Christina Duffy Burnett and Burke Marshall, eds.
Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the
Durham: Duke University Press, 2001. xv + 425 pp. Notes on contributors
index. $69.95 (cloth), ISBN 0-8223-2698-1 ISBN 0-8223-2698-1; $23.95
(paper), ISBN .
Bartholomew H. Sparrow , University of Texas at Austin.
and the Liminal Status of the U.S. Territories
Americans think of the United States as having a liberal,
federal republic: "liberal," because it is founded on principles of
political equality and individual rights; "federal," because the
responsibilities of government are divided between the state and national
governments, and because political representation is determined
geographically, by state and state-based congressional districts; a
"republic," because decisions are made by citizens indirectly, through
elected officeholders and their appointees.
The existence of Puerto Rico belies all three commonplaces.
Puerto Rico is part of the United States, yet Puerto Ricans do not enjoy
the same individual rights as U.S. citizens from the fifty states (they
are not guaranteed the right to trial by jury, for instance) or receive
the same membership benefits (Congress has capped SSI and AFDC benefits
for Puerto Rican recipients). Puerto Rico comes under the sovereignty of
the United States (under the 1899 Treaty of Paris, following the
Spanish-American War, and the Supreme Court's rulings in the Insular
Cases, beginning with Lima v. Bidwell, 182 U.S. 1 ) and
is subject to the plenary power of Congress, the executive branch, and the
federal courts, yet it lacks representation in the legislative or
Foreign in a Domestic Sense: Puerto Rico, American
Expansion, and the Constitution,
a compilation of essays by federal judges, legal scholars, political
scientists, and others edited by Christina Duffy Burnett and Burke
Marshall, sheds important light on the historical, constitutional,
cultural, and political realities of the Commonwealth of Puerto Rico and,
more generally, the expansion of the United States beyond the fifty
states. The editors divide the seventeen chapters (and "A Note on the
Insular Cases" by Burnett) into four sections, "History and
Expansion," "Expansion and Constitution," "Constitution and Membership,"
and "Membership and Recognition."
The contributors approach Puerto Rico's political position
from distinct viewpoints, a diversity that illuminates the many aspects of
Puerto Rico's position as an "unincorporated territory." At the same time,
the diversity of the contributions - from, say, Mark Weiner's exposition
of the Teutonic ethno-juridical discourse reflected in the Insular
Cases to Richard Thornburgh's explanation of U.S. territorial policy
with respect to Puerto Rico based on his political experience in the Bush
administration -- highlights those points where the contributions
Several of these points bear restatement.
One is that Puerto Rico is a colony, subject to the
sovereignty of the U.S. government, a government over which Puerto Rico
has little effective control. The terms of the Treaty of Paris, in
conjunction with the Insular Cases (most notably Downes v.
Bidwell, 182 U.S. 244 ) and the 1952 legislation that
established Puerto Rico as a commonwealth, have kept it as a dependency of
the United States. Puerto Rico thus stands as a contradiction to the
principles of representative government. Indeed, its status does not match
the U.N.'s 1960 criteria of decolonization. Instead, the U.S. government
has claimed that the status of Puerto Rico is a domestic matter, beyond
the jurisdiction of the United Nations.
Even so, to identify Puerto Rico as a "colony" may obscure
as much as it reveals. A majority of Puerto Ricans have not approved
alternatives to the status quo, whether statehood or independence.
Instead, plebiscites conducted in 1993 and 1998 indicate that Puerto
Ricans are deeply divided over the future of Puerto Rico, although the
plebiscites suggest that only a small minority seeks complete independence
from the United States. Furthermore, the federal courts have upheld Puerto
Rico's distinctive commonwealth status, rejecting the propositions that
federal laws apply municipally (as they would if Puerto Rico were simply
an unincorporated territory), that Puerto Rico has no sovereignty
whatsoever, and that the establishment of the Commonwealth did not change
the nature of the relationship between Puerto Rico and the U.S.
Also, there is the $10 billion a year in aid that Puerto
Rico receives from the United States, a benefit that its political leaders
presumably do not want to forgo. Finally, Puerto Ricans can exit: they can
move to the states, especially New York and Florida (see Burnett
and Marshall, Cabranes, Thomas, Rivera Ramos, Statham, Trías Monge, and
A second point of consensus is the contributors' focus on
the Insular Cases, a series of 23 Supreme Court decisions beginning
in 1901 that distinguished between U.S. territories that were assumed to
be temporary dependencies and later to become states, and those that were
to remain as territories and not to become states. Yet the ruling of the
Insular Cases, creating the category of "unincorporated territory,"
has no basis in the Constitution (in fact, the Constitution is silent on
the quantity and quality of U.S. territorial expansion) and runs contrary
to democratic principles of self-rule.
