By Scott Meyer
According to a 2017 poll, nearly half of Americans were unaware Puerto Ricans were U.S. citizens. This discrepancy seems to bely the fact that U.S. territories, of which Puerto Rico is the largest, constitute over three and a half million U.S. citizens, have some of the highest military enlistments per capita, and even pay some federal taxes. However, despite over a century of combined history as U.S. territories, their citizens still lack one of the foundations of American democracy: the right to vote in presidential elections.
The reasoning for territories’ disparate treatment comes from Supreme Court rulings from the early nineteen-hundreds, which became known as the Insular Cases. As Justice Kennedy succinctly explained in Boumediene v. Bush: “[i]n a series of opinions later known as the Insular Cases, the Court addressed whether the Constitution, by its own force, applies in any territory that is not a State.” The Court then noted the delicate balance between imputing constitutional rights to territories versus respecting their existing laws, a tension which could result in confusion and instability. To this end, the Insular Cases Court came up with “…the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories.”