June 2008, Volume 94, Issue 4|
Citizenship Denied: The Insular Cases and the Fourteenth Amendment
94 Va. L. Rev. 1029 (2008)
Pursuant to the doctrine of territorial incorporation established in the Insular Cases, Puerto Rico is an “unincorporated” territory, and as such, it does not form part of the United States within the meaning of the Constitution. As a result, persons born in Puerto Rico are not “born in the United States” under the Fourteenth Amendment and are not constitutionally entitled to citizenship. Because they enjoy only statutory citizenship, Congress arguably is able to expatriate most Puerto Ricans if the island is declared independent. Moreover, the inferior citizenship status of Puerto Ricans reveals a grave inconsistency in the law of the Fourteenth Amendment that has never been addressed. In response to Dred Scott, the Fourteenth Amendment constitutionalized the common law doctrine of jus soli, which provides that all persons born on U.S. territory and not subject to the jurisdiction of another sovereign are native-born citizens, regardless of race. Pursuant to this interpretation of the Citizenship Clause, persons born in Puerto Rico have been “born in the United States” since the ratification of the Treaty of Paris. By retroactively narrowing the scope of the term “United States,” the Supreme Court took advantage of the unique geographical circumstances of the insular territories and prevented their inhabitants from obtaining equal citizenship. Thus, the doctrine of territorial incorporation reasserts Dred Scott’s race-based approach to citizenship and should be overruled.
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