explicitly state that military conscription was a factor that motivated Congress to extend United States citizenship to the Puerto Ricans, he clearly suggests that there is a direct link between citizenship and compulsory military service, and that the former was the predicate for the latter actions by Congress was anything but coincidental. 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. Indeed, the number of Puerto Ricans who served in the First World War appears to have been quite small, and much of that service was in the relative backwater of the Panama Canal Zone. Moreover, the incorporation of a force of Puerto Rican soldiers into the United States Army long antedated the war; a Puerto Rican regiment was first organized in 1899.

By extending United States citizenship to the Puerto Ricans after promising independence to the Filipinos, Congress intended to do little more than proclaim the permanence of Puerto Rico’s political links with the United States. The apparent readiness of the Puerto Ricans to accept a continuing association with the United States — confirmed by the absence of sustained and systematic opposition to the proposal or significant resistance to colonial rule like adopted in early 1917 rather than during the previous summer, however, was the result of a crowded agenda.


… during World War I

The only Puerto Rican unit of any significance during World War I was the Puerto Rico Regiment of Infantry, which served in the Canal Zone from May 1917 through March 1919. This unit was originally organized in 1899 as a provisional regiment. Id. In 1908, its two batalions were made part of the United States Army. An Act Fixing the Status of the Porto Rico Provisional Regiment of Infantry, ch. 201, 35 Stat 392 (1908). Although a Puerto Rican division was contemplated during the war, it was never organized. Instead, the War Department ordered the organization of a provisional division. The men for this division were to come from the first Puerto Rican draft. On October 1, 1918, over 10,000 Puerto Rican officers and men were organized into the Provisional Tactical Brigade. Less than two months later, however, this unit was ordered disbanded.

In part, at least, the lack of resistance displayed by the Puerto Ricans upon the transfer of sovereignty is accounted for by their expectation that the Americans would treat them benevolently


… the draft during the Civil War

In any event, American citizenship is not a prerequisite to conscription: aliens were made subject to the draft during the Civil War, the Spanish American War and World War 1. The United States did not have to confer American citizenship on the people of Puerto Rico in order to be able to draft Puerto Rican men during World War 1. These men would have been subject to conscription into military service even if they had remained “citizens of Puerto Rico.” The natives of Puerto Rico had for years been considered nationals of the United States—that is, they were noncitizens, although clearly not aliens, who owed allegiance to the United States.

Noncitizens under the jurisdiction of the United States first became subject to the draft during the Civil War. The Civil War Conscription Act of 1863 made “all able bodied male citizens . . ., and persons of foreign birth who shall have declared on oath their intention to become citizens . . . able to perform military duty in the service of the United States….” Civil War Conscription Act.

Thus, by the time that the United States acquired Puerto Rico, precedents had been set for the induction of noncitizens into the American armed forces.

Noncitizens were once again made subject to the draft in 1917. The selective service statute of that year authorized the President to raise an army of several hundred thousand men. If necessary, the President was authorized to draft the required men, “[s]uch draft . . . [to] be based upon liability to military service of all male citizens, or male persons not alien enemies who have declared their intention to become citizens.”


“citizens of Porto Rico.”

… It is clear that these statutes would have applied to the men of Puerto Rico even if they had not become American citizens but had remained “citizens of Porto Rico.” Puerto Ricans could not have claimed the nondeclarant alien exemption granted by the statute because they were not aliens but nationals, see Gonzales v. Williams, 192 U.S. 1,

Spain had relinquished her claim to sovereignty over Puerto Rico by the Treaty of Paris, which left “[t]he civil rights and political status of the native inhabitant . . . to . . . be determined by the Congress.” Treaty of Paris, supra note I, arts. 11, IX. Undoubtedly, the United States, as the sovereign authority in Puerto Rico, had the power to subject these “native inhabitants” to the military draft.


… the 288 persons who chose not to become citizens

As a matter of fact, the men among the 288 persons who chose not to become citizens of the United States in accordance with the March 2, 1917 statute collectively naturalizing the natives of Puerto Rico were not exempted from military duty under the Selective Service Act. Finally, noting in the annals of Congress would suggest that the collective naturalization of the Puerto Ricans was a matter connected in any way with military concerns.


the idea had been under active and serious consideration in Congress since 1900

The idea of American citizenship for Puerto Ricans did not arise suddenly in the Congress that enacted the Jones Act of 1917. Legislation embodying the idea had been under active and serious consideration in Congress since 1900. Inclusion of the citizenship proposal in a bill to reorganize the territorial government of Puerto Rico—a long overdue liberalization of the colonial regimesupported by both major national political parties in the United States— largely explains its timing and success. One other factor doubtlessly played a role in the timing of the legislation: the adoption in late 1916, after prolonged debate, of a bill to organize the territorial government of the Philippines, which for the first time promised eventual independence to the Filipinos. Only after Congress had settled the destiny of the largest of the American colonial territories was it ready to turn to the question o Puerto Rico’s political fate and decide that matter free of the fear that its actions in Puerto Rico would limit its options in the Philippines.

The Adjutant General of Puerto Rico concluded “that the people of Puerto Rico, as a whole, responded most nobly and loyaly [sicl to the support of the United States [during World War I].”


… congressional history

No effort is here made to treat the subject in terms of public pronouncements on the subject in Puerto Rico. Although such local public statements are relevant to a comprehensive history of the island’s political history, they do not, standing alone, contribute to an understanding of what happened in the one forum that truly mattered in the colonial setting—the Congress of the United States. An understanding of the congressional history of the subject may affect not only perceptions of congressional purpose and intent, but also perceptions of the historic role of the island’s contemporary leadership. Perhaps most importantly, an understanding of the situation in the United States Congress in the early part of this century will provide insight into the origins of some of the contemporary political status problems of Puerto Rico. The legislative history below will begin with an examination of the events leading to the enactment of the Foraker Act, the first organic law for Puerto Rico. Part lll will discuss the Supreme Court decisions upholding the Foraker Act and trace the subsequent development of legislative proposals that culminated in the Jones Act of 1917, which, among other things, extended American citizenship to the people of Puerto Rico. The final section presents brief concluding remarks.

The status of the inhabitants of Puerto Rico—and, of course, the political status of the island itself—was a matter of concern in Congress from the time the island became an object of American interest during the hostilities with Spain in the late 1890’s. The controversy over American aims in interceding in the conflict in Cuba led Congress to adopt the Teller Resolution, disclaiming “any disposition or intention to exercise sovereignty” was over Cuba and asserting the determination of the United States eventually to “leave the government and control of the Island to its people.” The sponsor of the resolution, Senator Henry M. Teller of Colorado, indicated that this pledge was designed to avoid any suggestion by European powers that “when we go out to make battle for the liberty and freedom of Cuban patriots . . . we are doing it for the purpose of aggrandizement for ourselves or the increasing of our territorial holdings.” This selfdenying resolution, which embodied a political compromise found satisfactory by Theodore Roosevelt and other proponents of a “large policy,” quite clearly did not apply to other Spanish possessions, including Puerto Rico.’


… trouble free occupation

During the invasion and trouble free occupation of Puerto Rico on July 25, 1898, General Nelson A. Miles, commanding officer of the United States forces, issued a proclamation to the people of Puerto Rico that suggested that the island would have a direct and lasting link to the American political system. This proclamation asserted that American forces, “bearing the banner of freedom.”…brought to the Puerto Ricans “the fostering arm of a nation of free people, whose greatest power is in justice and humanity to all those living within its fold” … and promised to “bestow upon [them] the immunities and blessings of the liberal institutions of our Government . . . [and] the advantages and blessings of enlightened civilization,”


General Miles’ proclamation

The implication of General Miles’ proclamation, that Puerto Rico would become part of a new United States empire, was confirmed by the terms of the treaty of peace signed in Paris in 1898. Under the provisions of the treaty, Spain merely abandoned “all claim of sovereignty over and title to Cuba,” ceded Puerto Rico, Guam, and the Philippine Islands to the United States. With respect to the question of citizenship, the treaty distinguished.

Between “Spanish subjects, natives of the Peninsula” resident in the ceded territories, who were permitted to remain Spanish subjects upon the making of an appropriate declaration within a year’s time, and “native inhabitants of the territories” who were not given this option. In the “overseas province” of Puerto Rico, the people of which had all been Spanish citizens, a clear legal distinction was thus drawn between those born in the metropolitan state and the much larger group of criollos or creoles who were “native inhabitants of the territories.” In addition, the treaty provided that their “civil rights and political status . . . [would] be determined by the Congress.” For the first time in American history, “in a treaty acquiring territory for the United States, there was no promise of citizenship . . . [nor any] promise, actual or implied, of statehood. The United States thereby acquired not ‘territories’ but possessions or ‘dependencies’ and became, in that sense, an ‘imperial’ power.” 02 Prior to the Treaty of Paris of 1898, “[e]very treaty by which territory was ceded to the United States . . . [had] contained some provision whereby either all or some of the inhabitants of the ceded territory could, either immediately or ultimately, be admitted to United States citizenship.” In each of these earlier instances of territorial expansion, the grant or promise of citizenship to the people of a territory had clearly been regarded as a mark of the permanence of the annexation and as an effective promise of eventual incorporation of the territory as a state of the American Union. In the aftermath of the Spanish American War, neither Congress nor the courts were persuaded by the argurment that the inhabitants of these newly acquired possessions had either automatically become United States citizens upon annexation or that Congress was constitutionally compelled to confer citizenship upon them as a condition of the exercise ot sovereignty. The United States had become a colonial power.


colonial power

The original plans of the McKinley administration and the Republican congressional leadership for Puerto Rico seemed to call for the island’s “interpretations” of the United States — that is, annexation of Puerto Rico, as integral part of the United States and the bestowal of a constitutional and political status comparable to other American territories destined for statehood. Incorporation was implicit in the proposals of President McKinley’s commission to study conditions in Puerto Rico: this report, completed in 1899, recommended free trade between Puerto Rico and the United States and the grant of United States citizenship to the island’s inhabitants. The military government in Puerto Rico, which presumably reflected the position of the national administration, called for the adoption of the free trade principle, and, in a message to Congress in December 1899, President McKinley asked for tree trade legislation. Although the President did not explicitly advert to the question of United States citizenship for Puerto Ricans in his message, this omission does not necessarily suggest that citizenship was not part of the administration’s program. At the time it was widely believed that the inhabitants of the territories ceded by Spain had automatically become citizens of the United States, as President McKinley originally stated that it was Congress’ “plain duty to abolish all customs tariffs between the United States and Porto Rico.”


… annexation or incorporation

Citizenship was far from anathema to the McKinley administration’s spokesmen in Congress who promoted and pursued the expansionist policy leading to the acquisition of the Philippines and Puerto Rico. This much is well illustrated by the original views expressed by congressional leaders on colonial questions. Representative Sereno E. Payne and Senator Joseph B. Foraker, who undoubtedly expressed the prevailing Republican opinion on the disposition of the new territories, both originally favored free trade between Puerto Rico and the United States—a position that implied the annexation or incorporation of the island as an integral part of the United States. Indeed, Senator Foraker almost immediately proposed legislation explicitly providing for the grant of American citizenship to Puerto Ricans.70

Within a short period of time, however, both Payne and Foraker reversed their positions on free trade, and Foraker rather suddenly abandoned his citizenship proposal. These moves were generally assumed to reflect a change in the administration’s policy. The reversal prompted repeated requests on the floor of the House and the Senate for a clarification of President McKinley’s position. Even some expansionist Republicans were outraged by what they considered a surrender to the antiimperialist opposition. It was reported to the Senate, for example, that the Republican Governor of Rhode Island, Elisha Dyer, had termed the raising of a tariff barrier on trade with Puerto Rico one of the most “outrageous transactions” and a thread of loyalty to the principles enunciated by the Republican Party. The opposition repeatedly chided the Republican leadership in Congress about the difference between their original proposals, and those of the President, and the revisions treating Puerto Rico as something other than an integral part of the United States and denying citizenship to its inhabitants.


Senator Foraker

Senator Foraker and Representative Payne were the majority leaders of the Senate and House, respectively.


American citizenship Bill for Puerto Rico, 1900

In response to President McKinley’s annual message to Congress in December 1898, Senator Joseph B. Foraker of Ohio, Republican chairman of the Senate Committee on Pacific Islands and Porto Rico, introduced S. 2264, a bill providing for American citizenship for the Puerto Ricans and for the establishment of a civil government. S. 2264, 56th Cong., 1st Sess., 33 CONC. REC. 702 (1900). (Puerto Rico was under military government from 1898 until May 1, 1900.


free trade Bill, 1900

In the House, Representative Sereno E. Payne, Republican chairman of the House Ways and Means Committee, submitted H.R. 6883, a bill providing for free trade between the United States and Puerto Rico. H.R. 6883, 56th Cong., Ist Sess. 33 CONC. REC. 1010 (1900).

The principal cause for this dramatic policy change was apparently the concern that legislation for Puerto Rico would be Senator George L. Wellington of Maryland termed the changes in the proposed legislation “political some assault the like of which had not been witnessed in a generation. He added that despite the President’s recommendation for free trade between the United States and Puerto Rico, “in a mysterious manner it began to be whispered that [a IS! duty on this trader … was satisfactory to the Administration.” Id.


… menacing problem of the Philippines

a precedent for the larger and more menacing problem of the Philippines. It was also feared that the Puerto Rico legislation would be the subject of portentous constitutional litigation challenging congressional power to regulate trade with and migration from the insular territories, as well as the capacity of the legislative branch to determine whether Puerto Ricans and Filipinos would become United States citizens.

Concern about the possible effects of making the Philippines an integral part of the United States was not at all new in 1900. This concern had been the basis of much of the vocal opposition to McKinley’s policy toward Spain and to the original decision to require the cession of the Philippines to the United States as part of the peace settlement. Indeed, only a week after approving the Treaty of Paris by the slimmest possible margin 67— one vote above the necessary two thirds majority—the Senate had adopted a resolution declaring that it was “not intended to incorporate the inhabitants of the Philippine Islands into citizenship of the United States” nor “to permanently annex said islands as an integral part of the territory of the United States,” but rather, to prepare the Philippines for “local self-government, and in due time to make such disposition of said islands as will best promote the interests of the citizens of the United States and the inhabitants of said islands.” Although the House failed to act upon this Senate initiative, it is an important and revealing expression of congressional sentiment at the zenith of the expansionist movement.


plenary power to legislate for the government of the new territories,

In enacting legislation for Puerto Rico, Congress sought to establish its plenary power to legislate for the government of the new territories, and to ensure its ability to deny American citizen ship to the Filipinos and to regulate the entry of Filipinos and their products into the United States. Thus, the members of Congress were eager to legislate for Puerto Rico in a manner that would leave.


sugar trust, the tobacco trust, and the whisky trust

Why, then, was the change made? Well, it is said, and not denied, that the majority of the Ways and Means Committee made this change at the request of the sugar trust, the tobacco trust, and the whisky trust. I believe this to be the truth about the matter.

The agents of the trusts dictated this unjust discrimination against the citizens of Puerto Rico. “You dare not disobey the trusts”. They own and control the Republican Party.


Congress’ powers

no doubt about Congress’ powers under the Constitution to do with the newly acquired territories as it wished. Congressional authority to govern and administer the nation’s territories during the century of expansion across a great continent had rested on constitutional guidance no more clear or instructive than the terms ot the “territorial clause” of the Constitution: “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. But in exercising its broad and virtually unlimited power over territories, Congress before 1898 had invariably legislated for people who were clearly a part of a definable American political community—people who were American citizens or who had been promised citizenship, and who had every expectation that their territory would, in time, be admitted as one of the states of the Union. Clearly, the Puerto Rican situation was altogether novel; in fact, many respected leaders had serious doubts about the United States’ course of action. The legislation for the establishment of a civil government in Puerto Rico was the first opportunity to legislatefor one of the newly acquired insular territories; it was simply an opportunity not to be missed.

Until the middle of the nineteenth century, however “the chief reliance for the power to govern the territories had been the grant of authority contained in Article IV, Section III.” Id. 433. The absolute congressional authority “to determine the form of political and administrative control to be erected over the Territories, and to fix the extent to which their inhabitants shall be admitted to a participation in their own government” did not necessarily “carry with the absolute control of the Federal legislature over the civil rights—the private rights of person and property—of the inhabitants of the Territories.” Balzac v. Porto Rico, 258 U.S. 298 (1922) (United States citizens in Puerto Rico could not assert the right to trial by jury under the sixth amendment).


important conclusions

After an extensive review of precedents concerning the definition of “United States” and the meaning of the provisions of the Constitution granting Congress the power “to dispose of and make all needful Rules and Regulations in The Territory or other Properly belonging to the United States,” the Committee offered some important conclusions, the basis for its favorable report on the substitute bill:

First: That upon reason and authority the term “United States,” as used in the Constitution, has reference only to the States that constitute the Federal Union and does not include Territories.

Second: That the power of Congress with respect to legislation for the Territories is plenary.

Third: That under that power Congress may prescribe different rates of duty for Puerto Rico from those prescribed for the United States.


Wholly inconsistent with the theory… The blessings

The Committee’s minority report expressed a different view— one that was to be echoed throughout the United States in the months to come. The substitute Payne bill, according to this perspective, was wholly inconsistent with the theory and form of our Government. The exercise of such power is pure and simple imperialism, and against it we enter our most solemn protest…. The blessings of free government rest alike upon all of our people, whether in the thirteen original States or in the youngest member of the Union or in the newest acquired territory. It does not matter in which form territory is acquired; it is to be held under our Constitution with the object of finally being admitted into the Union as a State.

The minority report stated for the first time the bewilderment of some members of Congress concerning the apparent change in the administration’s position. The dispute within the Committee on Ways and Means on this issue was renewed on the floor of the House of Representatives on February 19, 1900, when the House considered the substitute bill.

No sooner had Representative Payne, in his opening remarks on the trade bill on the floor of the House, adverted to the good works to be done in Puerto Rico with the monies raised by the projected tariff than the momentous question of citizenship was put to him by Representative Pierce of Tennessee: “Does the gentleman believe that as soon as the ratification of the treaty of peace was made that the Puerto Ricans were citizens of the United States or does he think that they fell outside of the Constitution”. This troublesome question would appear and reappear throughout the debate on the first major legislation for Puerto Rico and would not finally be answered until the Insular Cases were decided more than a year later. It was a question that Representative Payne wanted to avoid; he succeeded in doing so temporarily by invoking the narrow purposes of his bill: “[T]he gentleman from Tennessee ought to know that that is a question that has nothing to do with sugar.”


Puerto Rico … differently from the Philippines

Clearly the majority leader of the House shared the view of various colleagues who wanted, from the outset, to treat Puerto Rico somewhat differently from the Philippines by offering the prospect of political integration with the United States without establishing a precedent for dealing with the Philippines. American citizenship for Puerto Ricans was a possibility, in Representative Payne’s view, but he was prepared to acquiesce in the administration’s decision that citizenship was not appropriate in 1900.

Payne’s words: “Keep them all in leading strings until you have educated them up to the full stature of American manhood, and then crown them with the glory of American citizenship.”‘


All in favor of American Citizenship to Puerto Rico

A disposition to confer American citizenship on the inhabitants of Puerto Rico and to treat the cession of the island as a permanent annexation was evident among both proponents and opponents of the Payne bill; indeed, more congressmen spoke out in favor of citizenship than against it. Nevertheless, as Representative New lands of Nevada, who had dissented in Committee, noted, the Republican majority feared the establishment of a precedent which [would] be invoked to control our action regarding the Philippines later on; such action embracing not simply one island near our coast, easily governed, its people friendly and peaceful [i.e., Puerto Rico], but embracing an archipelago of seventeen hundred islands 7,000 miles distant, of diverse races, speak ing different languages, having different customs, and ranging all the way from absolute barbarism to semi-civilization.


annexationist designs

Although annexationist designs on Puerto Rico were shared by “imperialists” and “anti-imperialist’s” alike, the record of the congressional debates in 1900 reveals a widespread and rather special disquietude concerning the dangers of placing the inhabitants of the islands in the Orient on an equal constitutional footing with Americans. Representative Newlands, who noted that the earlier exclusion of Chinese immigrants from the United States had been based upon the realization by “thinking men . . . that American civilization was in danger,” felt that a similar threat was posed by the Filipinos. He perceived no such danger, however, in the case of the inhabitants of other insular possessions, including Puerto Rico:

With reference to Puerto Rico we all agree that no great danger to the industrial system of this country can come from the acquisition of Puerto Rico. It lies there on a line to the Gulf, on the route to the future Nicaragua Canal, and comes legitimately within our scheme of expansion involving continental territory on the northern hemisphere and adjacent islands. Hawaii, Puerto Rico, and Cuba, we all—both imperialists and anti imperialists— agree, constitute a part of legitimate expansion of both our territory and our Government.

As to these islands in the Philippine group, 7,000 miles away, we all agree, whatever may have been the mistakes of commission or omission in the past . . . we only differ as to the ultimate disposition of those islands, as to whether they shall remain permanently a part of the United States or whether we shall hold them in trust for their own people and ultimately grant them independence. This is the only contention.

It can be easily imagined what will be the effect of putting inside of our governmental and industrial system 9,000,000 people possessing a high degree of industrial aptitude and accustomed to a scale of wages and mode of living appropriate to Asiatics. Such are the evils of incorporating the Philippines into our governmental and industrial system ….’

Race, civilization, distance, and economic considerations formed the basis for the distinction made in Congress between Puerto Rico and the Philippines. Expressions of concern about the annexation of Oriental peoples were commonplace. The statement by Representative Dalzell that he was unwilling “to see the wage earner of the United States, the farmer of the United States, put upon a level and brought into competition with the cheap half slave labor, savage labor, of the Philippine Archipelago” was greeted by loud applause in the House. Other congressmen echoed his sentiments. These statements were in marked contrast to the usual descriptions of the Puerto Ricans.