Nonetheless, the Insular Cases have provided the
legal justification for the United States' overseas possessions, and they
have legitimated the second-class status accorded to the inhabitants of
Puerto Rico, the Philippines (from 1898 until 1946), Guam, American Samoa,
the U.S. Virgin Islands (after 1917), and the Northern Marianas (after
1975). The Supreme Court has cited the Insular Cases as recently as
1978, 1980, and 1999. Given the implication of the Insular Cases
that not only does the U.S. Constitution not necessarily apply to U.S.
territories (for that had been true of the contiguous continental
territories as well), but that it may never fully apply to some areas and
persons coming under U.S. sovereignty, the Insular Cases may well
represent one of Bruce Ackerman's "constitutional moments": those
decisions effectively amended the Constitution by writing imperialism into
the document, a "structural amendment" subsequently ratified by the
American public in the election of William McKinley over Williams Jennings
Bryan in 1900.
Yet whereas U.S. imperialism was a central issue of the
1900 presidential campaign and the Insular Cases were, at the last
turn of the century, the most controversial set of cases in Supreme Court
history since Dred Scott v. Sandford (60 U.S. [19 Howard] 393
), the constitutionality and politics of the U.S. territories have
received virtually no attention from leading politicians, academics,
jurists, or journalists at the present turn of the century (see
Burnett and Marshall, Weiner, Thomas, Rivera Ramos, Levinson, Neuman,
Trías Monge, and Torruella).
A third point mentioned by several contributors is the
salience of race. The reason for the distinction made between Puerto Rico
and the other territories acquired after the Spanish-American War (Guam,
the Philippines), on the one hand, and the stateside territories (and
Alaska and Hawaii), on the other hand, was the widespread acceptance of
white racial superiority. A majority of the justices of the Supreme Court
of the early 1900s, prominent members of Congress and other politicians,
leading journalists, and academics believed in Anglo-American racial
superiority and, therefore, in their justified political dominance.
This turn-of-the-century emphasis on racial difference is
consistent with the Court's earlier rulings in Plessy v. Ferguson,
163 U.S. 537 (1896) and on Chinese exclusion (e.g., Chae Chan
Ping v. U.S., 130 U.S. 581 ). As the target of racial politics,
Puerto Rico shares its experience with the U.S. government's treatment of
American Indians, African Americans, the Mexicans living in the 1848
Mexican cession, Asian immigrants to the United States in the late
nineteenth and early twentieth centuries, and, arguably, Washington, D.C.
and its majority population of African Americans, among others. Each of
these groups had or has received but "partial membership" in the United
States (see Burnett and Marshall, Weiner, Thomas, Perea, Tushnet,
Puerto Rico is thus hardly alone in its liminal position,
"belonging to, but not part of the United States." Although Puerto Rico
has an old and distinct culture (it is a "nation" with respect to language
and cultural identity) and is a commonwealth (unlike the other
territories, with the exception of the Northern Marianas), other
territories have rich histories and cultures (e.g., Guam, American
Samoa) and several of the states are nominally commonwealths (e.g.,
Massachusetts, Kentucky, Pennsylvania, and Virginia). The challenges that
Puerto Rico poses to the Constitution, Congress, and democratic theory are
also, then, those posed by the other U.S. territories. But Puerto Rico's
proximity and population (with 3.8 of the 4 million inhabitants of the
U.S. territories and with another two million Puerto Ricans residing
stateside) make it the logical focal point for the fundamental questions
of constitutional government, identity, and federalism raised by the
existence of the U.S. territories (see Burnett and Marshall,
Weiner, Rivera Ramos, Perea, Neuman, Tushnet, and Smith).
A fourth point that runs through the chapters -- and there
are other points that might be underscored, to be sure -- is the sense of
injustice, frustration, and even moral outrage expressed by many
contributors over how the Supreme Court, Congress, the White House, the
Department of Interior, and academics have treated Puerto Rico and the
unresolved constitutional and political issues of its dependent status. It
is hard to argue that the political and legal treatment of Puerto Rico and
the other U.S. territories are consistent with the principles of
self-determination and limited government contained in the Declaration of
Independence, the U.S. Constitution, and the Bill of Rights. Not only did
American political and intellectual elites create Puerto Rico's unequal
and subordinate position, but these inequalities and injustices have been
allowed to persist (see Cabranes, Weiner, Thomas, Levinson, Perea,
Trías Monge, Aponte Toro, and Smith).
Although some of the scholarship in Foreign in a
Domestic Sense is foreshadowed by earlier work by José Cabranes, Juan
Torruella, José Trías Monge, Arnold Leibowitz, Raymond Carr, and Gordon
Lewis, among others, the editors and the publisher perform a great service
by collecting in one place such a rich collection of essays from not only
from specialists on Puerto Rico and the U.S. territories (e.g.,
Cabranes, Statham, Trías Monge, Torruella, Aponte Toro, Rivera Ramos, and
Ricardo Oquendo), but also those of other scholars (e.g., Neuman,
Levinson, Tushnet, Smith) and former political officials (i.e., Marshall,
Thornburgh) who are known for work other than that on Puerto Rico, the
Insular Cases, or territorial issues. More, several chapters (such as
Juan Perea's overview of the racism intrinsic to U.S. territorial
expansion and Gerald Neuman's exploration of the limits to the U.S.
