Page 18 - Suffolk University Law Review
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7] THE EVOLUTJON OFDEMOCRATIC GOVERNANCE 609
application of the Constitution authorized in the Insular Cases, but without the
racial premises undergirding those cases.134 The trend is toward inclusion of
constitutional rights and protections in unincorporated areas. lndeed,
Boumediene approvingly cites Justice Hugo Black's characterization of
territorial govemance under the Insular Cases as "temporary."135
Furthermore, in Boumediene, the U.S. Supreme Court asserted its authority
to establish constitutional l imits for actions taken by Congress and the
executive branch under the Territorial Clause.136 Holding that "[t]he
Constitution grants Congress and the President the power to acquire, dispose
of, and govem territory, not the power to decide when and where its terms
apply," the Court noted that "[a]bstaining from questions involving formal
sovereignty and territorial govemance is one thing. To bold the political
branches have the power to switch the Constitution on or off at will is quite
another."137 The time has come for the Court to establish a more effective
democratic framework for the congressional exercise of territorial power. As
Judge Gustavo A. Gelpí, a judge in the U.S. District Court for the District of
Puerto Rico, soberly concludes in his study of the Insular Cases: "The time
has very much belatedly come for the U.S. Supreme Court to revisit and
remedy the anachronistic and denigrating judicial predicament that toda y nearly
five million United States citizens residing in Puerto Rico and other U.S.
territories have sustained for more than l l O years."138 To fulfill thc
foundational rights embodied by the Declaration of Independence, the U.S.
Supreme Court must establish parameters for congressional exercise of
territorial power, especially in federal programs allocating benefits and
entitlements that may discriminate between citizens residing in nonincorporated
areas versus those residing in states.139
In his treatise on territorial policy, Amold Leibowitz points out that while
the U.S. Supreme Court has been willing to protect the civil liberties of citizens
in nonincorporated areas, the Court has been less willing to protect their rights
to political and economic participation, or to recognize power in territorial
governments unless specifically licensed by Congress.!" Leibowitz writes
134. See id. al 757 (explaining Constitution applies with "independent force" in territories).
135. See id. ar 759 (recognizing Justice Black's contrasting view of Insular Cases and subsequent territory
cases).
136. See id. at 765 (restraining ability of President and Congress to dictate constitutional applicability in
territories).
137. See Boumediene, 553 U.S. at 765 (asserting Court's power to interpret laws).
138. See Hon. Gustavo A. Gelpí, Tite Insular Cases: A Comparative Historical Study of Puerto Rico,
Hawai'i. and the Philippines, FED. LAW., Mar-Apr. 2011, at 22, 25 (discussing Puerto Rico's unique territorial
status).
139. See LEIBOWITZ, supra note 2, at 212-13 (discussing differentiaJ tax rreatment for U.S. citizens
residing in U.S. states and in Puerto Rico); Ángel R. Oquendo, At Rock Bottom: Puerto Rico 's Grises and Self-
Determination, 41 N.Y.U. REv. L. & soc. CHANGE 253, 254-57 (2017) (criticizing govemmcnt's treatment of
U.S. citizens residing in Puerto Rico).
140. See Lsraowrrz, supra note 2, at 40-42 (critiquing U.S. stance oa Puerto Rican citizens'
application of the Constitution authorized in the Insular Cases, but without the
racial premises undergirding those cases.134 The trend is toward inclusion of
constitutional rights and protections in unincorporated areas. lndeed,
Boumediene approvingly cites Justice Hugo Black's characterization of
territorial govemance under the Insular Cases as "temporary."135
Furthermore, in Boumediene, the U.S. Supreme Court asserted its authority
to establish constitutional l imits for actions taken by Congress and the
executive branch under the Territorial Clause.136 Holding that "[t]he
Constitution grants Congress and the President the power to acquire, dispose
of, and govem territory, not the power to decide when and where its terms
apply," the Court noted that "[a]bstaining from questions involving formal
sovereignty and territorial govemance is one thing. To bold the political
branches have the power to switch the Constitution on or off at will is quite
another."137 The time has come for the Court to establish a more effective
democratic framework for the congressional exercise of territorial power. As
Judge Gustavo A. Gelpí, a judge in the U.S. District Court for the District of
Puerto Rico, soberly concludes in his study of the Insular Cases: "The time
has very much belatedly come for the U.S. Supreme Court to revisit and
remedy the anachronistic and denigrating judicial predicament that toda y nearly
five million United States citizens residing in Puerto Rico and other U.S.
territories have sustained for more than l l O years."138 To fulfill thc
foundational rights embodied by the Declaration of Independence, the U.S.
Supreme Court must establish parameters for congressional exercise of
territorial power, especially in federal programs allocating benefits and
entitlements that may discriminate between citizens residing in nonincorporated
areas versus those residing in states.139
In his treatise on territorial policy, Amold Leibowitz points out that while
the U.S. Supreme Court has been willing to protect the civil liberties of citizens
in nonincorporated areas, the Court has been less willing to protect their rights
to political and economic participation, or to recognize power in territorial
governments unless specifically licensed by Congress.!" Leibowitz writes
134. See id. al 757 (explaining Constitution applies with "independent force" in territories).
135. See id. ar 759 (recognizing Justice Black's contrasting view of Insular Cases and subsequent territory
cases).
136. See id. at 765 (restraining ability of President and Congress to dictate constitutional applicability in
territories).
137. See Boumediene, 553 U.S. at 765 (asserting Court's power to interpret laws).
138. See Hon. Gustavo A. Gelpí, Tite Insular Cases: A Comparative Historical Study of Puerto Rico,
Hawai'i. and the Philippines, FED. LAW., Mar-Apr. 2011, at 22, 25 (discussing Puerto Rico's unique territorial
status).
139. See LEIBOWITZ, supra note 2, at 212-13 (discussing differentiaJ tax rreatment for U.S. citizens
residing in U.S. states and in Puerto Rico); Ángel R. Oquendo, At Rock Bottom: Puerto Rico 's Grises and Self-
Determination, 41 N.Y.U. REv. L. & soc. CHANGE 253, 254-57 (2017) (criticizing govemmcnt's treatment of
U.S. citizens residing in Puerto Rico).
140. See Lsraowrrz, supra note 2, at 40-42 (critiquing U.S. stance oa Puerto Rican citizens'