Representative Newlands specifically stated that “[the Puerto Rico question [was] linked with the Philippine question. Id. 1994. He went on to say that “[t]he latter presents the only difficulty in the way of the solution of the relations of our newly acquired islands.” Id.


plan to annex the Dominican Republic

It is not surprising that racism was a significant factor in the debates on the disposition of the insular territories acquired from Spain. A generation earlier the Grant administration’s plan to annex the Dominican Republic had failed largely because of apprehensions about the race and “civilization” of its people

The relatively tender treatment accorded to the Puerto Ricans may be partially explained by the representations made in Congress concerning the racial composition of the island. For example, Representative Payne readily accepted questionable census reports showing that whites—”generally full blooded white people, descendants of the Spaniards, possibly mixed with some Indian blood, but none of them [of] negro extraction”‘ outnumbered by nearly two to one the combined total of Negroes and mulattoes’, Hawaii did not constitute a precedent for the annexation of a territory populated by people of a different race. Indeed, opponents of the annexation of the Philippines had actively supported the annexation of the Hawaiian Islands in 1898 and would support annexation of Puerto Rico. Representative Newlands, who sponsored the resolution that annexed the Hawaiian Islands, made this clear during the 1900 debate on Puerto Rico:

There were no complex problems in regard to the people occupaying those islands. Only 100,000 people occupied them. They had been practically assimilated and were in sympathy with our institutions and our whole system of government. Their acquisition involved no industrial derangement in this country….”‘


Puerto Rico [would] become a part of the Union

Whatever might be the final disposition of the matter of the Philippines, it was “evident that both of the political parties of the “country [were] now in substantial agreement that Puerto Rico [would] become a part of the Union.” Nevertheless, it was suggested that in legislating for the government of Puerto Rico it seemed advisable to avoid any action which would impair the United States’ flexibility in its future policy toward the Philippines, and in particular, action from which it might be inferred that Congress accepted the proposition that all the insular territories acquired from Spain were automatically “a part of” the United States and their peoples citizens ot the United States fully entitled to all the guarantees of the Constitution.


of a higher grade of civilization than the Filipinos

The Puerto Ricans’ lack of resistance in the face of invasion and occupation and the relative proximity of the island to the United States formed additional grounds for distinguishing between the Philippines and Puerto Rico. Representative Jacob H. Bromwell, an Ohio Republican, who had little doubt that the Puerto Ricans were “as a whole, of a higher grade of civilization than the Filipinos,” I’a noted that “[t]he circumstances surrounding the Philippines and Puerto Rico are very different” and compelled different treatment.

Puerto Rico came to us voluntarily and without bloodshed. She welcomed us with open arms. Her adherence to the United States during the Spanish war saved the loss, possibly, of many lives and the expenditure of millions of money. Her people welcomed the armies under Miles as deliverers and benefactors. They professed themselves ready to become peaceable and loyal citizens of this country…. They are orderly, law abiding, and anxious for development…. If any people on earth deserve fair and considerate treatment at our hands it is the people of Puerto Rico.

… We propose, in this way, to establish a precedent for the Filipinos, the unruly and disobedient, by disciplining and punishing Puerto Rico, the well behaved and well disposed.

Another opponent of the substitute Payne bill, Representative George B. McClellan of New York, an avowed anti-imperialist, argued for free trade between Puerto Rico and the United States. McClellan favored making a distinction between the Philippines and Puerto Rico—a distinction under which Puerto Rico would be regarded as a part of the United States, and not merely its possession, and its people would be citizens of the United States.


Puerto Rico belongs to us

Puerto Rico belongs to us, and it is a problem that must be solved now. It is a part of the United States; the Constitution extends over it; its territory is our territory; its people are our citizens…. The case of Puerto Rico is very different from that of the Philippines, its inhabitants are few and capable of education; they are peaceful and are anxious to obtain the blessings of American civilization, and what is more, they are at our very doors.


in trust for the sovereign State

I believe that we can only hold territory, as a nation, in trust for the States that are ultimately to be erected out of that territory. I believe that we can only hold the territory of Puerto Rico in trust for the sovereign State that will be some day admitted into the Union. We are only dealing with Puerto Rico now, and yet the majority see in the proposition an endless skein of complications, for they know that, however they may disguise it, they propose to hold the Philippines in perpetual servitude.

Representative Thomas Spight of Mississippi distinguished between the Philippines and Puerto Rico in an almost stereotypical fashion and combined the usual arguments about geographical proximity and the alleged racial similarity of Puerto Ricans to white Americans with the injunctions of the Monroe Doctrine. Puerto Rico could be a part of the United States, and its people citizens of the United States, because Puerto Rico was localed within a traditional American sphere of influence—”in a measure, contiguous territory. It is a part of the American continent.”

Its people are, in the main, of Caucasian blood, knowing and appreciating the benefits of civilization, and are desirous of casting their lot with us….

How different the case of the Philippine Islands, 10,000 miles away…. The inhabitants are of wholly different races of people from ours—Asiatics, Malays, negroes and mixed blood. They have nothing in common with us and centuries can not assimilate them…. They can never be clothed with the rights of American citizen held. 2067 (remarks of Rep. McClellan

ship nor their territory admitted as a State of the American Union ….

But the case is essentially different with Puerto Rico. Its proximity to our mainland, the character of its inhabitants, and the willingness with which they accept our sovereignty, together with the advantages—commercial, sanitary and strategic—all unite to enable us to make her an integral part of our domain, without any violence to principle or any danger of foreign entanglements.

Imperialists and anti imperialists alike could (and did) appreciate differences between Puerto Rico and the Philippines. Sentiment favoring the view that Puerto Ricans were already American citizens—and therefore, that Puerto Rico was already “a part of” the United States, to which the Constitution was fully applicable— was especially strong among the anti imperialists. Among the imperialists who might be disposed toward the incorporation of Puerto Rico, however, there remained a concern that legislation for Puerto Rico necessarily established a precedent for the Philippines; that the treatment of Puerto Rico as an incorporated territory (“a part of” the United States) would mean a similar status for the Philippines: and that free trade between Puerto Rico and the United States might mean free trade between the Philippines and the United States. “I understand full well,” asserted Representative William E. Williams of Illinois, “that the Administration does not care a fig for Puerto Rico; that this precedent is about to be established not for the mere sake of deriving a revenue from that island, but as a precedent for our future guidance in the control of the Philippines.” The debate in the House on the Payne bill was concluded on February 28, 1900, nine days after it had begun. The first order of business was the disposition of a substitute bill offered by Representative Samuel W. McCall of Massachusetts, an outspoken advocate of granting United States citizenship to the inhabitants of Puerto Rico.221 The McCall bill called for a revival of the original Payne proposal whereby Congress would merely have “extended to and over the island of Puerto Rico” the “laws of the United States relating to customs and internal revenue.” It is not at all certain what effect such a bill would have had on the question of the citizenship of Puerto Ricans. This much is clear: it was the constitutional premise of the substitute Payne bill that Puerto Rico was not an integral part of the United States and that Congress therefore was not bound by the requirement of article 1, section 8 of the Constitution that “all Duties, Imposts and Excises shall be uniform throughout the United States.” Although neither the substitute Payne bill nor the McCall bill directly referred to the citizenship of Puerto Ricans, only the McCall bill left open the question whether Puerto Rico was a part of the United States and, if so, whether its people were citizens of the United States. Merely by extending the customs and revenue laws of the United States to Puerto Rico, the McCall biIl would have strengthen the view that such uniformity was constitutionally required; it would have permitted an inference that uniformity was required because Puerto Rico was an integral part of the United States and its inhabitants arguably were citizens of the United States.


Defeated by a vote of 174 to 160

On February 28, 1′.1900, the McCall bill was defeated by a vote of 174 to 160. By a nearly identical margin the House promptly defeated a motion to recommit the substitute Payne bill to the Committee on Ways and Means. Following the failure of these preliminary attempts to defeat it, the substitute Payne bill was passed by a vote of 172 to 160.

The original bill considered by the Senate Committee on Pacific Islands and Puerto Rico, and reported favorably on February 5, 1900, would have treated Puerto Rico as part of the United States solely for market and customs purposes, by extending internal revenue and related tax laws and by providing for duty-free trade between Puerto Rico and the continental United States. As the Committee reported, the bill “[did] not . . . extend the (constitution of the United States.” Only three days after the Senate Committee’s report, the House Committee on Ways and Means reported favorably on H.R. 8245, Payne’s substitute bill, which made no suggestion that Puerto Rico was an “incorporated” territory. In view of the change in administration policy then apparently under way, it is not surprising that by the time the Senate was ready to act on the Puerto Rico bill in the first days of March, 1900, the original Foraker bill, S. 2264, like the original Payne bill, had been scrapped. The Senate thus considered the bill adopted by the House, as now amended by the Chairman of the Committee on Pacific Islands and Puerto Rico, Senator Foraker of Ohio. While incorporating the substance of the revenue bill approved by the House, the Senate bill also sought to establish a civil government on the island. Moreover, the Senate bill provided for the collective grant of American citizenship to those inhabitants of the island who were Spanish subjects on April 11, 1899 and their after born progeny, if such persons continued to reside in Puerto Rico and had not elected to preserve their Spanish nationality in accordance with the terms of the Treaty of Paris.

Despite the projected grant of American citizenship to the Puerto Ricans, the bill clearly did not make Puerto Rico an integral part of the United States or extend to its inhabitants the full panoply of individual rights guaranteed by the Constitution. Citizenship was offered neither as a means of having the Constitution “follow the flag,” nor as a confirmation that the Constitution did follow the flag. There was nothing remarkable about the bill or its citizenship provision, in the view of Senator Foraker, “except only that its provisions are of such a character as to recognize that Puerto Rico belongs to the United States of America.” The author of the first legislative proposal to make Puerto Ricans citizens of the United States thus acknowledged, as others would in the years to come, that the principal objective of granting American citizenship to Puerto Ricans was neither to incorporate Puerto Rico into the United States (and thereby to have the Constitution apply in all respects to the island and its people) nor to grant Puerto Ricans political and civil rights equal to those of citizens in the Ig] H.R. 8245,

American Union proper. The objective, rather, was “to recognize that Puerto Rico belongs to the United States of America.”

Although the question ot citizenship was linked to the island’s political status, it had little or nothing to do with individual rights or, in particular, with entitlement to participation in the political or electoral processes of the United States. Senator Foraker noted:

We considered very carefully what status in a political sense we would give to the people of [Puerto Rico], and we reported that provision not thoughtlessly…. We concluded . . . that the inhabitants of that island must be either citizens or subjects or aliens. We did not want to treat our own as aliens, and we do not propose to have any subjects. Therefore, we adopted the term “citizens.” In adopting the term “citizens” we did not understand, however, that we were giving to those people any rights that the American people do not want them to have. “Citizens” is a word that indicates, according to Story’s work on the Constitution of the United States, allegiance on the one hand and protection on the other.

After a reference to the limited privileges and immunities ascribed by Justice Story to the citizens of the states, Senator Foraker reiterated his earlier remarks in a colloquy with a colleague on the floor of the Senate. Senator Foraker underscored the difference between a grant of citizenship and the conferral of individual rights under the Constitution of the United States by noting that the term “citizen,” when “used in the political sense,” was an “unimportant” one that described a “person owing allegiance to the government and entitled to protection from it.” Accordingly, he stated that the citizenship clause in the bill “confer[red] the right to vote or to participate in the government upon no one.” Whether the Constitution applied to newly acquired territories was therefore a different issue from that of the grant of citizenship. Senator Foraker fully shared the views held by Representative Payne and the proponents of the House bill that the legislative branch was endowed by the Constitution and by the terms of the Treaty of Paris with “plenary power to do in this matter as Congress may


the Foraker bill revealed widespread agreement

The Senate debate on the Foraker bill revealed widespread agreement among opponents as well as proponents of the bill that Congress had the plenary power to legislate for “unincorporated” territories. The record, therefore, reveals substantially less apprehension among the members of the Senate than among the members of the House about the precedential significance of the Puerto Rico legislation for the Philippines. Senator Lindsay of Kentucky for example, was “not afraid to be just to and liberal and generous with the people of this American island on the ground that we may establish a precedent to be used against us when we come to determine the civil rights and the political status of the Filipinos.” He also felt that making Puerto Ricans American citizens would “place us under no obligation, constitutional or otherwise, to follow that course when we come to legislate concerning the Tagals, Malays, etc., who inhabit the islands of the Philippine Archipelago.” I4S Senator Teller of Colorado, a leading Senate figure on colonial questions, intimated that he favored colonial status for both Puerto Rico and the Philippines, but he stated that he saw no binding precedent for the Philippines in anything Congress might do with respect to Puerto Rico.

The fear that legislation for Puerto Rico would set a precedent for the disposition of the Philippines question was clearly articulated during the Senate debate on the Foraker bill, albeit with greater subtlety than in the House. One of the few explicit remarks on the subject was made by Senator Turner of Washington. He felt that in the preparation of the Foraker bill “it has been found necessary to make a vicious and tyrannical precedent toward [Puerto

Although Teller saw “no reason . . . why the United States may not have a colony,” he felt that the nation was bound to extend to any colony the “great principles that underlie free government and to maintain there a free government and to maintain liberty

As in the House, the Senate debate also focused on larger questions of general imperial policy. Thus the debate was frequently filled with racist rhetoric. It is ironic, but not surprising, that racist overtones were most clearly discernible in the remarks of those who opposed American imperialism and argued most strenuously that “[s]ubjects do not exist in a free republic.” It was often left to the proponents of colonialism and annexation to extol the virtue and dignity of the colonial peoples whom they sought to bring, and keep, under the American flag. The anti colonial views expressed by Senator Bate of Tennessee were widely shared. He asserted that the question of Puerto Rico’s future, “[I]eft alone, without being associated with other interests, . . .

[T]here is evidently behind [the debate on Puerto Rico] a political dagger in [the] shape of the Philippines. That is the objective of this battle no one who has witnessed the scenes that have taken place in this Chamber; no one who has read the current criticisms of the newspapers of the day; no one who has read the messages of the President and the communications of the Secretary of War and other officials connected herewith, but knows and feels in his heart that there is something behind this more mighty than is this proposition touching the government of Porto Rico. The Philippines are behind it with all their troubles. That is like Pandora’s box, full of ills, some of which are upon us, and others are to come. That is the real question. Porto Rico is but its front shadow.

Yes, Porto Rico could be readily settled, easily disposed of, but for that which is to come after it. The embarrassing question is as to the character of government that we are to have in the Philippines and how it will affect certain interests. We are upon that line of battle to day [sic], under cover. Able and astute politicians of this Senate, especially those who represent and lead the other side of this Chamber, see that it is necessary to fight this battle upon the Porto Rican line, and not on that of the Orient. They have so decided, and hence the battle has been made here, although there is a bill . . . upon the table which involves the other question in regard to the character of the government that we are to have in the Philippines.

Then the Porto Rican question and the Philippine question is the same thing, and this has been brought about very shrewdly and adroitly by the leading spirits—those who think and mold and lead the movements oE the Republican party of the country.

Senator Bate, an anti imperialist, believed that “[t]he Constitution of our country extends wherever the flag goes,” and that “[s]ubjects do not exist in a free republic.” Bate saw in the pro posed legislation a “singular likeness” to the policy of England toward the American colonies and feared that “the omnipotence of Congress [asserted by the Puerto Rico bill] produces the same fruit as the absolutism of the English Parliament.”

The political roots of this anti-imperialism, particularly among populist and Southern legislators, lay partly in a preoccupation with the race of the colonial peoples and not solely in concern for libertarian ideals and constitutional principles. Thus, Senator Bate adverted to reports that some Filipinos were “physically weaklings of low stature, with black skin, closely curling hair, flat noses, thick lips, and large, clumsy feet.” He doubted that the precedent of “expanding our authority once to the Europeans living in Louisiana can be deemed as sustaining the incorporation of millions of savages, cannibals, Malays, Mohammedans, head hunters, and polygamists into even the subjects of an American Congress.”

Let us not take the Philippines in our embrace to keep them simply because we are able to do so. I fear it would prove a serpent in our bosom. Let us beware of those mongrels of the East, with breath of pestilence and touch of leprosy. Do not let them become a part of us with their idolatry, polygamous creeds, and harem habits. Charity begins at home, Mr. President, and let us beware! I fear we are eating sour grapes and our children’s teeth will be on edgeds3

Unlike Senator Bate, proponents of the Foraker bill such as Senator Depew of New York saw Puerto Rico as an island with which the United States might have an honorable and fruitful association: “With capital, enterprise, and modern machinery the possibilities of increase in its productiveness can not be calculated.” However, even they were fully prepared to accept the proposition that the United States could not and would not “incorporate the alien races, and civilized, semi-civilized, barbarous, and savage peoples of these islands into our body politic as States of our Union.” The answer they offered to the anti imperialists like Senator Bate was neither the promise of incorporation nor the avoidance of political and moral duty; the answer was to retain the new insular territories as possessions or colonies of the United States.

Despite Senator Foraker’s assertion that there was no inconsistency between the grant of American citizenship and the clear understanding that Puerto Rico would not become an integral part of the United States, a single, moderately worded attack upon the citizenship provision by Senator Teller at the end ot the second week of debate on the bill was most influential. Teller argued that “[i]f [the Puerto Ricans] are a part of the United States, if their people are citizens of the United States, you have no right to put a duty upon their goods. If they are not citizens of the United States, then it is a question of policy and not a question of justice.” On March 19, 1900 Senator Foraker responded by proposing an amendment to the Senate bill that deleted the reference to citizenship of the United States and substituted a provision that Puerto Ricans would be “citizens of Puerto Rico, and as such entitled to the protection of the United States.” Its Nearly a fortnight later, he explained the proposal to eliminate United States citizenship as one prompted by the suggestion that the grant of American citizenship would have the effect of making Puerto Rico an incorporated territory rather than a dependency or possession.’66 The citizenship provision was therefore eliminated in order to avoid conveying the idea “that we were incorporating [Puerto Rico] into the Union . . . thus putting it in a state of pupilage for statehood.”

Senator Foraker claimed that the change in the position of the Republican administration and the Republican leadership in Congress was based simply on increased awareness of economic and social conditions in Puerto Rico and a realization of the need to raise revenue for the new civil government. The revised bills envisaged the establishment of a special fund from monies collected by the proposed tariff on trade to and from Puerto Rico, all of which would be used for the support of this new government. In Senator Foraker’s view, the need to raise funds for the new insular government “without our practicing paternalism to the extent of feeding them from day to day out of our public Treasury” compelled the abandonment of the original citizenship provision. Despite the need to raise revenue for the government of Puerto Rico, it did not at all necessarily follow that they should not be[come] citizens of the United States, as I originally proposed in my bill, but every Democratic Senator almost, without exception, was saying that if we made them citizens of the United States we thereby made them a part of the United States, and if we made them a part of the United States that provision of the Constitution with respect to uniform taxation would apply, and we could not raise revenue in the way proposed in this bill. It was Democratic opposition, Mr. President, that brought us to realize that there ought to be a change from our original proposition, as it was clearly within the power of Congress to make it in the civil and political status of the people of Porto Rico. That is the complete explanation of the change which has been made. It was for that reason and no other.’70

Foraker’s amendments to the citizenship provisions of his Committee’s bill were adopted by voice vote on April 3, 1900.”‘ That same day the Senate adopted an amendment, also proposed by Foraker, to delete a provision for the election of a nonvoting Delegate to the House of Representatives of the United States,172 a position comparable to that held by elected representatives of “incorporated” territories such as Arizona, New Mexico, and Hawaii.” In its place, the Senate adopted an amendment offered by Foraker that provided for the election of a “resident commissioner to the United States, who shall be entitled to official recognition as such by all Departments, upon presentation to the Department of State of a certificate of election of the governor of Porto Rico.” 174 The resident commissioner would not be given a seat in the House of Representatives. Although in 1904 the position of resident commissioner became functionally equivalent to that of Delegate,” the form of its creation and the manner of accreditation were more akin to that of an ambassadorship from a foreign land.

On April 3, 1900, after the defeat of a motion to substitute the original bill that Foraker had brought to the Senate floor on March 2, the amended bill was passed on a rollcall vote of 40 to

In fact, an Organic Act” establishing a civil government for the island of Puerto Rico, passed not by Puerto Ricans, but by the United States Congress. The bill provided for the appointment of a governor of Puerto Rico by the President of the United States; the appointment of an eleven man executive council, five members of which were to he Puerto Rican, to serve as an upper house of the legislative branch as well as the governor’s cabinet; and the establishment of a thirty five member popularly elected House of Delegates. The island was entitled to elect a resident commissioner to Washington.

The civil government changes, however, resulted in little real local autonomy The bill put stringent restrictions on suffrage and set property and educational qualifications for office holding. Puerto Rico was made a part of the second judicial district of the United States with a district judge and a district attorney appointed by the President of the United States; the President was also given the authority to appoint the justices of the Puerto Rican Supreme Court. All laws passed by the April 11, 1900, the House voted 161 to 153 to adopt in full the bill as amended by the Senate.l77

This first skirmish in the battle over the authority of the United States to hold colonies was thus concluded by a legislative victory for the exponents of imperialism. Legislative action on Puerto Rico supported the view that Congress might exercise virtually unlimited power over the “alien” peoples of the new insular territories. By avoiding the incorporation of Puerto Rico and the naturalization of its people, the legislation which emerged from Congress made possible clear-cut political and judicial tests of McKinley’s expansionist policies.

The constitutional crisis precipitated by the cession of the Philippines and Puerto Rico and the congressional decision to treat both territories as colonies of the United States rather than as integral parts of the Union was resolved in the months following the enactment of the Foraker Act. That landmark legislation set the stage for the presidential election of 1900; “imperialism” became the great issue of the contest between Bryan and McKinley.

Historians have doubted that “these great quadrennial convulsions can ever be a mandate on anything,” t8D and it has been suggested that McKinley’s impressive victory was not truly a mandate on the question that the Democratic Party platform called the “paramount” issue of the campaign ‘B’ Nevertheless, the fact remains that the President and the party that advocated expansion and took credit for the Foraker Act won an overwhelming victory in 1900.

House of Delegates were subject to be governor’s veto; if the Puerto Rican legislature chose to override this veto, the United States Congress had an ultimate power of government. Thus, narrow limits were placed on the amount of self-government Puerto Rico was allowed to exercise. Foraker Act (Puerto Rico), ch. I9l, 31 Stat. 77 (1900).