Constitution as it applies to territorial inhabitants), address topics
that could themselves be expanded into book-length projects.
In sum, Foreign in a Domestic Sense is a valuable,
extremely useful volume that should inform many about the constitutional
and political issues of Puerto Rico's position as a U.S. territory. Not
only do the Insular Cases, the status of Puerto Rico, and U.S.
territorial history deserve a wider audience in law schools, as Sanford
Levinson writes, but they should also to be included as staples of
introductory courses in U.S. government and American studies.
Unfortunately, Puerto Rico and the other territories have been nearly
invisible to U.S. citizens of the states, a situation that this volume
could well help to ameliorate.
Foreign in a Domestic Sense
does leave some key issues underexplored (which may be unavoidable, given
that it is an edited volume, the product of an academic conference).
Reading Foreign in a Domestic Sense as a person trained in
political science, I found several topics touched on or implied by the
contributors that merit further examination.
One is the current cost of colonialism. How does Puerto
Rico's status as a colony affect, say, its quality of life (e.g.,
the U.S. Navy's continued use of Vieques as a military training site), its
economic well-being (e.g., Puerto Rico, under the U.S. dollar,
being more expensive to non-American tourists and investors, than if it
had its own currency), or its environmental quality (e.g., the
regulations and conditions under which corporations operate on the
island)? Foreign in a Domestic Sense contains little on the actual
political or economic ingredients of contemporary colonialism in Puerto
A second area for further research is the politics of
Puerto Rico's political future, whether one of statehood, an "enhanced
commonwealth" (an "asymmetrical federalism" closer to Quebec's
relationship with the rest of Canada), or national independence. Ángel
Ricardo Oquendo and Richard Thornburgh both address the political
divisions in Puerto Rico over its political future, and Ricardo Oquendo
points out that if Puerto Rico were a state, it would have more
representatives than half the existing states and would receive more aid
per person than any other state under current formulas. And several
contributors note that it is up to Congress to take the lead in the
determination of Puerto Rico's future (see Burnett and Marshall,
Aponte, Álvarez González, Ricardo Oquendo, Thornburgh, and Smith). Yet the
reader learns little about what Puerto Rican politicians and leading
interests have to gain or lose through statehood, commonwealth status, or
independence -- apart from the $10 billion in annual U.S. government aid.
More important, research also must address the congressional politics of
the admission of Puerto Rico as a state, a continuation of the status quo,
or a retrocession of sovereignty to Puerto Rico, especially since what
happens in Washington will no doubt be dispositive.
A third issue suggested by the discussions of Puerto Rico's
future is the importance of the decision rules used to determine Puerto
Rico's standing. Who sets the timing, frames the choices, and drafts the
phrasing of plebiscites on Puerto Ricans' future (even assuming that
Congress would agree to a binding plebiscite)? It matters a great deal
whether the choice is put as a trichotomous choice (statehood,
commonwealth, or independence), or as a series of dichotomous votes
(between the status quo or change, and then, if a majority opts for
change, between statehood or an enhanced commonwealth). For as election
studies reveal, the dynamics of a three-way race with three viable
candidates or options are quite distinct from those a series of two-person
or two-option competitions. The plebiscite in the Northern Marianas held
in 1975 that successfully led to its affiliation with the United States as
the Commonwealth of the Northern Mariana Islands (CNMI) took the form of
twofold choice, for instance: a choice either for or against the Covenant
for the establishment of the CNMI.
That Foreign in a Domestic Sense provokes such
further inquiry is a measure of the symposium's success. Christina Duffy
Burnett, Burke Marshall, and Duke University Press have provided an
important and helpful service to students of the Constitution, American
political development, and the political system of the present-day United
States. That some of the contributors disagree with one another, and that
these essays could well spur further work along several different avenues
of study are signs of the complexity of the topic and of the vitality and
value of this fine book's endeavor.
Library of Congress
Call Number: KF4635.F67 2001
* Constitutional law -- United States -- Territories
* United States -- Territories and possessions -- Politics and
* Constitutional law -- Puerto Rico
* Puerto Rico -- Politics and government
Citation: Bartholomew H. Sparrow . "Review of Christina
Duffy Burnett and Burke Marshall, eds, Foreign in a Domestic Sense: Puerto
Rico, American Expansion, and the Constitution," H-Law, H-Net Reviews,
January, 2002. URL:
“This important and
thoughtful book…presents nineteen essays on an American constitutional
anomaly…All of the essayists, half of them from Puerto Rico and half of
them from the mainland, agree that [the] ‘separate and unequal’ treatment
of American citizens is a disgraceful survival of turn-of-the-century
racial and cultural prejudice, preserved into a new millennium, and that
reform is long overdue.”
Samuel Shapiro, review of
Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the
Constitution, by Christina Duffy Burnett and Burke Marshall, eds.,
The Journal of American History 89 (September 2002): 662.