The majority opinion in United States v. Jose Luis Vaello Madero, released last week, isn’t exciting. In short, Justice Kavanaugh declared that the Fifth Amendment doesn’t require the national government to give equal benefits between residents of the states and those residing in Puerto Rico, including Supplemental Security Income.
The good stuff came from Justice Gorsuch. Though agreeing with the final outcome, Gorsuch found the underlying precedents the Supreme Court assumed in reaching the decision wanting and proceeded to provide a masterclass in understanding the U.S. Constitution’s commitment to equality.
Puerto Rico receives distinctly different treatment than other territories, as well as other states. Gorsuch criticized the judicial opinions that justified this disparate treatment. These cases, from more than a century ago, are known as the Insular Cases. They came in the aftermath of the Spanish-American War. Our victory over Spain resulted in gaining new territories — among them Cuba and Puerto Rico.
To that point, America’s practice involved acquiring territories with the intent of their becoming full and equal states in the Union. This accorded with America’s deepest principles. In particular, it followed rule by consent of the governed among citizens considered fundamentally equal. However, this time, America scuttled its republican principles in favor of another principle: empire. This route had become the norm following European colonial conquests in Asia, Africa, and South America. Now, at the cost of its republican ideals, America sought to join the party. The court aided in this perfidy. It distinguished “incorporated” from “unincorporated” territories to allow the latter to keep from being treated as states-in-waiting. This move, of course, also allowed them to remain territories in perpetuity. Gorsuch attacks the underlying perspective regarding Puerto Rico that justified this move. This perspective took two conceptions to heart.
First, quoting Federalist No. 45, Gorsuch declares, “Empires and duchies in Europe may have subscribed to the ‘doctrine … that the people were made for kings, not kings for the people.'” We treat Puerto Rico as a perpetual second-class island, forever in the political infancy of a territory. Wreaking of empire, this treatment undermines the consent of the governed on which the Constitution grounds its entire theory of just rule. Doing so undermines the concept of equality that makes that rule just.
Second, Gorsuch pinpoints a major assumption justifying this view of the island and its people. He shows how racially charged the rhetoric about Puerto Rico was. This proved especially true of the court of the time. Eschewing Founding principles, the court nakedly spoke of Puerto Ricans as incapable of self-government based on their race and religion. These differences thus made them unequal in a fundamental way to white persons in their morals and intellectual capacities. Dred Scott, the infamous case from 1857, had at least correctly pointed out that territories should become equal states. The Insular Cases built, though slightly more subtly, on the worst of Dred Scott. It grounded its reasoning on Scott’s declaration that other races were stamped with an inherent badge of inferiority. Inequality of territory found its home in inequality of skin color and creed.
To be sure, Gorsuch’s stirring and penetrating concurrence didn’t change the case’s outcome since the litigation focused on such technical matters as monetary benefits from the federal government. However, it touched on much deeper issues. It painted an accurate picture of our republic and the Constitution that guides its actions, describing the country’s legal commitment to the consent of the governed and to equality under the law, regardless of race or geography.
Adam M. Carrington is an associate professor of politics at Hillsdale College.