President McKinley signed the bill into law on Aphl 12, 1900. See 31 Stat. 77 (1900).

Congressional power to legislate for the newly acquired territories was not totally without limits however. ‘The guaranties of certain fundamental personal rights declared in the Constitution . . . had from the beginning full application in the Philippines and Porto Rico.” Balzac v. Porto Rico, 258 U.S. 29H, 312

Regardless of the “true” source of McKinley’s victory the outcome of the political controversy over whether “the Constitution follows the flag” was resolved by the results of the presidential election of 1900. It was not long before the Supreme Court gave its approval to the new role of the United States as a colonial power.


… Insular Cases

In the Insular Cases, the Supreme Court grappled with “basic propositions of constitutional law and . . . a definition of the term ‘United States’ as used in the uniformity clause of the Constitution.” The significance of the Court’s decisions for Puerto Rico was direct and lasting. The Court held that after the ratification of the Treaty of Paris and the cession of the island to the United States Puerto Rico had ceased to be a “foreign” country within the meaning of the tariff laws.’93 Accordingly, Puerto Rico was “territory of the United States;”

… therefore, those duties collected after the ratification of the treaty but before the enactment of the Foraker Act in 1900 were unlawfully exacted.l96 Although Puerto Rico was not a “foreign” country, neither was it a part of the United States within the terms of article 1, section 8 of the Constitution, which declares that “all duties, imposts, and excises shall be uniform throughout the United States.” ID7 It was, in the Court’s view, “a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution.” IDR The Foraker Act’s imposition of duties upon imports from the island was therefore constitutional.

In its opinion, the Court explained 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.” IDD Responding to the popular notion that the Constitution followed the flag, the Court stated that this belief was due to “[t]he liberality of Congress in legislating the Constitution into all our contiguous territories [which] has undoubtedly fostered the impression that it went there by its own force.”

sion of the Constitution was itself constitutionally mandated, and stated that it was supported by “nothing in the Constitution itself, and little in the interpretation put upon it.”

Finally, the Court effectively approved the retention of the newly acquired territories indefinitely. Although the opinion implied that there would be an end to colonialism at some future date, it set no limits. The essence of the philosophy of the opinion may be found in one of its final paragraphs:

Patriotic and intelligent men may differ widely as to the desireableness 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 demands 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 a successful war in still 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, 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.

The significance of upholding the constitutionality of the Foraker Act was indeed great. If the Court had decided that Puerto Rico was a territory of the United States equal in status to the incorporated territories of the American West, the imposition of duties on goods carried between the island and the continental United States would have been prohibited. Although this would


raw goods could be imported from Puerto Rico at lower rates

… have deprived Puerto Rico of a source of revenue, if Puerto Rico had been deemed an incorporated territory, its people arguably would have been entitled to all of the rights, privileges, and immunities guaranteed by the United States Constitution. The actual decision of the Supreme Court, however, fit much more neatly into the “large policy” of the expansionists: the power of Congress to legislate as it wished for newly acquired territories was firmly established; raw goods could be imported from Puerto Rico at lower rates of import duties than those imposed on foreign goods; and the choice of either granting Puerto Rico its independence or treating its inhabitants as equal to Americans was avoided.

In the view of the three members of the Court concurring in Downes, whose doctrinal approach clearly prevailed in the following years, the appropriate question was hot whether Congress in legislating for the territories was subject to constitutional limitations. As Justice (later Chief Justice) White asserted, it was “selfdent” that the Constitution applied to Puerto Rico. the issue was whether the specific constitutional provision relied upon was applicable. Either as an incident of the right to acquire territory or the clause of article IV, section 3 of the Constitution that grants Congress the power “to dispose of and make all needful rules and regulations respecting the territory or other property of the United States,” the courts had long recognized a congressional “power to locally govern at discretion.” Because this congressional authority was founded on the Constitution, it could not properly be asserted “that the authority of Congress to govern the territories is outside of the Constitution.” The determination of the particular provisions of the Constitution applicable in a particular territory necessarily must be largely determined by the status of a territory. Although certain fundamental or inherent. Funds from tariffs and duties collected on goods shipped from Puerto Rico to the United States go into the island’s treasury.


law of political gravitation

The Courts reference to “the natural gravitation of small bodies toward larger ones bears a striking, and probably not coincidental, resemblance to John Quincy Adams, so

called law of political gravitation; Adams had long before likened Cuba to a ripening apple destined by a kind of natural law to “gravitate orderly towards the North American Union”.


requirement of uniformity

principles “which are the basis of all free government” apply to all actions of Congress in any of the territories, other principles embodied in the Constitution, such as the requirement of uniformity in taxation and customs matters, would not be applicable in territories not yet incorporated into the United .States.


Puerto Rico had been unaltered by the collective naturalization

A generation later, the Supreme Court would unanimously confirm the doctrinal basis of the Insular Cases in Balzac v. Porto Rico. In Balzac, the Court held that the constitutional status of Puerto Rico had been unaltered by the collective naturalization of its inhabitants; as a result, American citizens in Puerto Rico could not successfully assert the right to trial by jury under the sixth amendment. “It is locality that is determinative of the application of the Constitution, in such matters as judicial procedure,” wrote Chief Justice Taft for a unanimous Court, “and not the status of the people who live in it.” Puerto Rico was not an incorporated territory, and therefore its inhabitants could claim only those constitutional rights deemed by the Court to be “fundamental.” United States citizenship thus would not alter the doctrine of Downes v. Bidwell.


Doctrine of territorial incorporation

The doctrine of territorial incorporation developed by the Court in the Insular Cases and the cases following was based on precisely the same considerations that determined the nature of the 1900 legislation for Puerto Rico: an apprehension that the peoples of the new insular territories were aliens and a belief that the United States ought not to try to deal with them as though they were Americans. Like his counterparts in the executive and legislative branches of government, the principal author of the judicial doctrine of territorial incorporation, Justice White, “feared that a decision in this case in favor of the plaintiffs might be held to confer upon the citizens of the new possessions rights which could


subject to the sovereignty

[W]hile 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 appurmenant thereto as a possession.

not be taken away from them by Congress.” Moreover, there was a great concern among members of the Court, as there had been among the nation’s legislators, that the decision in the Puerto Rico cases would set a precedent for the Philippines. According to Frederic R. Coudert:

[I]n a conversation subsequent to the decision . . . [Justice White] told me of his dread lest by a ruling of the court it might have become impossible to dispose of the Philippine Islands and of his regret that one of the great parties had not adopted his doctrine of incorporation in its platform as providing the solution for the then, (as now) much mooted matter of the ultimate disposition of the Philippine Islands. It is evident that he was much preoccupied by the danger of racial and social questions of a very perplexing character and that he was quite as desirous as Mr. Justice Brown [the author of the “Opinion of the Court”] that Congress should have a very free hand in dealing with the new subject populations.


the United States might “dispose” of its insular territories

The recognition by all branches of government that the people of Puerto Rico, like the Filipinos, were different from Americans (and, therefore, that Congress ought to have a “very free hand” in developing political institutions there) was a source of considerable discomfort to many Americans and Puerto Ricans. It was particularly distressing to those who sought to make Puerto Rico an integral part of the United States. Although the doctrine of territorial incorporation rendered colonialism constitutionally permissible, at least theoretically it left open the possibility of a change in political status. In particular, the doctrine seemed to leave open the possibility that, for one reason or another, the United States might “dispose” of its insular territories. By refusing to accept the suggestion that the acquisition of new territories necessitated the immediate assimilation of alien peoples into the American system, the Court made it possible, in time, for the nation to accept the principle of self-determination free of the suggestion that statehood was the inevitable destiny of the new colonial territories.

As a result of the doctrine of territorial incorporation, the Foraker Act conferred few rights upon the people of Puerto Rico “which could not be taken away from them by Congress.” In the absence of a change in political status, it appeared that even American citizenship would not give Puerto Ricans any additional rights, a conclusion confirmed by the Court in Balzac v. Porto Rico in 1922. There was, however, one important exception: as the Court would hold in Balzac, Puerto Ricans gained the right “to move into the continental United States and becoming residents of any State there to enjoy every right of any other citizen of the United States, civil, social and political.”

“The Congress shall have the Power to dispose an make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…. ” (emphasis supplied).


Court’s decisions

Following the Court’s decisions in the Insular (Cases, there were few serious doubts about the significance of American citizenship, per se, for the inhabitants of Puerto Rico. The legislative record concerning proposals for conferring American citizenship upon the Puerto Ricans in the years alter the Foraker Act and the Insular Cases suggests that those concerned with the subject understood that American citizenship would yield little or nothing in the way of personal rights and liberties for the inhabitants of Puerto Rico.

Congressional Developments: The “Law-abiding and Industrious People” Two-thirds . . . White, of Spanish Origin”—of an Island “Permanently to Remain a Part of Our Territory”

After the Supreme Court’s decision in the Insular Cases, attention began to focus on United States citizenship for Puerto Ricans not as a vehicle to secure constitutional rights for the island’s people, but as a means of achieving other objectives perceived as important at the time. American citizenship was envisioned as a way to reinforce the sense of “belonging” of a people who, unlike the Filipinos, had demonstrated no sustained resistance to American rule. It could, and would, suggest that in the course of time and after a proper tutelage the cultural gulf between the United States and Puerto Rico might actually be narrowed or eliminated. It could, and would, form the basis of complaints about this “second class citizenship” and of further appeals to Congress aimed at the integration of the island into the American Union. It could, and would, constitute a formidable, if not insurmountable, obstacle to any effort, by Puerto Ricans or mainland Americans, to force the United States to “dispose” of the island. All of this appears to have been perceived, at least dimly, by those who were concerned with the future of Puerto Rico, including the island’s pre-eminent political leaders and, indeed, the spokesmen for its substantial, but fractious independence movement. Interestingly enough, virtually all prominent Puerto Rican leaders whose views were recorded in the annals of Congress supported the grant of citizenship at one time or another during the period between the Foraker Act of 1900 and the Jones Act of 1917. The record suggests that congressmen interested in granting American citizenship to the Puerto Ricans could have felt that they were responding to the needs and desires of the people of Puerto Rico. There is little to indicate a purposeful design or conspiracy to impose citizenship upon a helpless or resistant people

It is difficult, if not impossible, to ascribe to the Congress of the United States a definite viewpoint or position on a subject as complicated as that of the nation’s policy toward its new colonial empire. It is possible, however, to note from the record of congressional consideration of Puerto Rican affairs in the two decades following the enactment of the Foraker Act some basic and widely shared assumptions concerning the future development of the island and its people. Most important of all was the belief that the island was permanently to remain under the American flag.


Congressional perception

Congressional perception of the Puerto Ricans as essentially different from the Filipinos persisted into the first two decades of the American experiment with colonialism. The race of the Puerto Ricans was the subject of some concern, especially to those members of Congress with anti-imperialist sympathies, but it was not as overtly significant a factor as in the case of the Filipinos. The apparent acceptance of colonial rule by the Puerto Ricans was also in marked contrast to the Filipino situation and undoubtedly reinforced the notion that Puerto Rico should remain permanently tied to the United States. Puerto Rican expressions of unhappiness with American colonial rule, sporadic and modest as they were, merely reinforced this notion. They generally were limited to protests concerning the limited scope of local self-government under the colonial regime—in particular, the provisions of the Foraker Act that permitted the American-appointed governor to control directly the upper house of the Puerto Rican legislature. The basic colonial relationship was rarely directly challenged. United States citizenship thus inevitably was considered a means of acknowledging the special place of Puerto Rico among the new colonial territories and of expressing the virtually universal expectation of a permanent relationship. And the record of Congressional inter-action with Puerto Rico’s spokesmen suggests that the legislators of the new imperial state could assume that United States citizenship would be well received by the people of Puerto Rico.



One Puerto Rican commentator notes:

[El poder legislativo de la cámara puertorriqueña] resultaba muy débil primero por lo limitado de sus funciones en comparación con las del ejecutivo, y, en segundo luger, porque el mismo grupo que fungía como gabinete y jefes de Departamento intervenía mayoritariamente en la composición de la Cimarra Alta. Es decir, que el ejecutivo, aparte de sus amplias atribuciones, era también la parte más sustancial del legislativo. Por este medio se aseguraba, de un lado, una concentración de poder y al mismo tiempo que este estuviera en manos del sector extranjero.



The Fifty-seventh Congress (1901-1903)

Bills granting United States citizenship to the Puerto Ricans or permitting them individually to elect citizenship were submitted to each Congress following the enactment of the Foraker Act; these proposals met with varying degrees of success. As early as the first session of Congress after passage of the Foraker Act, Delegate Flynn of Oklahoma submitted a bill “to expressly conlcr American citizenship upon the people of Porto Rico.” The Flynn bill (H.R. 15340), which would have conferred United States citizenship upon all those defined as citizens of Puerto Rico by the Foraker Act, was referred to the Committee on Insular Affairs, where it died. There is no evidence regarding Delegate Flynn’s purpose in introducing the bill, but it is significant that he introduced it “by request.” It is not known at whose request the bill was introduced, although it is possible that the request was made by Puerto Rico’s first resident commissioner to the United States, Federico Degetau. In connection with H.R. 14083, the only other significant legislative proposal or1 Puerto Ricco coming before this Congress, Commissioner Degetau made it clear that he believed the Puerto Ricans were “legally Americans.”


Delegates from the Territories

H.R. 14083 provided for the election of a Puerto Rican “Delegate to the House of Representatives of the United States, with the right to debate, but not to vote, [and who was to be] . . . elected in lieu of the resident commissioner. This delegate would enjoy “the same rights and privileges as the Delegates from the Territories of the United States.”

Debate on the bill repeated much of the earlier congressional discussion of the Puerto Ricans and their legal status. But Representative L. Lewellyn Powers of Maine, who had introduced the bill, frankly admitted, in hearings before the House Committee on Insular Affairs, that he was not the author of the bill and did not know who had written it. Commissioner Degetau, the only other witness to appear at the hearings on the bill, later revealed that he had drafted it. In his testimony In favor of the bill, the Commissioner carefully distinguished between Puerto Rico and the Philippines. While noting “the moral influence that the passage of this bill can have on the Filipinos,” he observed that “Congress has the advantageous position of not being bound by it as a precedent, because of the different circumstances and conditions in which the Puerto Ricans and the Filipinos are situated toward the United States, and also by the express declarations of Congress.” He drew a familiar comparison: “When the generals of the American armies reached Porto Rico they found not an army that would interfere with them, but a people unanimously disposed to receive them as the heralds of institutions that had been studied and loved in Porto Rico for many years,”


Commissioner Degetau

Commissioner Degetau, along with many American legislators evidently believed that the different response of Puerto Ricans and Filipinos to American colonial rule merited a different civil status for the inhabitants of the two territories. He noted that the Foraker Act required public officials in Puerto Rico to take an oath to support the American Constitution, whereas Filipinos were merely required to make “an oath of allegiance to the United States as a nation, exercising there military power.” From this fact Degetau drew the conclusion that Puerto Ricans were already virtually American citizens.

The Foraker law declared in full force and effect the orders and decrees of the military government. Moreover, the Foraker law directly provides that all officials appointed or elected under that law should take an oath to support the American Constitution. We therefore feel true and legally Americans, and that as Americans we can bring to our adopted country the contribution to the common welfare that during the last century our people brought it to the Spanish legislature.


law-abiding and industrious

The bill written by Commissioner Degetau and introduced by Representative Powers was reported favorably to the House by the Committee on Insular Affairs. The report echoed some of the sentiments expressed by the Commissioner and recommended the creation of the office of Delegate from Puerto Rico on grounds that later would be used to support the extension of American citizenship to the Puerto Ricans:

Porto Rico has nearly one million of inhabitants. These people are law-abiding and industrious, and in the opinion of your committee in as much entitled or have a Delegate to speak for them and represent their interests on the door of the House of Representatives as are the less than 200,000 inhabitants of Hawaii, who now enjoy that privilege. Aside from these considerations, your committee believe that Porto Rico, because of her large business interests and important and rapidly increasing trade with the United States, and because of the admitted fact that she is permanently to remain a part of our territory. is entitled, as a matter of right, to have her representative granted the privilege of the floor of the House of Representatives where he can have suitable opportunity to voice the needs of his constituents of Representatives. Degetau’s efforts in 1902, however, evoked some significant expressions of congressional perspectives on the future of Puerto Rico and its people. These views were reflected in contemporaneous reports to the Congress by the President and the Governor of Puerto Rico.


Commissioner Degetau appeared as amicus curiae

The House did not act on the Powers-Degetau bill, but the Commissioner’s objective of obtaining direct access to the House was achieved in 1904 as a result of a change in the rules of the House

See Id. 4 (emphasis added). In 1903, Resident Commissioner Degetau appeared as amicus curiae before the United States Supreme Court to press the argument that Puerto Ricans were already United States citizens. See Gonzales v. Williams, 192 U.S. 1 (1904).


President Theodore Roosevelt

In his first annual report to the Congress, President Theodore Roosevelt had virtually taken for granted that Puerto Rico was a permanent fixture of the American system.


Porto Rico than as to any State or Territory

It is a pleasure to say that it is hardly more necessary to report as to Porto Rico than as to any State or Territory within our continental limits…. Its people are now enjoying liberty and order under the protection of the United States, and upon this fact we congratulate them and ourselves. Their material welfare must be as carefully and jealously considered as the welfare of any other portion of our country.240

The appointed governor of the island, Charles H. Allen, painted for Congress a picture of a colonial people who desired to remain permanently within the American system. Speaking of the two political parties which had come into existence in Puerto Rico following the American occupation of the island, the Republican and Federal parties, Allen noted some significant points of similarity: “Both announce their unqualified loyalty to the United States of America; and both desire a Territorial government, in the near future, and eventually full Statehood in the American Union I,


the election of a delegate

In 1903, a House bill to give the resident commissioner of Puerto Rico the status of a territorial delegate was amended by the Senate on the motion of Senator Foraker. The provisions concerning the election of a delegate were struck in favor of a section relaxing the naturalization laws “to authorize the admission to citizenship of all persons . . . [residing in Puerto Rico] who owe permanent allegiance to the United States, and who may become residents of any State or organized Territory of the United States.”


a state or “organized Territory”

As Senator Foraker explained, the bill would have eliminated the anomalous situation whereby Puerto Ricans, unlike aliens, were precluded from naturalization even when residing in a state or “organized Territory” of the United States, although this citizenship provision would not have affected the people of Puerto Rico generally or those individual Puerto Ricans who did not emigrate to the United States. The bill, as amended by Senator Foraker, was adopted by the Senate. Because it was passed on the final day of the session, however, there was insufficient time for the House to act on the bill.



The Fifty-eighth Congress (1903-1905)

The Foraker naturalization bill was presented again in the succeeding Congress, and was adopted by the Senate, but the citizenship provision was struck by the House Committee on Insular Affairs “in view of the fact that the legal questions involved [were] about to come before the courts of the United States for authoritative decision.” In the meantime, Commissioner Degetau, who now had floor privileges in the House of Representatives, promptly introduced his own bill “expressly to declare the citizens of Porto Rico citizens of the United States.” Although no action was taken of Commissioner Degetau’s proposal, his bill effectively endorsed the various legislative efforts to obtain United States citizenship for Puerto Ricans. These efforts were further stimulated by the position taken on the citizenship proposal by President Roosevelt in his fifth annual message to Congress on December 5, 1905: “I earnestly advocate the adoption of legislation which will explicitly confer American citizenship on all citizens of Porto Rico. There is, in my judgment, no excuse for failure to do this.”

Senator Foraker explained, “[The see born on citizenship] simply provides that the citizens of Porto Rico may became naturalized if they wish to some here. Now they are in a worse situation than aliens, for aliens may become naturalized citizens of the United States and Porto Ricans can not.” 36 CONC. REC. 2894 (1913) (remarks of Sen. Foraker).


Tulio Larrinaga

Undoubtedly encouraged by President Roosevelt’s support, Senator Foraker on January 4, 1906 introduced a bill “to provide that the inhabitants of Porto Rico shall be citizens of the United States.” The new resident commissioner from Puerto Rico, Tulio Larrinaga, followed suit on January 16, 1906. He introduced a bill that adopted in its entirety the language of Senator Foraker’s citizenship bill and provided for extensive reorganization of the insular government. On April 2, 1906, the chairman of the House Committee on Insular Affairs, Representative Cooper of Wisconsin, introduced a bill identical to Senator Foraker’s. Although none of the bills were enacted into law, hearings were held on these proposals and the Foraker and Cooper bills were favorably reported by the relevant committees of both the Senate and the Plouse. These bills set the stage for the first extended congressional discussion of American citizenship for the Puerto Ricans since the great debate on the Foraker Act in 1900.

The bill sponsored by Resident Commissioner Larrinaga, who represented the dominant Union Party of Puerto Rico, would have established an elective upper house for the insular legislature and provided for a variety of other reforms of the island’s local government in addition to its provision extending United States citizenship to the Puerto Rican people. The bill was endorsed by the League of Municipalities of Puerto Rico, representing sixty-five of the island’s sixty-six municipal governments. Its

The bill, as originally introduced by Representative Cooper on April 2, 1906 was indeed identical to senator Foraker’s. Subsequently, however, the text was slightly amended in committee to include mainlanders living in Puerto Rico within the definition of “the People of Porto Rico.” H.R. 17661, 59th Cong.


Citizenship in an “Unincorporated” Territory

spokesman, Roberto H. Todd, Mayor of San Juan, was a member of the Republican Party of Puerto Rico, which favored statehood for the island. Todd offered testimony, uncontradicted by Resident Commissioner Larrinaga who accompanied him, that there were no fundamental differences between the two Puerto Rican political parties.

The Republican Party has in its platform the aspiration that Porto Rico be ultimately admitted as a State in the Union. That is the basis of our political ambition, and no other. We do not put in anything else. The Unionists have in their platform that ambition also, as well as other ambitions. They say that as the Treaty of Paris left in the hands of Congress the ultimate status of Porto Rico, they would accept anything which Congress would see fit to enact for Porto Rico. Congress should see fit to make Porto Rico a colony, the same as the English colonies, they would accept it. If Congress saw fit to make Porto Rico a State, they would accept that also, and if Congress saw fit to make it an independent nation, they would accept that also. That is the real difference, but it is only on paper. When it comes to practice, we find that there is no difference.


