Page 2 - Suffolk University Law Review
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e Evolution of Democratic Governance Under the Territorial
Clause of the U.S. Constitution
Rafael Hemández Colón*
l. !NTRODUCTION
On July 4, 1776, Toe Declaration of Independence promulgated the
foundational principies of the United States of America:
We hold these truths to be self-evident, that all menare created equal, that they
are endowed by their Creator with certain unaJienable Rights, that among these
are Life, Liberty and the pursuit of Happiness. -That to secure these rights,
Governments are instituted among Men, deriving their just powers from the
consent of the governed. 1
These truths, however, are not self-evident; nor are these rights universally
recognized for United States ·citizen.s residing in Puerto Rico, the Mariana
Islands, the Virgin Islands, Guam, .arid. American Samoa-the former two
commonwealths, the latter three unincorporated territories of the United States.
During the continental expansio~ jnthe-nineteenth century, the United States
Supreme Court authorized the plenary . powers doctrine, which enabled
Congress to autocratically use the constitutional power conferred upon it to
govern the territories. 2 The Supreme Court developed these norms under the
• Govemor of Puerto Rico 1973-1976, 1985-1992; Attomey General of Puerto Rico 1965-1967;
Professor of Law Catholic University of Puerto Rico 1960-1965, 1994-2006, 2015; Author of numerous books
and articles on Puerto Rico's commonwealth status, including: LA NUEVA TESIS ( 1979), HACIA LA META
FINAL: EL NUEVO PACTO- UN PASO ADELANTE (José Hemández-Mayoral & Pablo J. Hernández Rivera eds..
2011), and EsTADO LIBRE ASOCIADO: NATURALEZA Y DESARROLLO (Pablo J. Hemández Rivera ed., 2014)
1959-2017.
l. The Declaration oflndependence para. 2 (U.S. 1776).
2. See U.S. CoNST. art. rv, § 3, el. 2. Toe express grant ofthis power is found in Article rv. Section 3,
Clause 2 ofthe United States Constitution. Tbe U.$. Supreme Court. bowever, applied nonns from nineteenth-
century intemational law, and recognized that the power to govem territories is inherent to United States
sovereignty. See De Lima v. Bidwell, 182 U.S. 1, 196 (1901) (recognizing right to govern territories inherent
in ability to acquire territories); United States v. Kagama, 118 U.S. 375, 380 (1886) (finding ability to malee
territorial law stems from "exclusive sovereignty"); Am. Ins. Co. v. 356 Bales of Conon, 26 U.S. ( 1 Pet.) 511.
542 ( 1828) (postulating ability to govem territory results from right to acquire territory). These powers stem
from the President's power as Commander in Chief, or from his foreign relations powers, including the power
to execute treaties. See ARNOLD H. LEIBOWITZ, DEFINlNO STATUS: A COMPREHENS!VE ANALYSIS OF UNITED
STATES TERRITORIAL RELATIONS 16 n.45 (1989); see a/so United States v. Curtiss-Wright Exp. Corp.• 299 u.s.
304, 315, 316, 318 ( 1936) (recognizing need to "maintain ... effective control of intemational relations").
Clause of the U.S. Constitution
Rafael Hemández Colón*
l. !NTRODUCTION
On July 4, 1776, Toe Declaration of Independence promulgated the
foundational principies of the United States of America:
We hold these truths to be self-evident, that all menare created equal, that they
are endowed by their Creator with certain unaJienable Rights, that among these
are Life, Liberty and the pursuit of Happiness. -That to secure these rights,
Governments are instituted among Men, deriving their just powers from the
consent of the governed. 1
These truths, however, are not self-evident; nor are these rights universally
recognized for United States ·citizen.s residing in Puerto Rico, the Mariana
Islands, the Virgin Islands, Guam, .arid. American Samoa-the former two
commonwealths, the latter three unincorporated territories of the United States.
During the continental expansio~ jnthe-nineteenth century, the United States
Supreme Court authorized the plenary . powers doctrine, which enabled
Congress to autocratically use the constitutional power conferred upon it to
govern the territories. 2 The Supreme Court developed these norms under the
• Govemor of Puerto Rico 1973-1976, 1985-1992; Attomey General of Puerto Rico 1965-1967;
Professor of Law Catholic University of Puerto Rico 1960-1965, 1994-2006, 2015; Author of numerous books
and articles on Puerto Rico's commonwealth status, including: LA NUEVA TESIS ( 1979), HACIA LA META
FINAL: EL NUEVO PACTO- UN PASO ADELANTE (José Hemández-Mayoral & Pablo J. Hernández Rivera eds..
2011), and EsTADO LIBRE ASOCIADO: NATURALEZA Y DESARROLLO (Pablo J. Hemández Rivera ed., 2014)
1959-2017.
l. The Declaration oflndependence para. 2 (U.S. 1776).
2. See U.S. CoNST. art. rv, § 3, el. 2. Toe express grant ofthis power is found in Article rv. Section 3,
Clause 2 ofthe United States Constitution. Tbe U.$. Supreme Court. bowever, applied nonns from nineteenth-
century intemational law, and recognized that the power to govem territories is inherent to United States
sovereignty. See De Lima v. Bidwell, 182 U.S. 1, 196 (1901) (recognizing right to govern territories inherent
in ability to acquire territories); United States v. Kagama, 118 U.S. 375, 380 (1886) (finding ability to malee
territorial law stems from "exclusive sovereignty"); Am. Ins. Co. v. 356 Bales of Conon, 26 U.S. ( 1 Pet.) 511.
542 ( 1828) (postulating ability to govem territory results from right to acquire territory). These powers stem
from the President's power as Commander in Chief, or from his foreign relations powers, including the power
to execute treaties. See ARNOLD H. LEIBOWITZ, DEFINlNO STATUS: A COMPREHENS!VE ANALYSIS OF UNITED
STATES TERRITORIAL RELATIONS 16 n.45 (1989); see a/so United States v. Curtiss-Wright Exp. Corp.• 299 u.s.
304, 315, 316, 318 ( 1936) (recognizing need to "maintain ... effective control of intemational relations").