Roberto H. Todd, Mayor of San Juan

That there was no substantial difference at that time between the various spokesmen for Puerto Rico on such a fundamental question as citizenship was clear also from the joint resolution of the Legislature of Puerto Rico 260 that explicitly asked Congress for United States citizenship for the Puerto Ricans. Additionally,

At this time the House of Delegates consisted entirely of members of Commissioner Larrinaga’s Union Party.


Joint Resolution of the Legislature of Porto Rico

Joint Resolution of the Legislature of Porto Rico, reprinted in S. REP. No. 2746, 59th Cong., 1st Sess. 5-6 (1906). In a joint resolution of both houses, the Legislative Assembly on February fl, 1906 noted that President Roosevelt had recommended conferring American citizenship on the Puerto Ricans in his annual message to Congress and solemnly petitioned the Congress “to embody in an act the high and just recommendation made by the President in favor of granting American citizenship to the Puerto Ricans.”


Jose de Diego

Delegates voted to send a memorial, prepared by Jose de Diego, to Secretary of State Elihu Root, who was then visiting San Juan. The memorial referred to the petition for United States citizenship and an elective Senate as “the supreme aspiration of all Puerto Ricans.” It was to be delivered to Secretary Root by the Speaker of the House of Delegates, Rosendo Matienzo Cintron, and a delegation which included the author of the memorial, de Diego, a Puerto Rican leader now generally identified in Puerto Rican congressional records indicate an apparently common Puerto Rican view that United States citizenship and reform of the local government were inevitably intertwined, Mayor Todd asserted that “there is not a single Porto Rican who would not appreciate the high honor which Congress would confer upon them by … [extending United States citizenship],” and added that “it would not take long for Congress to say that a people who could be made citizens ought to be made self-governing, because we think that one thing goes with the other.”


Rosendo Matienzo Cintron

There also appears to have been no disagreement about the other factor militating in favor of extending United States citizenship to the islanders—the seemingly universal assumption, articulated by Chairman Cooper and acknowledged by Governor Beekman Winthrop, “that the United States is never going to relinquish the island.”

Ever anxious to distinguish between Puerto Rico and the Philippines, Senator Foraker in 1906 would explicitly state what he had merely implied during the 1900 debates on the island’s first organic law—that the people of Puerto Rico had not been made citizens in 1900 solely because of the fear in Congress that it might be construed as a precedent for the treatment to be accorded to the Philippines. Foraker stated:

It is a singular situation. We adopted section 7 of the organic act [declaring Puerto Ricans to be “citizens of Porto Rico” rather than United States citizens] because, legislating for Porto Rico before we legislated for the Philippines, we were anxious not to establish any precedent that might embarrass us in legislating for the Philippines.


The Sixtieth Congress (1907-1909)

The citizenship proposal was revived in the following Congress by Representative Cooper, Chairman of the House Committee on history texts and popular lore with leadership of the pro-independence forces within the Unionist Party. Minutes of the House of Delegates Session of July 10, 1906 (copy of typescript from archives of the Legislative Assembly of Puerto Rico in author’s files). Compare his views in 1914 in text accompanying note 354 infra.

Insular Affairs, who reintroduced the bill he had sponsored during the preceding session. Three other citizenship bills were introduced during this Congress, including one by Resident Commissioner Larrinaga. In 1907 and 1908, in his annual messages to Congress, President Roosevelt reiterated his recommendation “that the rights of citizenship be conferred upon the people of Porto Rico.” Although none of these proposals prospered during this Congress, Representative Cooper’s bill was favorably reported by his Committee on Insular Affairs, whose members continued to view the people of Puerto Rico as “law-abiding and industrious— many of them of higil intelligence and culture—and . . . entitled to be recognized as citizens of the United States.” The Committee’s report noted that “our people have already decided that Porto Rico is forever to remain a part of the United States,” and concluded that “a people so worthy as are the inhabitants of Porto Rico, living, as they do, in territory destined forever to be under the dominion of the Government of the United States, are clearly entitled as a matter of right to be accorded the privilege and the honor of American citizenship.”

An expression of interest in the question of citizenship by an important American constituency found its way into the Congressional Record in early 1909, when Senator Du Pont of Delaware presented to the Senate a resolution, adopted at the annual meeting of the National Board of Trade, that favored United States citizenship for the Puerto Ricans because of the “earnest desire [of the people of Puerto Rico] to become more closely identified with our Government,” and because “business relations between the people oE the island and the people of the United States have been established upon a firm and enduring basis.” The American organized labor movement soon joined the organized business community in support of the proposition that Puerto Ricans should be American citizens, and thereby reinforced the notion of the nonpartisan and noncontroversial character of the proposal.


The Sixty-first Congress (1909-1911)

The citizenship question came before Congress again during the first session of the Sixty-first Congress, but the two bills introduced on the subject in the House of Representatives died in committee. The question of citizenship was overshadowed during this session by debate on the 1909 Olmsted amendment to the Foraker Act. This amendment provided that whenever the Puerto Rican legislature adjourned without having provided appropriations for the support of government, “an amount equal to the sums appropriated in the last appropriation bills . . . shall be deemed to be appropriated.”


Olmsted amendment

The Olmsted amendment was passed by both houses of Congress after acrimonious debate on the government of the island; it became law on July 16, 1909. The legislation was enacted in response to a governmental crisis that arose in Puerto Rico in early 1909. The island’s House of Delegates (the only popularly elected chamber of Puerto Rico’s legislature) expressed dissatisfaction with the action of Governor Regis H. Post and the Executive Council concerning certain judicial appointments by adjourning without passing an appropriations bill for the coming year. In response to the House of Delegates action, President Taft asked for an amendment to the Foraker Act that would enable the colonial administration in Puerto Rico to circumvent the refusal of the lower house to act on appropriations and thereby avoid similar crises in the future. The President’s accusations of irresponsibility and political immaturity on the part of Puerto Rico’s elected leaders—and the suggestion that too much power had been given to the Puerto Ricans “for their own good” provoked the first extended congressional debate on the island’s form of government since 1900.


The Porto Rico Free Federation of Labor, which was the insular branch of the American Federation of Labor (AFL), strongly supported American citizenship in a letter to Congress. … Samuel Gompers president of the AFL and often a spokesman in Washington for the Porto Rico Free Federation of Labor, later emphasized the support of the AFL for the citizenship provisions of the Jones Bill of 1916-1917 (H.R. 9533), although he expressed opposition to some features of the bill in a telegram to Senator Martíne of New Jersey in 1917. 54 CONC. REC. 1521 (1917). For a discussion of the relationship between the Puerto Rico Free Federation of Labor and the AFL, and the support of the trade union movement for “American citizenship as a token of the permanent union of Puerto Rico and the United States and guarantee of the protection of individual rights and of the establishment of North American democratic institutions in Puerto Rico.

Proponents of the Olmsted amendment regarded the assertive~ ness of the House of Delegates as “[amounting] to anarchy, and . . . revolution, and nothing else”; opponents of the measure noted that “‘[t]he power over the purse’ has been the mainstay of English liberty for a thousand years,” and expressed bewilderment as to “why we are called on to condemn Porto Ricans for doing the very identical thing we do ourselves in our state legislatures or Congress whenever it suits our convenience to do it.” Although the debate on the bill inevitably divided along traditional imperialist and anti-imperialist lines, it did not reveal any significant deviation from the basic tenets that had governed the United States’ relationship with Puerto Rico since 1900: the island would permanently remain within the American system and, despite the local political dispute; the relationship was essentially trouble free. Indeed, the anti-imperialists, who might have pointed to the difficulties of colonial administration as an indication of the need to disavow colonial rule, limited their rhetoric to support of the action of the House of Delegates. Typical of the opponents of the Olmsted amendment was Representative Borland of Missouri, who reminded the House that the Puerto Ricans had “welcomed the American arms [in 1898] and acted in cooperation with them, and . . . given the American Government no trouble.” Resident Commissioner Larrinaga, a firm opponent of the Olmsted amendment, was also at pains to underscore the good relationship that existed between Americans and Puerto Ricans. “[O]ur people take to English readily,” he told the House, adding: “[F]orty years ago I was a protectionist of the American manufacturers there. I . . . built the first railroad in the island introducing American rolling stock, which cost 45 per cent higher than the European material. And I established a free school for teaching English—broken English, of course.” In spite of these and other arguments against it, however, the Olmsted amendment was passed.


Representative Cooper of Wisconsin

The question of citizenship arose only fleetingly in the course of the debate of 1909 and then only to underscore the permanent character of Puerto Rico’s relationship to the United States. Thus, Representative Cooper of Wisconsin, a leading proponent of citizenship, asked whether “it is right for us permanently to retain Porto Rico because of its strategic importance and forever deny any sort of nationality to those people?”

The 1909 fiscal crisis in Puerto Rico, and the ensuing congressional action to amend the Foraker Act, precipitated consideration by Congress of the state of colonial government under the island’s basic law. It also effectively assured that Congress would consider more extensive legislation concerning the island’s form of government, and the status of its people, shortly after enactment of the Olmsted amendment of 1909.


1910 President Taft

In 1910 President Taft recommended that extensive amendments be made to the Foraker Act.287 The President’s statement prompted the introduction by Representative Olmsted of legislation designed to serve as a new fundamental law for the island. Although largely concerned with the organization of the insular government, the bill adopted the recommendation of President


Congressman Sorland explained:

I only desire further to state that the Porto Ricans have apparently given this Government as little trouble as could be expected under any circumstances of colonial acquisition. It must be said, to the credit of Porto Rico not only that they welcomed the advent of the Americans, but that they honestly attempted to work in harmony with the Americans.

Taft and his Secretary of War that individual Puerto Ricans be permitted to acquire citizenship voluntarily. The behavior of the House of Delegates during the fiscal crisis of 1909 apparently had a profound effect upon President Taft and the administration’s allies with Congress, who clearly believed that in Puerto Rico there was “a general and almost universal desire and demand of all classes, interests, and political parties for American citizenship for all the people ot Porto Rico as a whole. Nevertheless, that idea, combined with proposals for broadening the participation of Puerto Ricans in their local government, was regarded as nothing less than “disastrous to the health and economic and political welfare of the island.” Although in late December 1909 and early January 1910 the Republican and Union Parties in Puerto Rico had jointly and formally appealed to the visiting Secretary of War for “the [grant] of American citizenship to all the Porto Ricans collectively, which have consider to be an act of justice to which we deem ourselves entitled,” the Secretary of War preferred “to substitute for the present status an entirely new one providing for the voluntary acquirement of citizenship, with conditional suffrage rights.” The purpose of the Secretary of War’s proposal that an individual citizen of Puerto Rico be admitted to citizenship upon application to the courts and the taking of an oath of allegiance to the United States, combined with the additional requirement that “after a reasonable period . . . no one shall hold an elective. or appointive office, or vote, who shall not be a citizen of the United States,” was clear enough: it would limit sharply the franchise, in a land where eighty percent of the population was illiterate and few were accustomed to judicial processes, to a relatively small number of persons.

The administration’s proposal for individual elective citizenship was incorporated in the bill introduced in the House on

Similar appeals were addressed to the Secretary of War by a wide array of organizations and individuals with whom he met during his visit to the island, including island-wide and municipal officials, the Speaker Of the House Of Delegates, and representatives of organized labor. The Secretary reported that “[a]ll were of the same general tenor as the one from the mayor and council of the city of Arecibo,” which appealed for collective United States citizenship. Id.


Roberto H. Todd

March 8, 1910 by Representative Ohmsted and was part of the bill reported favorably by his Committee on Insular Affairs one week later. This bill was severely criticized by a minority of seven members of the Committee, including Resident Commissioner Larrinaga, as providing for a “scheme of government . . . even less autonomic and liberal in several of its more important features” than the Foraker Act. Opposition to the bill was expressed in communications to the Congress from the House of Delegates of Puerto Rico and the leadership of both parties in Puerto Rico, who nevertheless effectively expressed support for collective citizenship for Puerto Ricans. When Roberto H. Todd, Mayor of San Juan, told the Committee on Insular Affairs that “the Porto Ricans are . . . willing, in order to prove their sincerity, to accept all . . . things if they can get American citizenship,” not one of the Puerto Rican opponents of the bill present objected.

The report of the minority of the Committee on Insular Affairs, presented by Representative William Atkinson Jones of Virginia, reminded the House of Representatives that both national political parties had promised collective citizenship to the Puerto Ricans in the 1908 general election. He noted that “aside from party pledges and other purely ethical considerations, it will impose a great hardship upon the native Porto Ricans to require them individually and separately to go through the process of naturalization.” In the course of the Root debate on the bill, Representative Olmsted and his Committee yielded on the question of citizenship. On June 15, 1910 the House adopted Olmsted’s own amendment to provide for collective citizenship. It provided “[t]hat all citizens of Porto Rico . . . are hereby declared and shall be deemed and held to be citizens of the United States.” The bill, with this and other amendments, passed the House that day.


Eduardo Giorgetti

See Letter from Jose de Diego, Speaker of the House of Delegates, Eduardo Giorgetti, Chairman of the Central Committee of the Union Party, and Luis Muñoz Rivera and Cayetano Coll Cuchi ( the latter identified in the Congressional Record as ‘Cay Colieudey”), Special Commissioners to Washington from the House of Delegates

The Senate Committee on Pacific Islands and Porto Rico followed the lead of the House sponsors of the legislation for Puerto Rico, by initially reporting to the Senate the original Olmsted bill, including the provision for individual elective citizenship.

after recommitment of the hill, the Committee. reported the bill to the Senate, as amended on the floor of the House, to provide for collective citizenship. The bill died on the floor of the Senate, following a series of procedural objections by various members and a brief substantive statement in opposition to the citizenship provision by a senator who had had much experience with colonial questions as a member of the Cabinet in the previous national administration, Senator Elihu Root of New York. The effective defeat of the Olmsted bill in the Senate has been attributed to the opposition of Senator Root and to the half-hearted support given to it by the Taft administration, which was unhappy with the various House and Senate amendments broadening Puerto Rican participation in the affairs of the local government. Perhaps because of his continuing displeasure with the signs of political independence shown by the elected House of Delegates, President Taft did not recommend citizenship for the Puerto Ricans in his 1909 annual message to the Congress.

In his annual message to Congress, President Taft stated: “The removal from politics of the judiciary by providing for the appointment of the municipal judges is excellent, and I recommend that a step further be taken by providing therein for the appointment of secretaries and marshals of these courts.”

(1910) (President’s message). President Taft’s intention was to, place the appointment power entirely out of the reach of Puerto Rican elected officials and completely in the hands of American colonial administrators. He characterized the provision in the bill for a partially elected seriate—a measure that did not begin to the the expectations of the Puerto Ricans, regardless of political party—as “of doubtful wisdom.” He nonetheless described the bill as “an important measure,” and recommended “its early consideration and passage.” Id.

Democrats, and Representative Jones assumed the chairmanship of the Committee on Insular Affairs. Jones, as the ranking minority member of the Committee, had led the opposition to the restrictive provisions of the Olmsted bill of 1910, which included opposition to the provision on individual elective citizenship for the Puerto Ricans. On January 13, 1912, he introduced the first of a series of bills that envisaged collective citizenship for the Puerto Ricans.8l° One month later, Jones introduced a bill granting American citizenship to Puerto Ricans that would have permitted any person to decline American citizenship by making a declaration, under oath of his decision to do so within six months of the effective date of the legislation before a court in his district.8″ This bill, which was reported favorably to the House of Representatives within a week of its introduction 312 and passed by the House by voice vote less than a fortnight later, also did not indicate whether United States citizenship would be a condition for exercising basic political rights, such as voting and holding public office. However, in another bill introduced by Jones during this Congress to reorganize the island’s local government, a similar citizenship provision was included, along with a provision that after the effective date of the legislation only United States citizens would be “eligible for election or appointment to any office in Porto Rico under the Government of the United States or the Government of Porto Rico.” Another section would have limited the franchise after 1912 to United States citizen.

Jones and his Committee were interested in providing an opportunity for dissenters in Puerto Rico to refuse United States citizenship “to avoid the possibility of its being said now, or hereafter, that American citizenship was forced upon the people of Porto Rico.” 9]R The intended exclusion of non-citizens of the United States from the public life of the island, however, clearly gave Puerto Ricans little real choice in the matter.

In this and other respects, the first bills introduced by Jones on the question of the citizenship of Puerto Ricans nresarred the legislation on the subject finally adopted in 1917. In contrast to earlier statements UY proponents of citizenship On the practical effects of the naturalization of the Puerto Ric.lrls, Jones and his Committee envisaged a political status that would accord to Puerto Ricans constitutional rights comparable to those oC United States citizens residing in the Union or one of its “incorporated” territories. Thus, the Committee reported to the House that

[t]here are many able and learned lawyers who hold that the people of Porto Rico are now citizens of the United States; that when Congress established the civil government which now exists in that island, it thereby became an [incorporated] Territory of the United States m which the Constitution of the United States is applicable as elsewhere in continental United States. But this coritcrlriorl, however well gr`,urlclcd it may be, has never received judicial or other governmental sanction either in Porto Rico or the United States, and therefore, if the people oC Porto Rico are to enjoy the rights and privileges of American citizenship, it is necessary that it shall be explicitly conferred upon them by Congress. al 7

Jones and his Committee thus apparently proposed a grant of citizenship that would do substantially more than merely affirm the permanence of Puerto Rico’s place under the American flag. The permanence of the association was taken for granted. Thus, the Committee could state: “It has long been a conceded fact that Porto Rico has become permanent territory of the United States.” The report continued:

Its people have accepted this fact in good faith, and have never sought, nor do they desire, a separate arid independent political existence. Their loyalty to the United States under all circumstances has never been questioned. What they most desire, and what they have long and earnestly endeavored to secure, is American citizenship accompanied with the right to legislate for themselves in respect to all purely local affairs. That the American people concede their right to American citizenship, and are ready and willing to accord it to them, has been frequently made abundantly manifest


In 1912, the Taft administration endorsed the Jones bill

Nothing in the record suggests that Jones and his colleagues on the Committee inaccurately represented the views of the elected leadership of Puerto Rico of which they might reasonably have been aware.

In 1912, the Taft administration endorsed the Jones bill and United States citizenship for Puerto Ricans. Secretary of War Henry L. Stimson, with the advice and guidance of the legal officer of his department’s Bureau of Insular Affairs, Felix Frankfurter, had urged Congress to grant American citizenship to the Puerto Ricans and to disassociate citizenship from eventual statehood for the island. In his 1911 annual report to Congress, Secretary Stimson set forth the basic outlines of the proposal in words that would take on increased significance in later years:

The demand for American citizenship on the part of Porto Ricans is genuine and well-right universal. It has become a deep popular sentiment, and my experience in the island convinced me that a continued refusal to grant it will gravely would the sensibilities of this loyal people. It is a practical as well as a sentimental matter. A Porto Rican traveling abroad is literally a man without a country.

I believe that the demand is just, that it is amply earned by sustained loyalty, and that it should be granted.

But it is to be carefully remembered that this demand for citizenship must be, and in the minds of Porto Ricans is, entirely disassociated from any thought of statehood. It is safe to say that no substantial, approved public opinion in the United States or even in Porto Rico contemplates statehood for the island as the ultimate form of relation between us and Porto Rico. I think that the time is arriving, if it has not already arrived, when it is the part of honest and farsighted statesmanship frankly to declare our position as to the ultimate interrelation between the United States and Porto Rico so far as it is possible to do so without unduly hampering the future in wisely dealing with this problem. The connection between Porto Rico and the United States is permanent and has been from the beginning regarded as permanent. There is every reason, therefore, why the thoughts and habits of the people of both countries should as soon as possible begin to shape themselves toward the assumption of their final civil relationship.

I am of the opinion that the aim to be striven for is the fullest possible allowance of local and fiscal self-government, with American citizenship as the bond between us—in other words, a relationship analogous to the present relation between England and her over-seas self-governing territory. To my mind, this will conduce to the fullest and most self-sustaining development of Porto Rico, while at the same time it will grant to her the political and economic benefits of being under the American flag.

The sentiments embodied in the report by Jones and his Committee in the House, and in the official statement by Secretary of War Stimson, were reiterated and reinforced in the favorable Senate report on the bill, issued in early 1913. In endorsing the Jones bill, the Senate Committee on Pacific Islands and Porto Rico noted that “[a]t the present time these people are in the ano~lutlous condition of being, in their international relations, a people without a country, . . . [having] ceased to be subjects of Spain and having not become citizens of the United States.” Citizenship would correct this “un-American” situation for a people described in the Senate report as “two-thirds . . . white, of Spanish origin”- and “as a whole . . . friendly to the United States and ardently desirous of the rights of citizenship.”

What purposes would be served by the grant of citizenship? The Senate Committee reported, somewhat ambiguously, that it would “give them certain personal legal rights and privileges both in their relations to the local government and in their status abroad; [it would] tend to increase their self-respect and to cultivate and develop a larger capacity for self-government.” Noting that its opponents “seem to consider that [the hill] involves the right of the inhabitants of Porto Rico to participate in the government . .: jor] that it would lead to the agitation of the question of statehood for Porto Rico,” the Senate Committee specifically re

But of course Puerto Ricans had indeed become subjects or nationals of the United States and in that sense were not “a people without a country”; since at least 1900 they had owed allegiance to the United States and were entitled to its projected the notion that citizenship would involve “the right to participate in the government [or] affect in any particular the question of statehood.”

The citizenship bill was placed on the Senate calendar. where it died in early 1913.328 Despite the failure of the Senate to act in the closing days of the lame duck third session of the Sixty Second Congress, it is clear that the citizenship idea, with the special gloss placed upon it by several Congresses and two successive national administrations, was now a fairly noncontroversial matter for which there WAS widespread, bipartisan support.


7. The Sixty-third Congress (1913-1915)

The Democratic victory in the general election of 1912 brought to power the party that in 1900 had waged a national political campaign against imperialism and thereafter had generally continued to favor liberalization of American colonial rule in the insular territories. Nevertheless, the first Congress that met during the presidency of Woodrow Wilson devoted little attention to Puerto Rican affairs. The only bill regarding United States citizenship for the Puerto Ricans offered during the first session of the new Congress was introduced on July 10, 1913 by Senator Poindexter of Washington. This proposed legislation, a replica of the Jones bill of the preceding Congress, was referred to the Committee on Pacific Islands and Porto Rico chaired by Poindexter. The bill, however, never emerged from the Committee.

In his first annual message to the Congress, President Wilson held out the prospect that “[n]o doubt we shall successfully enough bind Porto Rico . . . to ourselves by ties of justice and interest and affection.” 39n Wilson envisaged “giving [the Puerto Ricans] the ample and familiar rights and privileges accorded our own citizens in our own territories”; whereas for the people of the Philippines—”a more difficult and debatable matter” the United States “must hold steadily in view their ultimate independence, and we must move toward the time of that independence as steadily as the way can be cleared and the foundations thoughtfully and permanently laid.” 3aa The historical distinction between Puerto Rico and the Philippines was thus carried over into the Wilson administration: Puerto Rico, but not the Philippines, could and would be drawn closer to the United States; Puerto Rico, hut not the Philippines, was assumed to be a permanent fixnue of the American system.

In February and March of 1914, early in the second session of the Sixty-third Congress, hills were introduced in the House and in the Senate to supersede the Foraker At-t with a new organic statute providing a substantially more liberal l`,nTI self government for Puerto Rico. The Senate Committee Pacific Islands and Porto Rico held hearings on the bill introduced by its new chairman, Senator Shafroth ol Colorado, it took no further action. In the House, the bill submitted by Representative Jones of Virginia, t:h`,mgh favorably reported by Its (Committee on Insular Affairs, was not debated on the floor.83″

The Jones bill of 1914 included the now familiar provision on collective citizenship for Puerto Ricans, with an opportunity to decline citizenship, and the additional explicit requirement that the right to vote would thereafter be limited to United States citizens. Although the citizenship provision was described by the House Committee on Insular Affairs as “[p]robably the most important change made hy this hill in the present law,” ~ the committee did not feel obliged to ret:`n~tit the now l’amiliin ttas~,tis tu~derlyitig the proposal. It was during this period, however, that Congress for the first time was fonnally informed of the reservations of some Puc~-m l(it.tus t`’n~t~luin,L!, the proposal l’,r ~`lLttivt ni~tu~-i~lizathm ol the ishttiders.

Some of those reservations were expressed, in sotilewilat muted tertns, hy Resident Commissioner Luis Muñoz Rivera. Munoz

Rivera had been the preeminent political figure of Puerto Rico since shortly before the American occupation of i the island in 1898.333 He had served briefly as the prime minister of the Puerto Rican government organized under the Charter of Autonomy granted by Spain in 1897 940 and had led the dominant Union Party throughout the early American colonial period. He had served in the House of Representatives as resident commissioner— the elected representative of the: people of Puerto Rico—since 1911.941 There is no record in congressional proceedings on Puerto Rico between 1911 and 1914 that Muñoz Rivera played anything but a passive role in legislative matters. There is no evidence that he had opposed the bills offered during the Sixty-second Congress (1911-1913) that provided for citizenship for the Puerto Ricans. If Muñoz Rivera’s views on this subject differed from those of his two predecessors, Federico Degetau and Tulio Larrinaga, or from Representative Jones and his other colleagues on the House Committee on Insular Affairs, there is no evidence of it in congressional records prior to February 25, 1914, when he appeared before the Senate Committee on Pacific Islands and Porto Rico to urge substantially more liberal terms than those proposed by Senator Shafroth for the organization of the insular government. A provision in the Senate bill for elective citizenship, upon application by individuals, was now described by Muñoz Rivera as “liberal and generous; but there exists in Porto Rico a well defined aspiration to the ultimate independence of the country.” 343 While not identifying himself with this aspiration to ultimate independence, Muñoz Rivera for the first time raised the question whether United States citizenship might effectively foreclose that political status option:

The majority of Porto Ricans think that conferring of American citizenship in any form, whatever would interfere with the future declaration of the status of the inhabitants of the island, and I pray Congress to postpone any legislation on this point for a period of a few years so that Citizenship in an “Unincorporated” Territory

we may demonstrate our capacity for self-government and Congress may fix a definite solution for the future.

If Muñoz Rivera had any doubts that citizenship would preclude national independence for the island, those doubts should have vanished the day after his testimony before the Senate committee in the course ot hearings on the Jones bill before the House Committee on Insular Affairs. Jones argued that if the terms of the Foraker Act were left intact, and Puerto Ricans remained “citizens of Porto Rico,” there might arise some confusion about the future political status of the island: it might lead Puerto Ricans to believe “that the United States has not determined the future political status of the Port`:’ Ricans, and they were therefore at liberty to-go ahead and clamor for independence.” 340 Jones asked Governor Arthur Yager:

Do you not think that, in as much as the sentiment in the

United States settle to be practically unanimous that Porto Rico is to remain permanently a part of the United States, in order to put an end to all agitation of this question there we ought to declare at once that the people of the island are citizens of the United States—that is, all who do not within a reasonable period declare that they-do not wish to become such citizens? Is it not best in this way to remove this question from Porto Rican politics?

As though in response to this statement by Representative Jones regarding the purpose of his bill, on the following day, February 27, 1914, Muñoz Rivera introduced a bill “lo provide a civil government for Porto Rico;” which explicitly provided that citizens of Puerto Rico were “declared, and . . . deemed and held to be, citizens of Porto Rico and as such entitled to the protection of the United States.” Inasmuch as the Committee on Insular Affairs had already begun hearings on its chairman’s bill on the same subject, it seems likely that Muñoz Rivera’s bill was designed merely to state his position for the record.

Munoz Rivera had another occasion to state his views on the question of citizenship when he appeared before the House Committee on Insular Affairs on March 2, 1914.

The sentiments of the Porto Rican people could be condensed into declaring to this committee: “If you wish to make us citizens of an inferior class, our country not being allowed to become a State of the Union, or to becotne an independent State, because the American citizenship would be incompatible with any other national citizenship; tf we can not be one of your States; if we can not constitute a country of our own, then we will have to be perpetually a colony, a dependency of the United States. Is that the kind of citizenship you offer us? Then, that is the citizenship we refuse.”

Muñoz Rivera thus introduced the possibility of independence for Puerto Rico—the first time that that political option appears to have been presented to Congress by the elected representative of the people `of Puerto Rico. But that possibility was raised only tentatively, in the expressed desire of the dominant political force on the island, the Union Party, to preserve independence as a possible option. But it was an option that Muñoz Rivera himself did not necessarily claim; rather, independence was merely an option that Congress might, in the course of time, wish to “fix [as] a definite solution.” Moreover, Muñoz Rivera was quick to indicate that, whatever might be the views of the party he led and represented in Washington, he personally entertained no doubt that Congress could make Puerto Ricans citizens of the United States and nevertheless he free to grant the island its independence.

My loyalty and my party demands that I proceed in accordance with the platform of the Unionist Party, whatever may be my personal convictions in this matter ….

It seems to me that by granting to the Porto Ricans American citizenship the Congress of the United States will not deprive itself of the right to later grant to Porto Rico full independence. It seems to me that Congress of the United States is supreme under all circumstances they could grant the Porto Ricans statehood or some kind of national independence.

But a great number of my constituents do not coincide with my own opinions. I am here to represent

In a memorable document addressed to the President and to, the Congress, Puerto Rico’s House of Delegates reinforsed the official position stated of Muñoz Rivera. The memorial of the House of Delegates, which was read into the Congressional Record by Representative McKenzie of Illinois on April 15, 1914 3s2 and later also published in the record of the Senate “tearings on the Shafroth bill, was a notable reversal of the Puerto Rican legislature’s previous statements on the subject of United States citizenship. The long and emotive statement, signed by the Speaker of the House of Delegates, Jose de Diego, expressed a preference for citizenship of Puerto Rico and stated, “firmly and loyally,” its “opposition to being declared, itl lfefianc e `,f our express wish or witllcutt our express c`,ttscttt, citizcHs ()f ally COUtitty Wh.HS(IC’VCI OLllCr thAt1 (~Ir own beloved soil.” ao~ It rejected the frequently stated notion that Puerto Ricans were a people without a country and that United States citizenship w<~’lcl ;~ftord thetn a m`,rc precise `,r cleat international standing.

We are citizens of Porto Rico and as such entitled to the protection of the United States ….

American citizenship in foreign countries accords no other privilege that1 that of the etljOyntetit ot ttlC protection afforded by the Government ofthe United States in the extraterritoriality of consular and diplomatic law. As citizens of Porto Rico we enjoy that protettiol1 and with it the only privilege derived from American citizenship in international relationship.

The memorial flatly rejected the often repeated view “that although the granting of American citizenship to Porto Ricans solves no practical problem, it yet satisfies a spiritual h~t1ging that responds to a general sentiment.” interpreted “our displeasure and our protest as due to the fact that you have not granted us American citizenship.” It ended with a remarkable peroration. :’

And so great is our love for our own citizenship, our own fatherland, that, in conclusion, we must make use of a hyperbole to express the earnestness of our sentiment We, like all Porto Ricans, are believers in the existence of God and of a perpetual superhuman life, but were there a citizenship of heaven with a right to eternal; happiness, and that were offered us in exchange for our own, we would vacillate to accept it and should under no circumstances accept it until after death.

Remarkable and nationalistic as this memorial was, it nevertheless did not appeal for independence. The failure of the document to state what its authors might want for Puerto Rico’s future, combined with the ambiguities of Muñoz Rivera’s testimony, could not have left Congress with a clear impression of the situation in Puerto Rico. Morenv.Pr, Munoz Rivera’s oppposition to the citizenship provision of the Jones bill of 1914 was based upon the formalism of the Union Party platform, from which (to some extent) he personally disassociated himself; consequently, his opposition to. the citizenship idea must be regarded as quite nominal. While noting that his constituents believed that “the granting of citizenship will interfere with their aspirations for independence,” he was quick to add a personal reservation and then leave the matter entirely in the hands of Jones and the Committee.

I can not be in opposition here with the views of my people, and I leave it to the committee, which has great capacity to study it and pass upon it, and to recommend to the House of Representatives, the best thing the committee thinks ought to be done in this case.S8° ~

To be sure, when confronted with a request that he express a preference between statehood and. national independence as the ultimate political status of the islands, Muñoz Rivera expressed a preference for independence. But he then characterized independence “as a question of sentiment” and declared that “[t]he people of Porto Rico would accept statehood now, although the Unionist Party . . . has eliminated the matter of statehood from its platform; yet, if you tender statehood now, in the name of my people, accept statehood.” He acknowledged that he had once favored the Olmsted citizenship bill of several years earlier and, while reiterating his opposition to the Jones proposal, trade it clear that he found its provisions for collective citizenship preferable to the suggestion of the Secretary of War th;it citizenship be granted on an individual and elective basis with public offices and voting restricted, in little, In United States citizens.

If Muñoz Rivera conveyed any message of significance to the Congress itl his various public statements and actions on this subject, that message W.15 Iess titan clear. Muñoz Rivera left Representative Jones, who historically had been associated with efforts to reform the colonial regime in Puerto Rico, to his own devices, and Jones could thus say, without contradiction by Puerto Rico’s resident commissioner; that “this talk of in~endet~e is an idle dream on the part of the Unionist Party, and . . . it would be much better to have the matter settled now, better for the Porto Rican nP~r~lP themselves a66

Given the ambiguous nature of Muñoz Rivera’s public statements and of the memorial itself, it is not surprising that Jones’ citizenship provision—~fratned upon the idea that Porto Rico is to remain a permanent possession of the United States . . . ~and designect] to settle this questhm and thus remove it frotn Porto Rican politics”—was unanimously adopted by the Committee on Insular Affairs. Jones’ proposal for collective naturalization of the Puerto Ricans survived the first Puerto Rican statements of opposition to the idea. The legislators failed to underst.ntd the message of tf’le memorial—that any citizenship that did not promise eventual equality in the American Union was precisely what the members of the Puerto Rican House of Delegates did not want for their people.


8 The Sixty-fourth Congress (1915-1917)

Legislation to replace the Foraker Act with a new framework for the government of Puerto Rico was considered and debated still again, and finally passed, in the Sixty-fourth Congress. A hill introduced by Representative Jones on January 20, 1916 was, in its author’s view, not materially different in either form or substance from the Jones bill of 1914. The new Jones bill was reported without dissent to the House five days after its introduction, even before the completion of hearings by the Committee on Insular Affairs. As a matter of convenience, the Committee simply adopted and reprinted its report on the 1914 Jones hill “as applicable in the main to this hill.” The section providing for collective citizenship for the Puerto Ricans—described in 1914, and by reference in 1916, as “[p]robably the most important change made by the] bill” was unaltered from the 1914. Surprisingly, it proved to be one of the least controversial provisions of the bill introduced by Jones in 191fi. After fourteen months of deliberation on the bill by both houses of the Congress, the citizenship provision enacted in 1917 was, save for a minor technical change, identical to the original Jones proposal of 1914.

By 1916, the general outline of the projected reform of the Puerto Rican government was well known. The citizenship proposal, in particular, had been pending in Congress since 1900, and there was little disposition to change the direction which Jones himself had charted for the Puerto Ricans in the preceding years. Thus, when the bill was briefly raised for the first time on the floor of the House on March 13, 191fi, Representative Horace Towner of lowa, the ranking minority member of the Committee on Insular Affairs, pressed for its early consideration on the ground that “we have had this proposition under consideration for many years . . .

The only change in the citizenship provision adopted during the 14 months of deliberation on the bill was one that permitted Puerto Ricans one year, rather than the six months provided by the original Jones Bill, to record their preference not to become citizens of the United States. The Committee evidently believed the change too minor to merit mention. Thus, although the report detailed other changes m the text of the bill, it was silent on the one-year amendment. The Committee stated simply that the changes not discussed were deemed “of such minor importance that it is not . . . necessary to specifically call attention to them.” H.R. REP. No. 77, [and] it has been made up by the committee without any regard to partisan considerations.”

Discussion of the citizenship proposal during this climactic Congress lollowecJ tilC’ getleral lines esl.d~lisilecl itl earlier years Citizenship was the inevitable by product to the virtually universal view Puerto Rico, unlike the Philippines, was destined to remail1 permanently under the American flag. Citizenship would confitttt the general policy and convictions of the key policy makers on colonial questions, including the President and his administration. It would “settle” the discussion on the island concerning the island’s political stands. Ancl, presumably, it would meet the expectations of the people of Puerto Rico. Finally Congress was ready to act on the issue.

As in the case of the 1914 Jones hill, opposition to the citizenship prcJvisic~l1 was explessed by Puerto, Rican’s resident Commissioner, Luis Muñoz Rivera~, alla by leaders of rhc ishulcl’s d~m~in.

Union Party. But the statetnents in opposition, as in 1914, were qualified by expressions ot regret that admission to the Union as a state did not appear likely in the foreseeable future and by a clear reluctance to articulate a definite political goal for the island that woulrl he incompatible with United States citizenship. References by Puerto Rico’s represematives to the possibility of national independence were tentative and equivocal. Finally, despite the initial opposition to the citizenship provisions of the hill, the citizenship proposal was endorsed by Muñoz Rivera ancl hy the Union Party leaciership in order to obtain the berlefits ol a more liberal basic la~v f~n li’C gr~vcrnment ol I’~’cl-tr, Rico,—a s~cp Lhat musl h;’ve sugges~ecl t`, mcmllers of the (‘r~ngress that the carlicr c~ppc~shirm to citizensllip ~v,as no more than a pretext clesigned tc, obtain `,ther more hul>orl.A’nt legislative ohjec rives.

The citizensllip question, when consiclered hy Congress in 191f,, was s`, ~mc~mtrovelsi.ll that neitller the Senate nc~r FIOUSC rel~ort Otl the lones hill devoted any particular attention to it. The hearings on the bill and the subsecluent debates 011 the Roor of troth houses of Congress provide some evidence of congressioIlal views on the tnattcr atlcl congressioIlal perceptions of Puerto Rical1 opillion.

At hearirigs helcl iL1 miC\-|atlUary 191(i hy tht~ U`’use (.ommittee OI1 lnsular Affairs, the governor of Puerto Rico, Arthur Yager, adverted to the Philippines bill then being considered by Corngress, drew the now traditional distinction between the two territories, and arrived at some obvious conclusions concerning the citizenship provision of the Puerto Rico bill:

We have no preamble to this bill [as in the Philippines bill, promising their eventual independence] and do not want it, but instead of that ‘we ask that the Porto Ricans be collectively made citizens of the United States. That takes the place of the preamble of the Philippipe bill and for the reason that the Philippirne Islands seem to be foreordained and elected some time for separation from the United States. Porto Rico, on the other hatrld, will always be a part of the United States, and the fact’ that we now, aTfter these years, make them citizens of the United States simply means, to my mind, that we have determined prac~ tically that the American Rag ~iill never be lowered in Porto Rico, and it is for their good, ancd for ours, that the American Rag remains permanently~ in Porto Rico. In my judgment citizenship in the country should be given because it goes with the Rag.376

C.overnor Yager’s sentimeT.tts expressed the almost universal conviction of members of Congress. Representative Jones, during. the course of these hearings, also seized upon the difference between the Philippines and Puerto Rico and noted that “[t]he purpose of the United States seems clearly to be to retain Porto Rico permanently.” He added: “There is no division of sentiment in the United States, so far as I am aware; on that subject. As to whether you will have Statehood or remain a Territory is a matter that remains to be decided in the future.”

The reasons underlying the distinction between the Philippines and Puerto Rico were identical to those articulated in Congress during the debates on the Foraker. b,II of 1900: race, culture, geographic proximity, economics, and the Puerto Ricans’ apparent acceptance of colonial rule. Representative Towner, who as the ranking minority member of the Committee on Insular Affairs was virtually, co-manager of the Jones bill in the House, introduced the Puerto Rico bill to the House by declaring, among other things, that “[n]early three-fourths of the population are white, mostly of Spanish descent.” Representative Huddleston of Alabama noted that “entirely different conditions obtain in Porto Rico than those which obtain in the Philippines.” 370 He colltinued, “The people of Porto Rico are of our race, they are people who inherit an old civilization—a civilization w-llich may be fairly compared to our OWT1.” a30 And in the Senate, Senat`,r Sb;i’Totl1 `,f Colorado, the c 1l.’irltulTT of tllc St.TlatC (AoTTltnittee {~11 Y;~( ITII Isl.’rT~ls (IIT(I l’orto Rico, and manager of tile Jones bill in the Sen.lte, noted that “‘the case of Porto Rico is entirely different from that of the Philippine Islands.” He gave the following reasons:

The Porto Ricans came voluntarily uTlder our governmental system, whereas the Philippine people did not do so; and there has been a grave question in the minds o f many as to whether this Nation has a right to force a people to come under its jurisdiction and become its citizerts against their will.

The Puerto Ricans, as Representative Towrler observed, were “a peaceable, tractable, intelligent people . . . [who since] their incorporation into olTr rcrritory . . . have never given this country the least trouble, m~r . . . given the goverm~rs wlmn~ we.llave sent to then1 the slightest apprehension or even eTnharrassment.~, 338

Nothing in the hearings on the Jones hill, it would seem, nad alterctl the traditioTTal perccl>tion of Puerto Rico ,tntl its people. Oppositio’1 to the CitiZCtlsTlip proposal by l’ncrt:o Rico’s variotls spokesmen had not effectively conveyed a sense of deeply-rooted resistance to the idea of United States citizenship. The testimony of NIanltel Rodriguez Serra, who appeared on behalf of the Puerto Rico I\ar Association and other major civic and intellecual groups, was typical. He urged the retention of Puerto Rican citizenship “because under it we may devel`,p, we ntay obtain an enl.irgement of our governnTental powers, until the ties binding us to your Nation may, by your will, disappear, and we might become al>solutely independerlt.” 3S~ His deferential marlrler c1early suggested, however, that the independence optiorl, SUC’T1 as it migllt be, was an option to be exercised by Congress. Indeed, when he was later explicitly asked if he desired independence, he was quick reply that the Bar Association had not authorized him to make such a request. Although he was authorized by the local civic organizations he represented to plead for independence, the Bar Association, the organization most readily understood and respected by his listeners, had limited his authority. “The bar association asked me to come here to ask only for the suppression or discontinuance of the United States District Court for Porto Rico.” B~P In response to questioning by Jones and Towner, Rodriguez Serra acknowledged that six years earlier he had favored a citizenship bill and permanent annexation to the United States because he had believed it would lead to statehood; his change of heart was the result of statements by President Taft and others that citizenship and statehood were entirely diflerent propositions.

Resident Commissioner Muñoz Rivera’s testimony was rro less tentative and ambiguous. While initially claiming that the adherents of the Unionist Party—sixty-one percent of the electorate— might be regarded as favoring independence, he was forced to admit that “at the present time there are very few people asking for immediate independence. Only the associations represented hy [Mr. Rodriguez Serra] want it, and they are not very great in number.” It is not surprising that, after some additional moments of speculation by Muñoz Rivera, Representative Austin of Tennessee should suggest to the Committee that it “go on with [its] business” because “I think it is a waste of time to talk about this independence of Porto Rico…. They are not going to have independence, but are going to stay under the flag, not only this year, but for all years to come.

The statement of opposition to the citizenship provision from the representative of the Union Party of Puerto Rico, Cayetano Coll Cuchi, was no more precise or firm than those of Rodriguez Serra or Muñoz Rivera. Coll Cuchi, who identified himself as “a firm believer in independence from all points of view and considerations,” suggested the importance of not precluding the possibility of independence by the collective grant of United States citizenship. But he nevertheless found it possible to defer to the judgment of his audience even on this fundamental question.

I can say that if the United States has decided definitely and firmly that Porto Rico is going to be a part of the Atnerican national, the time has come to declare the Puerto Ricans citizens of the United Statcs; but if such clecision has not been reached, such a declaration is absolutely premature.30′

Coll Cuchi could not have conveyed with much fi,rte the impression that United States citizenship was incompatible with the possibility of national independence, for he explained to the House Committee Otl lrlslth~r Affairs that “[w]hen wc that wc want an independent natiotl, wc clo not mean that we want to break away from the United States.” Coll Cuchi continued: “I consider that the United States is formed of a number of independent nations. I believe if we could obtain that kind of independence, within the Union, that would be the fairest and best solution of the prohlem, a~cl I w`,t~lcl be very glad ancl ITaPPY.~, lt’3

(toll Cuclli’s colleagues in the Union Party, wllo had authorized him t`~ speak in their behalf “because of . . . [his] knowledge of the language,” may bave c~ueltained str`,ng ViCWs cin tbe Ipic~stiOn of independellle and Unitecl States citizenship, but their ellc~setl representative hlforTllecl the H`mse Committee that he desirecl “an independent government, . . Mike any State of ~he U7lion,” 3~}6 and, when askecl by Representative Miller whether he prelcrred “cotnplete incorp~mati~m allcl statchoocl, or complete Independence irotl1 the United States,” 3~iD he chose statehood, a prefcretlee he then imputed to his principals:

I\IR. [COI.1.] Cuc tm I have no hesitation in answering that questiorl. I clo not clare to answer it in the name of my party, but I can ansiver it for myself persorlally. I do prefer statehood to all other kinds of governtnent, because I think at the preserlt time it is the highest political forrm of governtllent knowt1 tc, the public la~vs ol the world.

MR. MTLLER. What do those wllorn you represent tllink abm~t that?

MR. [COLL] Cueur. I think they woL’ld approael1 my lbles pretty nearly.

MR. MILLER. That is not what I have betn ]ed to believe by Mr. [Munoz] Rivera.

MR. [COLL] CUCHI. I believe he has previously so stated it. If you do not understand it that way, I think that is a misunderstanding on your part.~97

Conclusive evidence of Muñoz Rivera’s halfhearted opposition to the citizenship proposal may be found in the minutes of the House Committee on Insular Affairs. Muñoz Rivera was a member of the Committee during this period, and the minutes of the Committee’s sessions reveal that he was permitted to offer amendments to the bill and that he actually did offer several amendments. At no time, however, did Muñoz Rivera, “for the record” or otherwise, offer an amendment to the Jones bill to strike the provisions on United States citizenship.

The hearings before the Senate Committee on Pacific Islands and Porto Rico were not greatly different in tone or substance from the hearings held by the House Committee. Manuel Rodriguez Serra, once again appearing in behalf of the Puerto Rico Bar Association and leading civic and intellectual entities~ opposed collective citizenship because “[we] consider that the declaration of United States citizenship means the incorporation forever of Porto Rico into the United States, and therefore the destruction of our hopes of becoming at some future day an independent nation.” But

It is clear from the committee minutes that although Muñoz Rivera could not vote in committee, he was empowered to propose amendments to matters under consideration and in fact did so on several occasions. Certain of his proposals involved such technical matters as the coffee tax, id. 7 (January 14, 1916), whereas others conceracd more fundamental matters, including voting rights, id. 13 (January 18, 1916), and even a proposal to reform Puerto Hico’s political system along parliamentary hnes, id. 7 (January 14, 1916). For examples of other motions offered by Muñoz Rivera during this period, see id. 11 (January 17, 1916). None of his proposals, however, suggested withdrawal of the Jones Act provision on cinzenship. Id. passlm.

~ol Couernment tor Porto Afoo: Hearlngs on S. 1217 Betore the Senote Comm. On PaciJic Island, and Porto Rko, 64th Cong., Ist Sess. 35 (-1916) [hereinafter cited as Heorings on 8. lal7] (statement of Mr. M. Rodriguez Serra). he thereupon qualified his statement by arguing that “the highest aspirations of the Porto Ricans are either statehood or independence” and added: “I certainly believe that statehood is the best and most honorable formula of all political regime [stc]. It would unquestionably be a high honor for Porto Rico to be one of the States of this Union.” ‘t” He had concluded. however, that statehood was not possible because “[economical reasons”—that he did not explain—”prevent it.” Similarly, a statement read in behalf of the chairman of the executive committee of the Union Party, Antonio R. Barcelo, who apparently had difficulty speaking English, expressed concern that United States citizenship might effectively foreclose the possibility of eventual independence for the island, but only after noting that the Union Party had altered its earlier support ff,r citizenship in the aftermath of President Taft’s assertion that the granting of citizenship did not involve a promise of statehood.

Another representative of the Union Party at the .Senate hearings, Cayetano Coll Cuchi, while reaffirming the Union Party position of 1916 and noting that Congress in the future might be faced “with the very serious problem of unmaking 1,500,000 citizens of the United States, which is a more serious problem than making them citizens,” nevertheless asserted that “[w]e do not take any systematic stand either against or for American citizenship.” Opposition to the citizenship proposal, Coll Cuchi asserted, was based upon the apprehension that it would signify “perpetual incorporation into the United States of America without hope of statehood. That is, it means Porto Rico will be a colony, a perpetual colony, and of course to that we are strongly opposed.” But the need to reform the colonial regime established under the Foraker Act was so important, in Coll Cuchi’s view, that he favored a Jones bill that included the citizenship provision rather than no bill at all. “We have been suffering so much under our form of government that we want the bill passed with American citizenship rather than not passed at all.”

The Jones bill was first given extended consideration on the fioor of the House of Representatives on May 5, 1916—appropriately enough, just four days after the House had adopted the Jones bill for the Philippines, the preamble of which promised the Filipinos their national independence. Not surprisingly, members of the House Committee on Insular Affairs, who were familiar with testimony of Puerto Rico’s leaders, could report to the House that “it can probably be said that now there is very little expectation or desire in the island for independence” and that even the dominant Union Party had resolved in late 1915 to “postpone all action looking toward the independence of Porto Rico, and to devote our entire efforts toward a steady activity in favor of self-government.” Despite a long speech by Commissioner Muñoz Rivera in which, among other things, he opposed the collective citizenship provision of the Jones bill, Representative Fess of Ohio could report to the House immediately thereafter that there was no “serious” opposition to the citizenship proposal.

There is not any serious opposition that I know of, save this one objection that has been offered, that you are trying to force citizenship upon the Porto Ricans. I am sure that is not serious when once understood. This bill does not require the Porto Rican to take an oath of allegiance to make him a citizen…. [I]f he frets under it and does not want to be a citizen, then it is his privilege [sic] to take the step provided in this bill, to say that he does not want to be a citizen.

Munoz Rivera’s address of May 5, 1916 was unusual, if not unique, for a man who, according to a House colleague, did not often attend sessions of the House “on account of his difficulty in understanding English.” He expressed satisfaction with the provish~n of the Foraker Ar-t makillg Puerto Ricans citizens `,f Porto Rit-t,,” in nothing that.this (a[ltl his countryrnctl’s) earlier entlmsiasm for Americatl citizensllip had been darllpened by suggestions that Puerto, Rico had little or no chance of at llievitlg- statehood, regartiless ot t-itizenslIip. The Puerto Ricans, he said. “refuse to accept a citizeuship of an inferior order, a c itizcuship of the second class.” Muñoz Rivera revealed the key to the problem when he stated:

(,ive us statehood alla your gloriolts citizensilip will he welcotlle to ItS and to our children. If you deny us statehood, we decline your citizenship, fr.uIkly, proudly, as befits a people who C.UI be deprived of their t ivi1 liberties but who, alth`>ugl1 dtprived of their tivil lil~erties, will preserve their conception of honor, which none can take trom them, because they hear it in their souls, .~ m`>r.ll heritage from their forefathers.4’D

Mufioz Rivera proposed that the question of citizenship be put to a plel~iscite: “It would he strange if, having refused it so long as the<nity ·,f pc`,ple asked for it, ytu’ slnu~ltl clericie to impose it by forre now that the m.liority of the pc`,plc clecline it.” 424} 13Ut the evidence that a majority of the Puerto Rican people opposed citizenship was circltmstantial. Because Muñoz Rivera himself admitted that no vote on the matter had been taken, he presumably imputed the views of a majority of the [louse of Delegates to their constituents. Moreover, there is no evidence in congressional records that he or his p.trty ever sought the advit:e of the Puerto Rican electorate thrt~ugh lotal initiatives.

Mubiaz River.t’s .tddress had little impact on the House debate of tltis long discussed subject. What little support he stimulated for his stand against the citizenship proposal was drawn from clisparate quarters of the FIouse, but none likely to have much inHuence 011 Holtse colleagltes. From the left, he won the entllllsiastic and eloquetlt support of Representative Meyer I.ondon of New

the bill, Representative sc~rland sought assurances fron~ ih sp~sors that they had c<>nsulted with Besident cr~rnmissioner Muñoz Rivera. s`’rland stated that Mui~oz Rivera “[n]aturally . . is very much interested in this legislation. Ile told me that on account of his difficulty ir, ~nderstanding English he did ~ot frequently attend t\’e sessi`,~s `,f the

York, a Socialist who described the citizenship proposal as “the most absurd thing that has ever been advocated.”, H e added: “You can not compel people to love you. . You can not compel people who, by their elective representatives,’ say that they prefer to be citizens of their own island, of their own little country, to accept your citizenship.” London’s opposition to other aspects of the bill, especially the proposal for the disenfranchisement of illiterates, was so impassioned that it threw the House into turmoil and confusion. As the price of restoring order and avoiding a possible censure by the House, London was required to apologize to the House and to agree that some of his remarks be struck from the record because, he admitted, “[a]s they stand it would seem that I advocated or suggested that when the voters of Porto Rico were deprived of the franchise they would have a right to use violence.”

There was also opposition to the citizenship proposal from the other end of the political spectrum. Representative Joseph G. Cannon of Illinois, the former Speaker of the House, who believed that “[t]he people of Porto Rico have not the slightest conception of selfgovernment,” opposed the citizenship idea for a variety of reasons, mostly racial. He was evidently unpersuaded by the general characterizations of the Puerto Ricans as a largely white people. Noting that he had visited Puerto Rico three times, he informed the house that “Porto Rico is populated by a mixed race. About 30 percent are pure African . . . [and fully] 75 to 80 percent of the population . . . was pure African or had an African strain in their blood.” 425 He favored retention of the form of government esttabltshed by the Foraker Act and interpreted Commissioner Muñoz Rivera’s remarks in favor of a more liberal form of government as an appeal for eventual statehood. “God forbid,” he asserted to the recorded applause of his colleagues, “that in his time or mine; there should be statehood for Porto Rico as one of the United States.” 42a

House consideration of the citizenship provision of the Jones bill included little or no further floor debate, and by May 22, 1916 the House had effectively taken final action on this section of the Jones bill.427 By that day it could be noted by one member of the House that the bill not only had the unatlinttnts support of the Committee Otl Insular Affairs, but also “the support, the corclial support, of the Representative of the people of Porto Rico in this House.” 42s On the following day, the House hnis}led action on various amendments without touching the citizenship provision and passed the bill by voice vote.43′,

On May 24, 1916, the Jones bill, having passed the House, was referre’d to the Senate Committee on Pacific Islands and Porto Rico.430 The Comrllittee hacl already held hearings `’n a compandm measure introduced in the Senate by Senator Shafroth. The report

by Senator Shafroth’s (.ommittee, published JuIle 30, 191fi, acloptecl

the provision on citizenship of the Jones bill in lull and without

comment. I\ut the Committee eliminated a provision that would

have punished any person lYhO had declared his intention not to

become a citizen of the Unitecl States by prohibititlg his subsequent

naturalization. This provisit~n, in the Ctunmittcc’s view, “was

punitive in character and f.tilecl to serve any plattic;ll purpose.” 49~

An effort by Senator Shafroth to have the Senate begin to consider

the House bill was defeated on August 18, 191fi.432 Congress was

in its custo~uary recess from Scptember 9 to December 3. Thus, the

bill could not be brought to the floor of the Senate during the re

maining months of 191fi. In the meantime, on November 15, 1916,

during the congressional recess, Resident Commissioner Munoz

Rivera died in Puerto Rico.433 The island was without an official

representative in Washington until well after passage of the legisla

? tion in late February 1917.434

? President Wilson, in his annual message to Congress on De

cember 5, 1917, asserted that favorable Senate atrion on “the bill

i amending the present organic law of Porto Rico” was a matter of “capital importance.” Shortly thereafter, a bipartisan commission from Puerto Rico appeared before the Senate Committee on Pacific Islands and Porto Rico to urge the Senate to take favorable action on the pending bill. Antonio R. Barcelo, who would succeed Muñoz Rivera as leader of the Union Party, told Senator Shafroth that if the bill, which included the provision on United States citizenship, could be passed by the Senate before the December holiday recess “it would be the finest Christmas gift that could be made to the people of Porto Rico.” The metnorandum submitted to the Committee by Barcelo on behalf of the “Porto Rican Commission” offered no criticism whatever of the citizenship provision, although it did contain suggestions for various technical amendments to the bill. The memorandum also underscored the bipartisan character of the commission’s membership and the nl4animity with whir h it supported the bill.44” Quite clearly, as far as congrressional records indicate, by December 1916 Puerto Rico’s spokesmen were eager to achieve the long awaited reformation of the colonial government and no longer asserted any reservations concerning the question of United States citizenship.

The congressional recess ended on December 4, 191fi. No doubt in response to the urgings of President Wilson and the spokesmen for the various political groupings in Puerto Rico, Senator Shafroth qtade several efforts to raise the Puerto Rico bill for early Senate consideration. After two unsuccessful efforts earlier in the month, .Shafroth was finally able to gain the floor on January 13, 1917 for the commencement of debate on the Puerto Rico legislation. His opening statement noted that there had been some division of opitlion Otl the islanrl on the question of United States citizenship, but that “[t]here seems in recent years to be less opposition to citizenship on the part of the Porto Rican people, so we have provided in this bill that they shall become citizens of the United States unless they . . . file with the court a declaration that they want to remain citizens of Porto Rico.”

Noting the ahsc4lce of Puerto Rican representation in Congress (as a result of the rlc;tth of Muñoz Rivera) atltl the failltre to at:lopt the new tuganit I;INV, Shafroti1 sm~gl~t ~cptatctlly t`, rxperlite the Senate’s consideratioll of the bill.i43 ()tl the citizetlsllip provision, which evoked few questions ar4d almost no a<lverse commentary, Shafrt~tll metely rttnitlrlctl Ihc Senate that “the t~nly reason it was not dolle in the first instarlre was because ol lhe l.lct that we had the Philippine proposition at the same titne. They did not know exactly wllat they wantcrl (tJ do.”~4 lit’ assutcrl the .Senate that the citizensltip pr`,visio’1 tnet the expectatious t~f the Puerto Rican people and noted that “we have now in Washillyton representatives of the Uniollist Party and representatives of the Republicall Party, troth satisfied wi~h this very provision of the hill.” 44s The only atTtenrlmttlt by the Scnate t:o the `-itizettsllip pr`,visiot1 wits ;t tethnical one: Puerto Ricarls would be given one year, ratller than six months. in which to decirle whether to decline Unittrl States citizenship.44′; Under the terms of the bill, anti incleerl ol: all versions of the Jolles citizenship bill introduced after 1!)12,447 only citizens of the UniterI States would be eligible to vote i~8′,r hold various offices in the govemmet1t of the ITnited States or the governmeItt in Puerto Rico.44D Thus, the bill made any such decisiot1 to decline American ~ itizenship an effective waiver of participatiot1 in the public life of the island.

ConsideratioIl of the hill proeeeclerl apace in the Senate duriIlg the remainder of Januilry 1917 and througll the micldle of FebIltary. References to the citizenship question or even to the question of the ultitltate politital .r;tte of the ishmd, were frw ~u~rl f,tr hetweet1 during these debates, rotlsulTtecl as they were by prolongecl collsideratiOrI of the technicalities of a law which would serve as the constitution of a coloIlial people. In the course of a discussion ort

February 10 of requirements for the franchise, however, Shafroth With the promise of independence to the Filipinos in 1916,

did have occasion to advert to the grant of collective~citizenship in Puerto Rico became the largest of the insular territories that were

familiar terms: “We have denied . . . [the Porto Rican] the right of regarded as permanently ullder the jurisdiction of the United States.

citizenship heretofore, and he has been clamoring for it. He sa,ys,- . In matters of citizenship, reform of colonial admitlistration, and

‘I have got to belong to your country, and I want to be a citizer; of representation in Congress, Puerto Rico inevitably became a model of sorts for the smaller territories of the American empire. The

The Senate passed the bill on February 20, 1917.452 Conferees Virgin Islands in 1927, Guam in 1950, and the Northern Mariana

were promptly appointed463 in order to reconcile the Senate and Islands in 1976 successfully claimed for their people the United

·House versions of the legislation. The conference report, involv- States citizenship extended in 1917 to the people of Puerto Rico.

ing no change in the House provision on citizenship, was submmited by Congress on February 23 and 24.466.



House approved the conference report and the final version of the In the Jones Act of 1917 the Congress of the United States, after a final brief debate, on February 24, and the Senate liberalized the structure of colonial government in Puerto Rico and followed suit two days later.’67 The act of Congress including the .granted substantially more governmental autonomy for the island citizenship provision that was virtually identical to the version pr.o- than existed under the Foraker Act of 19004’2 Simultaneously posed four years earlier by Jones, was signed by President Wilson on March 2, 1917.465 helps tr~ make the Gu]f of Mexico an American lake. I again express my From June 1916 until final congressional action in February pleasure th t this bill grants these people citizenship. ” The people of ship section of the Jones bill on Puerto Rico. That matter had Puerto Rico are full citizens of the United Utates and your committee sees no reason long since been settled and required no further commentary. But why the inhabitants of the virgin Islands should not be placed in the same cateor ” For the rat er cursor consid r f the roposal of citizenship for the a passing reference to the citizenship provision of the bill, made in g Y h Y e ation 0 p the House during the final debate on the conference report by the Rrsc. 2806-07 (1927); id. 2779; id. 3979-82; id. 410S. The `;uestion of citizenship

f e c nsidered until 1937. Citiz.nshia for

rankin Re ubli or th people of uam was nr~t seriously co

g p can member of the Committee on Insular Affairs, Residents of Cinam, Hearings l3efo?e a Subcomm of the Senate Con~m. on Terri

Representative Towner of Iowa, summarized nearly two decades of tories and Insula, Affairs on S. 1450, 75th Cong, 1st Sess. (1937). At the time,

congressional debate on citizenship for the Puerto Ricans By grant- s. f sordallo, Chairma,~ of the House of Council of the Guam Congress, and other

· , . . ‘ proponents of the citizenship bill, repeatedly invoked the precedent of Puerto Rico

ng unlteCI States cltlzenshlp to the Puerto Ricans, Towner in- and the vugin Islands. Id. 6, 8 & ss. The proposal was unsuccessful but was

“ revived and adopted in 1950

formed the House, [w]e are conferring on them what they ought (1950) (CUrrent verS~on at 8 U.sgc ~ClA407°(fl907u6a)m) CV 512, §4, 64 Stat. 384

to have had years ago and what they earnestly desire—the privilege ~Administration 134 (Library of Congress, Legislative Reference 8ervice, Public

of being American citizens and being placed under the protection Aff8irs sulletin No 95, June 1951 ) Writing in 1941 of the nstive peoples of

0 our ag. political status of the Chamorros [the nstive people of Cuam] was to be defined

by the American Congress. This has never been done, however, so they rapk as

Id. 3009 10 (remarks of Sen. Shafroth). American nationals, not as American citizens, and they are designated as ‘citizens

~s2 Id. 3667 (Senate vote). of Cusm.’” L. Thompson, Guam and Its People 56-57 (American Council, In

45Sld. (Senate conferees); id. 3733 (House conferees). stitute of Pacific Relations, Studiec of the Paciflc No. 8, 1941). The status enjoyed

d64 b the Puerto Ricans from 1 9 u t —A erican nationals rather than citizens

however, Congress reaffirmed the indefinite colonial status of the island by conferring a type of citizenship on its inhabilants that strengthened Puerto Rico’s ties to the United States but gave its people few of the civil and political rights normally associated with American citizenship. From the outset, the grant of American citizenshlp to the people of this colony was wholly divorced from the Idea of “giving . . . those people any rights that the American people do not want them to have.” The objective of making Puerto Ricans citizens, as Senator Foraker noted as early as 1900, was merely “to recognize that Puerto Rico belongs to the United States of America.” The word “citizens,” he remblded his colleagues, meant nothing more than “allegiance on the one hand and protection on the other.” Thus, a half century after the United States proclaimed the inadmissability of the ownership of persons, lt affirmed its acceptance of the contemporaneous European concept of the ownership of peoples.

As far as the proponents of United States citizenship for the Puerto Ricans were concerned, however, there was no element of compulsion in the transaction. The grant of citizenship was generally believed to conform to the wishes of the people of Puerto Rico. Apart from isolated and usually equivocal statements of opposition, members of Congress were aware only of widespread and sustained Puerto Rican support for the proposal.463 The only strong statement h1 opposition toUnite<l States c itizenship fro~ll Puerto Rico was a melTIorial from the House of Deleg,ttes presented to Congress in 1914, three years before the Jones Act became law.469 Yet this memorial did not argue for independence, and its significance was undercut by the subsequent approval of the Jones Act citizenship proposal by Puerto Rican leaders. Moreover, despite an unusual and eloquent statement on the floor of the House in opposition to the citizenship proposal, Puerto Rico’s resident commis

48333 CONC. REC. 2473 (1900) (remarks of Sen. Foraker). See text accompany~ng note 139 supra. See also text accompanying notes al6-2o supra. Chief Justiee Taft would note that the only right that cinzenship conferred upon the Puerto Hicans was the right ‘to move into the continental United States and bec`’m~ng res~dents of any state there to enjoy every right of any other citizen of the t n~ted States, c~v~l, soc~al and political.” salzac v Porto Pico, 2s8 u.s. 298,

siorler rclrailled fr`,m purs~ting his oppt~sititn~ Ill C()mmIt[Ce; 47{‘ after his death, the Jolles hill, with its citizenship ploVisi`,tl httitct and s`’pp<~rted hy h`~th ~A the island’s major parties, ~vas hitiled as his p`,litical legacy to the l’uerto Rican peoplc.~, Arter passage `,f tluc l`,ttes Act,47i2 ottly 2St) persons took the legal steps necessary to declLte United States citizenship.473

In short, the United States Congress that enacted the Jones Act <‘f 1~)17 cannot bc said itttentionally to hiive ImlJOSCCI Amcrican <itizcuship on the pe`,plc `,f Puerto Rici~. Altho’~g-l1 geographic I74 ancl racial 475 consifierati<,ns were major factors in the decisiort to make the Puerto Ricitns American citizetts, the history of support for such a measure by the island’s political leaders and the lack of

470 See text acc`’mpar~ying ~,tes 398-400 s’~pra.

i7` Scr kxt i~cco~p`~y6~g ~i<>tcs 43fi-4() st~pra. Sr” als`J A. \1`,~,Ar.F5 CA’~`iN

s’~pra ~tc ·117; I B. pAr:AN `~`pra r~’te 272, at 176-82.

Pr~ert<~ Ricrfis o’~ly E’~glish-language newspaper 6~ rep`~rting the death of

M~6~,z Rivera prominently noterl his support for A’nerican citizenship:

M~ll~i~z \vas taken ill shr~rtly after his return fro~n Washington at the ch~se r~f Congress in Septen~ber…. He visitecl many places i~ the island conferring with the leaclers not only of the tinior~ist But the Rep~hlican party i`~d 6~ these c<~fere’~ces he announced his firn~ c`~\icti`,n that C`~-gress so~>n \vould pass a hi11 providing for American citize~ship f~,r P`’rto Rica~s ancl extending a greater degree of self-g~,ver~ent to the Island.

His desire for American citizenship and his open aciv`~cacy of it together with his i~sistence that nothing be done hy a~y `>f the pr~litical fii~cicrs h~re to hi’~d~r ft cl<‘s~r knitting of the r`L~6~s r’E the Isla~d :rnd th~ U’`ited St:~tc.s at first idl hut startled ‘~:~’y `,f his 6~1fi~\~`rs uhr, `~`rc hr~wcver cr~nv6~cocl rJf the wisclom of his cr’r~rs~ :~d YW”r~g i’~ lu’` t`, s~ppr~rt hirn.

Porto Ricc, Progress November 17 1916 at 1, colt 1 (copy ~n file irt the rt’~icersi0y of Penr~syloania Lau Reoiew ).

472 The Jones Act provided in part that any citize” `’f Puerto Rico could retain his . . . political status [i.e., citizen of P~crto Rico] hy making a declaration, under oath of his decision to do so \vithin six months of the taking effect of this Act before the district court i~ the district in which he resides, the declaration to be in form as follows:

“I beir~g duly sworn hereby declare my intention not to beco~ne a citizen of the United States as provided in the Act of Congress conferring United States citizenship upon citizens of Porto Rico ….”

resistance to American rule were equally important factors.476 In granting United States citizenship to the people of Puerto Rico,

Whutever else it may be, Puerto Ricr, is not a society that is preponderantly “white” under cr~nventional North American definitions of race. See generally C. LEwrs, supra note 5, ch. 13 ( 19fi3). The statistics on race collected hy the United Statm Department of War and later by the United States Census Bureau, based as they were upon North American notions of race, were invariably meaningless. As a 1940 guide to the island noted, “[t]he remark has often been made that on the mainland a drop of Negro blood makes a white man a Negro; while in Puerto Rico A drop of white blood makes a Negro a white man.” PUERTO Rlco Rr~coNsTnucnon ADMINrsn~AnoN IN CooPr~R^noN wrnH nHE WR’nERs PROGRAM OF nHE WORKS PROGRESS ADM~Nrsn`AnoN, PUERTO Rlco: A Co~nr~ TO THE ISLAND OF RonrQueN 110 (1940). See also C. LEWIS, supra note 5, at 283 (“[I]n Latin America and the Caribbean one drop of ‘white’ blood can launch an individual on the road to social aceeptanee as white.”). The accelerated “amalgamative process hetween the races” described by Pr`’fessor Lewis, C. LEWIS, supra ‘~ote 5 at 282 and others, is effectively revealed in United States census reports between ;899 and 1850 that suggested that blacks and racially mixed persons were simply vanishing in Paerto Rico. The percentage oE the Puerto Rican population reported as “white” ~ncreased with each decade of colonial rule:

The absurdity of trying to classify Puerto Rico’s racially mixed population in terms of North American notions of race prompted this extraDrdinary formulation of the “vanishing NegTo” thesis in a leading American encyclopedia:

It is to be observed that while the census taken in 1887 shows a black population of 76,985, and that taken in 1897 reduces the figure to 75,824, the census of 1899 further reduces the figure to 59,390. If this decrease should continue for a number of years, the black race would eventually disappear from Porto Rico unless there is an immigration of that race from the other West Indian islands in the future. This is the only island in all the West Indies where the white population is so overwhelmingly. in the majonty…. In 1910 the colored population was 34.5 per cent of the whole; in 1920 it had declined to 27.0 per eent.

Congress intendecl to distinguish between the Puerto Ricatis, regarded worthy of a pennanet1t association witit the United States,477 and the Filipinos who h;~tl vigorously anc-1 ”utigtatclully” resisted Arncricat1 n~lc.47~ Alth`~gh in retrosE’cc:t this p;ltertialism m;ty not reflect favorably Otl the members ol the majc~rity supporting the lotles Act `,f 1917 it cicn~otistrates that they thougilt of the extensi~n1 `~f Uttited States t itizenship as a tr’ the Puet t`~ l~ic.n~s. Therc is no eviden~e th.ll military totistripti`,rt was a purpose of the Icgislatit~n.47t’

C.ongress did however impose severe restrictions on the citizenship conferred on the Puerto Rican people: in spite of the protests of some Pnerto Rican Icatlers for the first titne in history titizenship was granted to a people without the promise oi eventual statehood 4S0 and without the full panoply of rights guaranteed by the United States Constitution. The Supreme Court uptleld this con~ gressional action by invol;ing the doctrine of territorial incorporation.48l As a result the year after the Filipinos were promised independence Congl-ess felt free to grant a litnited citizenship to the Puerto Ricans and thereby indefinitely extended the island’s colonial status. Ironically neither Congress nor the (.ourt saw anything wrong in “punishing” one peopic with the promise of independence and “rewarding” another with continited colonialism.

I.ater congresses granted a greater n~easurc `,t lot-al self-government to Puerto Rico through the Elective C;ovtrnor Art of h.3474RY and tile enactn~etit of legislation in 1950 4~3 giving Puerto Rico the right to draft its OWtl constitution. ”Comtnotl~vealth” St;ttliS rreated a third altertl;’tive a~tcptable at least for a thuc ll) ~t~,tny (t; I’uc,-n,

lRico’s voters. But in permitting the establishment of the Commonwealth of Puerto Rico, Congress expressly disavowed any intenti~m to alter the island’s preexisting political relationship with the United States.484

Prolonged association, growing economic dependence, and mass migration of Puerto Ricans to and from the continental United States made possible by United States citizenship, inevitably have’ had significant political consequences: fully ninety-four percent of the Puerto Rican electorate voted in 1976 for political parties devoted to maintaining, in one form or another, the “inrlisstJlubi’ link of the citizenship of the United States.” ~ti5 The pro-statehood

The legislative history of the commonwealth relationship leaves no doubt that Congress did not intend to change the island’s political status. See e.g., II.R. Rr~P. No. 227S, 81st Cong., 2d Sess., reprinted in [1950] U.S. CODE CONG. & AD. NEW5 2681 (“It is important that the nature and general scope of S. 3336 [A Bill to Prot~’de for the Organization af a Constitutional Cot7err~ment by the People of Puerto Rico, 81st Cong., 2d Sess. ( 1950)] he made absoh~tely clear. The hi11 ~nder considoratir~n wr~uld not change Puerto Hico’s f~ndan~ental political, social a’~d economic relationship to the United States.” Icl. at 3, U S. Ct’Dr Cr,N`.. & A~. NEWS at 2682.). See also s REP. No. 1779, 81st Cong., 2d Sess. (19.’i0). This view was shared by the executive branch of government. See, e.g., If.R. Rr:P. No. 2275, 81st Cong., 2d Sess. s-6, reprinted in [1950] U.S. CODE CONG. & AD. NEWS 2681, 2684-85 ( letter of Secretary of the Interior Oscar L. Chapman to Senat`,r, Joseph C. O’Mahoney, Chairman of the Senate Committee on Interior and Iris~ilar Affairs); id. at 8-9, U.S. CODE CONG. & AD. NEWS at 2688-89 (letter of Assistar~t Secretary of State Jack K. McFall to Senator Joseph C. O’Mahoney ). Senat`>r O’Mahoney said it was “fundamental that the Cor~stitution of the United States gives the Congress complete control and nothing in the Puerto Rican eonStitution could affect or amend or alter that right.” Puerto Rico Constitution: Heardr~R’ Before the Senate Comm. on Interior and Insular Affairs. 81st Cony., 2d Sess. 40 (1952). See generalll’ note 22 supra.

~r45 See note 28 supra. Proponents of commonwealth status for Puerto Rico, including more liberal versions of that status, are no less enthusiastic in proclairnrnc the bond of Unrted States citizenshrp tban the advocates of Puerto Rico

party that swept to victory in 1976 proclaims that statehood in the American Union, and “first-class” citizenship identical in all respects to that of residents of the states, is the answer to “a citizenship ot an inferior order, a citizenship of the second c]ass.” i~0

Citizenship “of the second c]ass” in a colonia] setting was destined to fall into disrepute in the era of decolonization and the reassettion of claims to equality by long-oppressed racial minorities in the United States. ~Fhe repudiation in the Unitetl States and elsewherc `~1 previously ;~rtepitti rrotiotis of ine<lr~ality arlrl sr~borrlinatitm, .tntt the .tpp;trent suttesses of the civil rights n~r~verrrelil hr the United States and the decolorlization movements in other parts of the world, inevitably r-cinforced those in Puerto Rico who define ‘the goal of statehoocl in terms of achieving “first ~ lass” citizeriship for the islancl’s people.~87 A (.ongress writing la~vs for a tomiliktnt colonial people in 1917 extenrled to the Puerto Ricans a ritizenship “of the set orlrl tlass” perpenrating their colonhd status, and a ritizenship tirat is the root of conterilporary hopes and CCmteinS ahont Puerto Rico’s- politica1 status. It remains for a new generation of Puerto Ricans, and another Congress, to determine when, and under what circumstances, this anomalous situation will end.

Muchos populares e independentistas nos dicen que la ciudadanía americana nos fue impuesta en 1917. Pero la cita a continuación nos demuestra que los puertorriqueños habian pedido la ciudadanía americana mucho antes de 1917 y que Estados Unidos por medio de una Ley (Jones-Shaffrth Act) no las concedio en 1917: “My país solicito unánime la ciudadanía de los Estados Unidos muchas veces. Lo solicito bajo la promesa del General Miles cuando desembarco en Ponce. Demos la estadidad y recibiremos su gloriosa ciudadanía para nosotros y nuestros hijos.” -Luis Muñoz Rivera, 5 de mayo de 1916-
  •   Francisco R Gonzalez En el libro American Citizenship del intelectual Hon. Jose Cabranes, Juez Federal de Circuito, documento que hasta Jose De Diego la solicito, y que la primera vez que alguien hizo referencia a que a los Puertorriquenos (ya participaban en el Ejercito desde el 1898) nos hicieron Ciudadanos fue en el 1928 por Geigel Polanco. Es que los izquierdistas siempre tratan de cambiar la historia para acomodarla a sus Utopias. Lea a Cabranes en (Necesitamos otra fotocopia para corregir algunoas paginas, si alguien tiene el libro le agradecere una fotocopia) Pompy
  • Busque los Temas Principales de en Indice
  • **************

José A. Cabranes

From Wikipedia, the free encyclopedia
José A. Cabranes

U.S. Circuit Judge
Assumed office
August 9, 1994
Nominated by Bill Clinton

Born December 22, 1940 (age 70)
Mayagüez, Puerto Rico
Alma mater Columbia University
Yale University
Cambridge University

José Alberto Cabranes (born December 22, 1940), is a judge on the United States Court of Appeals for the Second Circuit. Formerly a practicing lawyer, government official, and law teacher, he was the first Puerto Rican appointed to a federal judgeship in the continental United States (1979).




Cabranes was born in Mayagüez, Puerto Rico into a family of educators; both his mother and father were school teachers. Both parents were educated in Puerto Rico’s public schools and at the then newly founded University of Puerto Rico in the first decades of the Twentieth Century, part of the first generation of Puerto Ricans educated under the American flag after Spain’s transfer of the island to the United States following the Spanish-American War (1898).

José Cabranes’s mother, Carmen López Cabranes, was born in Humacao, PR, in the southeastern part of the island, and graduated with a teaching degree from the University of Puerto Rico in 1930. After graduation, Mrs. Cabranes worked as a grammar school teacher, and for a period during the Second World War, as director of the San Juan school lunch program. In 1946, she moved with her family to the South Bronx, where her husband had been recruited by the National Council of Jewish Women to become the executive director of Melrose House, a settlement house that had historically served Jewish immigrants, but was then principally serving its neighborhood’s recently-arrived Puerto Rican population.[1]

Mrs. Cabranes became an editor of Spanish-language publications for McGraw-Hill, and was the production editor of the journals of the American Society of Mechanical Engineers.[2][3]

While living in New York City in the 1950s and 1960s, Carmen Cabranes was involved in politics, participating in John F. Kennedy’s 1960 presidential campaign and Robert F. Kennedy’s 1964 senatorial campaign. She worked closed at her husband’s side in the cultural, civic and religious leadership of the Puerto Rican community in New York.[4]

The couple retired to Santurce, Puerto Rico, in 1965, where Mrs. Cabranes was briefly the editor of the industrial guide of Puerto Rico’s Economic Development Administration. She was active in pro-statehood politics, participating exuberantly in mass rallies well into her 90’s. She died in San Juan in 2006 at the age of 96.[5]

José A. Cabranes’s father, Manuel Cabranes, was born in Toa Alta, PR, a rural town in the hills of the island’s north-central region, and began his career as a rural school teacher in the countryside around Toa Alta. In time he became a teacher in the island’s capital city and principal of the Rafael M. de Labra School in Santurce, PR. In 1931, he and two other Puerto Rican teachers were selected for graduate training fellowships in the continental United States in the newly-developing professional field of social work, thereby becoming the first professionally trained social workers in Puerto Rico. Returning from graduate work at Fordham University in 1933, Manuel Cabranes served as a supervisor of social work in several of the reconstruction programs of the territorial government of the New Deal era (1934–1940), organizing and directing the territory’s first program of probation and parole (1934–1936) and later, in Mayaguez, serving as director of the Escuela Industrial Para Niños (Industrial School for Boys), one of the first “reform schools” on the island (1940–1942).

Manuel Cabranes was a founder of the probation and parole office of the island’s federal court, serving from 1942 to 1946 as Chief Probation Officer of the U.S. District Court in Puerto Rico.[6] He was serving in the federal court of Puerto Rico when he was recruited to become director of Melrose House in the South Bronx, part of the first airborne migration to New York City in the post-war era. José Cabranes and an older brother, Manuel A., studied at St. Anslem’s School in the South Bronx, and later, in the public schools of Flushing, Queens.

Manuel Cabranes in 1948 was appointed the first director of the office of the government of Puerto Rico in New York City by Gov. Jesús T. Piñero, and also served for several years under the island’s first elected governor, Luis Muñoz Marín.[7] As the principal Puerto Rican Government spokesman for the mass of Puerto Ricans who had recently migrated to New York, he was called upon to defend them when attacked by opponents of the migration, including major newspapers.[8]

The government of Puerto Rico office headed by Manuel Cabranes in New York was attacked in November 1950 by Puerto Rican Nationalists who simultaneously attempted to assassinate President Harry Truman at Blair House in Washington and Governor Muñoz Marín in San Juan. The two home-made bombs hurled at the New York office failed to explode.[9]

In 1951, Manuel Cabranes began to serve in New York City Government,[10] where he served as Consultant to the Commissioner of Welfare and was active in the civic life of New York’s Puerto Rican community and a regular contributor on cultural affairs in the city’s Spanish-language newspapers, El Diario de Nueva York and La Prensa.[11] He was a leading Roman Catholic layman, serving the Archdiocese of New York for many years as Chairman of the Citizens Committee for the Feast of St. John the Baptist, the annual religious celebration of the feast day of the patron saint of Puerto Rico.[12] In a time before the ready availability of public scholarships for college study, he joined in organizing the New York Puerto Rican Scholarship Fund in 1952, which awarded cash scholarships to support undergraduate and graduate education of New York Puerto Rican youth, and he led the organization for more than a decade.[13]

Manuel Cabranes retired from the New York City government in 1965 and returned with his wife to Puerto Rico, where he taught sociology at the College of the Sacred Heart, in Santurce, and was a regular contributor of articles on various subjects to Spanish-language newspapers and journals. He died in San Juan in 1984 at the age of 79.[14]

José Cabranes graduated from Flushing High School in 1957 and earned a bachelor of arts degree in History from Columbia College in 1961. Between college and law school at Yale, he taught History of Puerto Rico and History of the United States at the Colegio San Ignacio de Loyola, in Rio Piedras, PR. He earned his law degree from Yale in 1965 and was awarded a Kellett Research Fellowship from Columbia College and the Humanitarian Trust Studentship in Public International Law from the Faculty Board of Law of the University of Cambridge to study international law at Queens’ College, University of Cambridge, in England. In 1967, he earned his M.Litt. (Masters of Letters) in International Law, and returned to New York city to practice law.[15]

[edit]Positions held

Cabranes was an associate in the New York City law firm of Casey, Lane & Mittendorf (now dissolved) from 1967 to 1971, and became avocationally active in public affairs and the civic life of the Puerto Rican community of New York. In the early 1970s he served as a trustee of the Hudson Guild settlement house, in the Chelsea area of Manhattan, and as a director of Citizens Union, a “good government” civic group first organized in the early Twentieth Century. In 1971 he became Chairman of the Board of Directors of ASPIRA of New York, an organization that helps inner-city Hispanic youth prepare for higher education,[16] and he was a founding member of the board of directors of the Puerto Rican Legal Defense and Education Fund, of which he was later (1975–1980) Chairman.[17]

In 1971, Cabranes left law practice to become Associate Professor of Law at Rutgers University Law School, in Newark, where he taught administrative law, conflicts of law and international law. While at Rutgers Law School he continued to live in New York City, and in 1971 was appointed by Mayor John V. Lindsay as a member of the board of directors of a newly-created public corporation, the New York City Health and Hospitals Corporation.[18]

In 1973, Cabranes took a leave of absence from Rutgers Law School to accept appointment by the Governor of Puerto Rico, Rafael Hernández-Colón, as Special Counsel to the Governor and head of the Commonwealth’s Washington office (later known as the Puerto Rico Federal Affairs Administration).[19]

In 1975, he moved to New Haven, when he was appointed by Yale’s President, Kingman Brewster, Jr., as Yale’s first general counsel. He served as Yale’s general counsel also under Acting President Hanna Holborn Gray (later President of the University of Chicago) and President A. Bartlett Giamatti.[20]

While General Counsel of Yale University (1975–1980), Cabranes served in a number of part-time public positions, including as a Public Member of the United States Delegation to the Conference on Security and Cooperation in Europe (Belgrade, 1977–1978) and as Consultant to Secretary of State Cyrus R. Vance (1977–1978).[21] He was elected a member of the Council on Foreign Relations, and published a legislative history of the 1917 law that collectively conferred American citizenship of the people of Puerto Rico, Citizenship and the American Empire (Yale University Press, 1978).

President Jimmy Carter appointed Cabranes as one of the lay members of the President’s Commission on Mental Health, chaired by Mrs.Rosalyn Carter (1977–1979),[22] and President Carter was reported to have been ready to appoint him to an ambassadorial position.[23]Cabranes’s refusal to accept appointment as Ambassador to Colombia, after the Colombian government’s initial hesitation to accept a Puerto Rican as the American envoy, led to a political firestorm and charges by national Hispanic leaders of the White House’s mismanagement of an appointment they had supported.[24]

Cabranes was appointed to the U.S. District Court for the District of Connecticut in December 1979 and the U.S. Court of Appeals for the Second Circuit in August 1994.[25]

Throughout his judicial career, Cabranes’s principal avocational activity has been university trusteeship, including the boards of the two American universities of which he is an alumnus. He served as a trustee of Colgate University, in Hamilton, NY, from 1981 to 1989, and as a successor trustee of Yale (Fellow of the Yale Corporation), from 1987-1999. He was the first Roman Catholic to serve on the Yale Corporation. Since 2000, he has been a trustee of Columbia University.[26][27]

[edit]Federal judgeships

In 1979, Cabranes was in the unusual position of being seriously considered for a federal district judgeship in two different states, New York (where he had grown up) and Connecticut (where he was then serving as Yale’s General Counsel).[28] Both Senators Daniel Patrick Moynihanof New York and Abraham A. Ribicoff of Connecticut were reported to have offered to recommend his appointment to President Carter.[29]

Eventually opting for Connecticut, Cabranes accepted the offer of sponsorship of Senator Abraham A. Ribicoff. President Jimmy Carter nominated Cabranes on November 6, 1979 to the United States District Court for the District of Connecticut. Cabranes was unanimously confirmed on December 10, 1979, thus becoming the first Puerto Rican to serve as a federal judge in the continental United States.[30]

While serving on the District Court, Cabranes was elected by the Judicial Conference of the United States to the Board of the Federal Judicial Center, the educational arm of the federal judiciary whose chairman is the Chief Justice of the United States.[31] In 1988, Chief Justice Rehnquist named Cabranes as one of five federal judges on the Federal Courts Study Committee, a fifteen-member commission created by Act of Congress to study the administration of the federal courts.[32]

In 1994, it was Senator Moynihan who made possible Cabranes’s elevation to the United States Court of Appeals.[33] Moynihan recommended Cabranes for a New York seat on that Court and on May 24, 1994, President Bill Clinton nominated him to serve on the United States Court of Appeals for the Second Circuit, based in New York.[34] His nomination was confirmed unanimously by the U.S. Senate on August 9, 1994. Cabranes thus became the second Puerto Rican named to a U.S. Court of Appeals, after Juan R. Torruella who had been appointed by Ronald Reagan in 1984 to the First Circuit. Cabranes also became the first Hispanic judge to serve on the Second Circuit.

Contemporary news accounts reported that in 1993 Cabranes was considered by President Clinton for appointment to the seat on theSupreme Court of the United States that ultimately went to Ruth Bader Ginsburg.[35] Had he been appointed, Cabranes would have been the first Hispanic Supreme Court justice. These reports are confirmed in the autobiography of former Clinton administration adviser George StephanopoulosAll Too Human: A Political Education.[36] Newspaper accounts in 1994 likewise reported that Cabranes was considered for the vacancy created by the retirement of Justice Harry Blackmun, which ultimately was filled by Stephen Breyer.[37]

[edit]Notable rulings

The following decisions, among others, appear in the 2010 edition of the Almanac of the Federal Judiciary.[38]

United States v. Gatlin, 216 F.3d 207 (2d Cir. 2000): Cabranes, writing for the panel in a matter of first appellate impression, held that the district court was without congressionally authorized jurisdiction to try a civilian charged with committing a crime against an individual on a United States military installation abroad. Cabranes concluded that such crimes fell within a “jurisdictional gap” that was created 40 years ago when the Supreme Court ruled that civilians may not be tried in courts martial, and directed that a copy of the opinion be forwarded to members of Congress for their consideration. Following the panel’s decision, Congress enacted a statute remedying the jurisdictional gap.

In re United States (Coppa), 267 F.3d 132 (2d Cir. 2001): Cabranes, writing for the panel and granting the government’s petition for mandamus, held that the district court misapplied the teachings of Brady v. Maryland, 373 U.S. 83 (1963) and its progeny in holding that the government was required, as a matter of constitutional law, to disclose all impeachment evidence immediately, pursuant to defendants’ request for such, without regard to its materiality and far in advance of trial.

United States v. Thomas, 274 F.3d 655 (2d Cir. 2001) (en banc): Cabranes, writing for the unanimous en banc court, held that the teachings of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) compel the conclusion that drug type and quantity are elements of the offense under 21 U.S.C. §841 that must be charged in the indictment and submitted to the jury for its finding beyond a reasonable doubt.

United States v. Reyes, 283 F.3d 446 (2d Cir. 2002), cert. denied, 537 U.S. 833 (2002): Cabranes, writing for the panel, provided an account of the United States Probation Office functions and held that a probation officer conducting a court-imposed home visit of a convicted person serving a term of federal supervised release is not subject to the probable cause requirements of the Fourth Amendment or to the reasonable suspicion standard applicable to probation searches under United States v. Knight, 534 U.S. 112 (2001). Cabranes also concluded that, contrary to the so-called “stalking horse” theory, the law permits cooperation between probation officers and law enforcement personnel.

United States v. Quinones, 313 F.3d 49 (2d Cir. 2002), reh ‘g denied 317 F. 3d 86 (2d Cir. 2002), cert. denied, 540 U.S. 1051 (2003): Cabranes, writing for the panel, held that the district court erred by finding the Federal Death Penalty Act of 1994 unconstitutional. Cabranes held that, to the extent that the challenge against the statute relied upon the Eighth Amendment, it was foreclosed by the Supreme Court’s decision in Gregg v. Georgia, 428 U.S. 153 (1976). With respect to the Due Process Clause, Cabranes held that it protected against government infringement upon rights that were so rooted in the traditions and conscience of the people as to be ranked as fundamental, but that the claim that there was a fundamental right to a continued opportunity for exoneration throughout the course of one’s natural life was not (as the district court had suggested) a novel issue, and indeed, was foreclosed by relevant Supreme Court precedents.

United States v. Yousef, 327 F.3d 56 (2d Cir. 2003), cert. denied 540 U.S. 933 (2003): Cabranes, writing jointly with other members of the panel, held that the district court erroneously concluded that the acts charged in one of the counts against the defendant were offenses against the law of nations that supported the exercise of universal jurisdiction. Cabranes concluded that customary international law currently does not provide for the prosecution of “terrorist” acts under the universality principle, in part due to the failure of States to achieve anything like consensus on the definition of terrorism. Cabranes nonetheless held that prosecution and conviction of the defendant on the count in question was both consistent with and required by the United States’ treaty obligations and domestic laws.

Flores v. Southern Peru Copper Corporation, 343 F.3d 140 (2d Cir. 2003): Cabranes, writing for the panel, held that customary international law, for the violation of which an alien has a private right of action under Alien Tort Claims Act, 28 U.S.C. § 1350, is limited to those clear and unambiguous rules by which states universally abide, or to which they accede, out of a sense of legal obligation and mutual concern. Cabranes concluded that the rights to life and health are insufficiently definite to constitute rules of customary international law and that plaintiffs, who alleged that Peruvian operations of an American mining company had caused severe lung disease, have not submitted evidence sufficient to establish that customary international law prohibits intranational pollution.

Church of the American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2d Cir. 2004), cert. denied 125 S. Ct. 655 (2004): Cabranes, writing for the panel, upheld New York’s anti-mask statute against constitutional challenge, holding that masks worn by self-described members of an “unincorporated political membership association that advocates on behalf of the white race and the Christian faith” did not constitute expressive conduct entitled to first amendment protection. Cabranes concluded that where a statute banning conduct imposes a burden on the wearing of an element of an expressive uniform, which element has no independent or incremental expressive value, the first amendment is not implicated.

Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005): Cabranes, writing for the panel, affirmed a district court’s dismissal of a suit alleging excessive force on the part of New York police officers. Cabranes held that, notwithstanding the general rule that district courts may not weigh evidence or assess the credibility of witnesses at the summary judgment stage, a district court may grant summary judgment where a plaintiff relies almost exclusively on his own testimony and that testimony is “so replete with inconsistencies and improbabilities” that no reasonable juror would undertake the suspension of disbelief necessary to credit he allegations made in the complaint.

Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006) (en banc): Cabranes, writing for a majority of the en banc court, held that section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, did not extend to a New York statute that disenfranchised currently incarcerated felons and parolees, N.Y. Elec. Law §5-106. Cabranes held that Congress did not intend to include prisoner disenfranchisement provisions of the type adopted by New York within the coverage of section 2 of the Voting Rights Act, and that Congress made no clear statement of an intent to modify the federal balance by applying the Voting Rights Act to these provisions.

Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007): In a concurring opinion, Cabranes urged the Supreme Court to revisit and clarify its precedents on pleading standards in order to determine whether they strike the right balance between the need to deter unlawful conduct and the dangers of exposing public officials to burdensome litigation. The Supreme Court granted certiorari to consider the adequacy of the pleadings in this case. See Ashcroft v. Iqbal, 128 S.Ct. 2931 (2008).

Mora v. New York, 524 F.3d 183 (2d Cir. 2008): Cabranes, writing for a unanimous panel on a question of first impression, held that the requirement of Article 36 of the Vienna Convention on Consular Relations that a detained alien be informed of the availability of consular notification and access did not establish a right that could be vindicated in a civil rights action for damages. He also concluded that the detention of an alien without being informed of the availability of consular notification and access did not amount to a tort in violation of customary international law cognizable under the Alien Tort Statute.

Ricci v. DeStefano, 530 F.3d 88 (2d Cir 2008): In a dissenting opinion joined by five other members of the 13-member court, Cabranes objected to the perfunctory affirmance of an award of summary judgment to the defendants in a civil rights action. Cabranes dissented from the denial of en banc rehearing of this case, observing that the appeal raised important questions of first impression regarding the application of the Fourteenth Amendment’s Equal Protection Clause and Title VII’s prohibition on discriminatory employment practices-primarily, whether a city employer may disregard the results of a qualifying employment examination, which was carefully constructed to ensure race-neutrality, on the gound that the results of that examination yielded too many qualified applicants of one race and not eough of another. Cabranes urged the Supreme Court to consider the question, and the Supreme Court granted certiorari on January 9, 2009. The Supreme Court reviewed the decision to dimsiss the suit, reversed it, and took the unusual step of granting judgment for the firefighters.

Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008): In an action brought by a dual citizen of Canada and Syria arising from his alleged detention in the United States, transfer to Syria, and detention and torture in Syria, Cabranes, writing for a unanimous panel, held that the court had jurisdiction over the defendant government officials and that the plaintiff had failed to state a claim under the Torture Victim Prevention Act. Writing for the panel majority, Cabranes affirmed the dismissal of the plaintiff’s claims brought under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), on the grounds that (1) an alternative remedial scheme precluded recognition of the claims, and (2) special factors counseled hesitation in creating a new and freestanding Bivens remedy.

In re Terrorist Bombings (Fourth Amendment Challenges), 552 F.3d 157 (2d Cir. 2008): Affirming the convictions of Al Qaeda terrorists for their involvement in the bombing of the American Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, Cabranes held, as a matter offirst impression, that the Fourth Amendment’s warrant requirement does not govern searches of U.S. citizens conducted abroad by U.S. agents; such searches need only satisfy the Fourth Amendment’s requirement of reasonableness. Cabranes also held that a district court’s ex parte, in camera evaluation of evidence submitted by the government in opposition to a suppression motion is appropriate when national security considerations weigh in favor of maintaining the confidentiality of that evidence.

In re Terrorist Bombings (Fifth Amendment Challenges) 552 F.3d 177 (2d Cir. 2008): Considering the motions to suppress statements made overseas to U.S. and non-U.S. officials by defendants convicted of participation in the bombing of American Embassies in East Africa, Cabranes held that oral warnings provided by a federal prosecutor were sufficient to apprise the defendants of their Miranda rights insofar as they had any such rights. In addition, Cabranes held that defendants’ 14-day incommunicado detention in Kenyan custody did not render their post-warning statements involuntary and that, in order to reopen suppression proceedings, the government is not required to offer a reasonable justification for not having presented evidence at an earlier proceeding.

SEC v. Dorozhko, 574 F.3d 42 (2d Cir. 2009): Writing for a unanimous panel, Cabranes held that the United States Securities and Exchange Commission could sue a computer hacker under Section 10(b) of the Securities Exchange Act of 1934 even though the defendant was neither a fiduciary nor corporate insider, so long as the theory of fraud was an affirmative misrepresentation in connection with the purchase or sale of a security, rather than the violation of a duty to disclose the basis for a trade.

In re N.Y. Times Co., 577 F.3d 401 (2d Cir. 2009): Cabranes, writing for a unanimous panel, held that neither the First Amendment nor the common law right of access entitled the New York Times and other media companies to review wiretap applications that were sealed pursuant to a federal statute, where the media companies had not met the statutory threshold of “good cause.” The wiretap applications were submitted and approved as part of a federal investigation of the “Emperor’s Club,” a prostitution ring linked to the former Governor of New York, Elliot Spitzer.

Henry v. Ricks, 578 F.3d 134 (2d Cir. 2009): Writing for a unanimous panel, Cabranes held that a ruling of the New York Court of Appeals that affected the elements of depraved indifference murder under New York law did not apply retroactively in a state prisoner’s habeas petition. Notably, Cabranes held that the Due Process Clause did not require the retroactive application of a change in state criminal law.

United States v. Ray, 578 F.3d 184 (2d Cir. 2009): Considering a speedy-trial challenge to a sentence imposed 15 years after conviction, Cabranes, writing for a unanimous panel, held that the Speedy Trial Clause of the Sixth Amendment applies to trials only, not to sentencing proceedings. Although the Sixth Amendment was inapplicable to the appellant’s sentencing, Cabranes held that the Due Process Clause of the Fifth Amendment did apply to sentencing proceedings. Because the 15-year delay in sentencing was not justified by any legitimate reason and was prejudicial, the sentence violated the Due Process Clause.

United States v. Rigas, 583 F.3d 108 (2d Cir. 2009): Writing for a unanimous panel, Cabranes upheld the sentences imposed on John J. Rigas and Timothy J. Rigas, the former CEO and CFO of Adelphia Communications Corp, which was among the largest U.S. cable companies before its collapse in an accounting scandal. Cabranes rejected arguments that the sentences were “substantively unreasonable,” and described that standard as akin to a “manifest-injustice” or a “shocks-the-conscience” standard. In other words, wrote Cabranes, appellate review of the substance of a sentence “provide[s] a backstop for those few cases that, although procedurally correct, would nonetheless damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.”

Selevan v. New York Thruway Authority, 584 F.3d 82 (2d Cir. 2009): Cabranes, writing for a unanimous panel, held that plaintiffs, who challenged an interstate highway toll policy that afforded a discount to citizens of Grand Island, New York stated claims under several provisions of the Constitution, including the “dormant” Commerce Clause, the Equal Protection Clause, and the Privileges and Immunities Clause of the Fourteenth Amendment. Cabranes rejected the New York Thruway Authority’s argument that its action was not subject to scrutiny under the dormant Commerce Clause because it was a “market participant,” and the opinion established that dormant Commerce Clause challenges to highway toll policies must be analyzed under the factors set forth in the Supreme Court’s opinion in Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 369 (1994). Cabranes also held that one of the plaintiffs, who was a United States citizen residing in Canada, could not state a claim under the Privileges and Immunities Clause of Article IV, which, he explained, was designed to integrate the several states into coherent whole and did not afford protection to residents of foreign countries.

[edit]Notable publications

Cabranes is the author of Citizenship and The American Empire (Yale 1979), a legislative history of the United States citizenship of the people of Puerto Rico, and (with Kate Stith), Fear of Judging: Sentencing Guidelines in the Federal Courts (University of Chicago Press, 1998).

[edit]Recent publications & lectures

International Law by Consent of the Governed, 42 Valparaiso Law Review 119 (2007) (Indiana Supreme Court Lecture of 2006)

Myth and Reality of University Trusteeship in the Post-Enron Era, 76 Fordham Law Review 955 (2007) (The Robert L. Levine Distinguished Lecture of 2007)

Our Imperial Criminal Procedure: Problems in the Extraterritorial Application of U.S. Constitutional Law, 118 Yale Law Journal 1660 (2009) (The Charles Evans Hughes Memorial Lecture, New York County Lawyers’ Association, 2008)

The Costs of Judging Judges by the Numbers, 28 Yale Law and Policy Review 313 (2010) (with Marin K. Levy and Kate Stith)

[edit]Awards & recognition

Among the many awards received by Cabranes are the following:

  • John Jay Award from Columbia University (1991)
  • Connecticut Bar Association Henry J. Naruk Judiciary Award (1993)
  • Gavel Award (Certificate of Merit) of the American Bar Association (1999)
  • Federal Bar Council’s Learned Hand Medal for Excellence in Federal Jurisprudence (2000)


Cabranes is married to Kate Stith-Cabranes, the Lafayette S. Foster Professor of Law and former Acting Dean (2009) at Yale Law School and Cabranes’s co-author of Fear of Judging: Sentencing Guidelines in the Federal Courts (University of Chicago, 1998). They are the parents of four children: Jennifer Cabranes Braceras, a lawyer in Massachusetts, and Amy Cabranes, Director of Development of the Los Angeles Museum of the Holocaust, both born to Jose Cabranes’s first marriage, to Susan Feibush; Alejo Cabranes, a recent graduate of Dartmouth College; and Benjamin Jose Cabranes, an undergraduate at Dartmouth.

Kate Stith-Cabranes is a native of St. Louis, Missouri, and a graduate of Dartmouth Collegeand Harvard Law School. She clerked on the Supreme Court for Justice Byron R. White. She is a former Assistant United States Attorney of the United States Attorney’s Office for the Southern District of New York. Kate Stith-Cabranes served for eleven years as a trustee of Dartmouth College.

[edit]See also


Constructs such as ibid. and loc. cit. are discouraged by Wikipedia’s style guide for footnotes, as they are easily broken. Please improve this article by replacing them with named references (quick guide), or an abbreviated title. (March 2011)
  1. ^ “Profile: Judge José A. Cabranes,” Puerto Rico Herald
  2. ^ “Carmen Cabranes, 96, Puerto Rico Activist,” New York Sun
  3. ^ “Carmen L. Cabranes Dies, U.S. Judge’s Mother,” Hartford Courant
  4. ^ Ibid.
  5. ^ Ibid.
  6. ^ “Manuel Cabranes, Puerto Rican Aide in City for 20 Years,” N.Y. Times
  7. ^ “Pinero Cites Gains by Puerto Ricans,” N.Y. Times, July 23, 1948; “Honor Settlement House Head,” N.Y. Times, Feb. 11. 1948.
  8. ^ “Aid Plan Outlined for Puerto Ricans,” N.Y. Times, Sept. 15, 1949; “City Puerto Ricans: Complex Problem,” N.Y. Times, Oct. 3, 1949; “Puerto Ricans Here Said to be Exploited,” N.Y. Times, Feb. 20, 1950; “Unions Plan Help to Puerto Ricans,” N.Y. Times, March 24, 1950; “Alien Farm Labor Protested Amid Political, Racial Rifts,” N.Y. Times, April 4, 1950; “Teaching Planned for Puerto Ricans,” N.Y. Times, Aug. 22, 1950; “Manuel Cabranes, Puerto Rican Aide in City for 20 years,” N.Y. Times; Feb. 17, 1984; “Aid Plan Outlined for Puerto Ricans,” N.Y. Times, Sept. 15, 1949; “500 Pickets Blast Newspaper Series on Puerto Ricans,” N.Y. World Telegra, Oct. 31, 1947; “They Flee Dark Future to Warm Sun to Become City’s Problem Brood,” Sunday News, Oct. 12, 1947; “Solution is Sought to Migrant Influx,” N.Y. Times, Aug. 4, 1947; “Crime Increasing in ‘Little Spain’ ,” N.Y. Times, Aug. 2, 1947; “Official Worried by Influx of Migrant Puerto Ricans,” N.Y. Times, Aug. 2, 1947; “Puerto Rico Rush Boosts City Woes,” N.Y. Journal-American, Aug. 2, 1947; “Little Puerto Rico, A Gigantic Sardine Can,” N.Y. World-Telegram, May 2, 1947.
  9. ^ Richard H. Parke, “Grand Jurors Here Study Death Plot,” N.Y. Times, Nov. 3, 1950.
  10. ^ “Foster Care Aide Sworn,” N.Y. Times, Aug. 25, 1951.
  11. ^ “2 Named Consultants to the City Welfare Chief,” N.Y. Times, March 3, 1954.
  12. ^ “Feast of St. John to Brighten City,” N.Y. Times, June 23, 1956.
  13. ^ “To Aid Puerto Ricans,” N.Y. Times, Jan. 16, 1952; Mac Lopez, “De Maestro en Puerto Rico a Consultor de Bienestar Publico en Nueva York,” El Diario de Nueva York, Jan. 27, 1963.
  14. ^ “Manuel Cabranes, Puerto Rican Aide in City for 20 Years,” N.Y. Times
  15. ^ [1] Columbia Trustee Biography
  16. ^ “Law Professor Is Named Board Chairman of Aspira,” N.Y. Times, Sept. 13, 1971; Jerry Tallmer, “Daily Closeup: He Speaks the Language,” N.Y. Post, Sept. 27, 1971
  17. ^ “Yale Counsel in Right Place at Right Time: Cabranes a Contender in 2 U.S. Districts,” N.Y. Law Journal, July 25, 1979; Court biography; Yale Weekly Bulletin and Calendar, Oct. 3-10, 1977.
  18. ^ Ibid.; “City Aide Named to Succeed Lacot in Lincoln Hospital,” N.Y. Times, Nov. 18, 1971.
  19. ^ “Yale Counsel in Right Place at Right Time: Cabranes a Contender in 2 U.S. Districts,” N.Y. Law Journal, July 25, 1979; Court biography; Yale Weekly Bulletin and Calendar, Oct. 3-10, 1977.
  20. ^ Ibid.
  21. ^ Ibid.; “Cabranes Named to Human Rights Post,” San Juan Star, Oct. 8, 1977.
  22. ^ “Two at Yale Selected for President’s Panel,” New Haven Register, March 29, 1977.
  23. ^ “Hispanic-American Turns Down Envoy’s Post Amid Controversy,” N.Y. Times, June 13, 1977; “Yale Official Turns Down Colombia Ambassadorship,” Wash. Post, June 14, 1977.
  24. ^ Ibid.
  25. ^ [2] Columbia Trustee Biography
  26. ^ Dan Oren, Joining the Club 434 (2d. ed. 2000); Columbia University website.
  27. ^ [3] Columbia Trustee Biography
  28. ^ “Yale Counsel in Right Place at Right Time for Judgeship: Cabranes a Contender in 2 U.S. Districts,” N.Y. Law Journal, July 25, 1979; “Opportunities’ Knocks Put Judge High on List,” N.Y. Times, May 9, 1994; “At the Bar, “ N.Y. Times, May 28, 1993.
  29. ^ “A Puerto Rican for the Federal Court,” N.Y. Times, Dec. 21, 1979.
  30. ^ Ibid.
  31. ^ Report of Federal Judicial Center (1984).
  32. ^ Report of the Federal Courts Study Committee (April 2, 1990).
  33. ^ “Federal Judge To Be Elevated to Appeals Slot,” N.Y. Times, May 25, 1994, “Opportunities’ Knocks Put Judge High on Lists,” N.Y. Times, May 9, 1994; “Opportunities’ Knocks Put Judge High on Lists,” N.Y. Times, May 9, 1994; see also [4] “At the Bar; For President Clinton, old-school ties take precedence over senators’ wishes in a search for a judge,” N.Y. Times, Oct. 29, 1993.
  34. ^ Ibid.
  35. ^ “Clinton Nears Choice for High Court Nominee,” N.Y. Times, May 20, 1993.
  36. ^ George Stephanopolous, All Too Human: A Political Education 189 (2000).
  37. ^ “Opportunities’ Knocks Put Judge High on Lists,” N.Y. Times, May 9, 1994.
  38. ^ Almanac of the Federal Judiciary, Vol. II (Aspen 2010).

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