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Abstract
Many forms of differentiated citizenship have been implemented by states in different regions and epochs. This article presents a novel category: “asymmetric territorial citizenship,” which is a type of differentiation that within the same state establishes categories of citizenship, some of which are fragmentary or inferior, and thus essentially creating horizontal categories of territorialized state membership, or territorialized citizenship regimes. The existence of asymmetry within the same state shatters the commonplace expectation that citizenship is unitary, equal, and homogenous. Empirically, asymmetric citizenship originates in the practices and policies of imperial powers in some of their territories and in the relations of domination and control of colonialism. But, asymmetric citizenship also exists today in the U.S unincorporated territories (and, in particular, in Puerto Rico). I examine the creation of this novel category by the Insular Cases and its progeny, and relate it to the fundamental elements of citizenship.
Disclosure Statement
No potential conflict of interest was reported by the author(s).
Notes
1 Mark Lemley, “The Imperial Supreme Court,” Harvard Law Review 136, no. 96 (2022): 99–118.
2 Linda Greenhouse, “Do we have the Supreme Court we deserve?” New York Times, December 30, 2021.
3 Rogers M. Smith, “The Insular Cases, Differentiated Citizenship and Territorial Statuses in the 21st Century” in Reconsidering the Insular Cases: The Past and Future of the American Empire, eds. Gerald L. Neuman and Tomiko Brown-Nagin (Cambridge, MA: Harvard Law School Human Rights Program Series, 2015).
4 Willem Maas, ed. Multilevel Citizenship (Philadelphia, PA: University of Pennsylvania Press, 2013).
5 Ailsa Henderson, Charlie Jeffery, and Daniel Wincott, eds. Citizenship after the Nation State: Regionalism, Nationalism and Public Attitudes in Europe (Houndmills: Palgrave Macmillan, 2014), 32.
6 Multilevel citizenship is a form of vertical differentiated citizenship, while asymmetric territorial citizenship is about horizontal, territorialized civic differentiation. Moreover, multilevel citizenship is a form of civic differentiation that is essentially based on accommodationist rationales, whereas asymmetric territorial citizenship endures in some states or sub-state regions as a form of civic differentiation on the basis of legacy or preservationist rationales. Smith, Insular Cases, 103.
7 I draw inspiration for this original term from the work of scholars on comparative federalism. Especially in multinational federations such as Canada or Belgium, one can find constitutional asymmetry: certain constituent units of the federation (such as Québec or Flanders) are units “with relationships to the federation substantially different from that of the full-fledged units of regional government” Ronald Watts, Comparing Federal Systems, 3rd ed. (Montréal: McGill-Queen's University Press, 2008), 127. See also Francesco Palermo and Karl Kössler, Comparative Federalism: Constitutional Arrangements and Case Law (Oxford and Portland, Oregon: Hart Publishing, 2017), 47. Using this new term is also useful because it draws intellectual linkages between territorial politics, comparative federalism, and citizenship studies.
8 Multilevel citizenship can be observed in practice by referring to regional-scale public attitudes (Henderson, Jeffery, and Wincott, Citizenship after the Nation State, 32).
9 Christian Joppke, Citizenship and Immigration (Cambridge: Polity Press, 2010), 3.
10 Juan Linz and Alfred Stepan, Crafting State-Nations: India and other Multinational Democracies (Baltimore, MD: Johns Hopkins University Press), 2.
11 Citizenship is both a political and a legal category. “In order to exist, every nation-state needs a population and a territory,” and citizenship is the tool used by states to that end. Patrick Weil, How to be French: Nationality in the Making since 1789 (Durham, NC: Duke University Press, 2008), 2. Citizenship is thus established as a matter of politics and policy, but it is implemented as a matter of law through concrete statutes and regulations.
12 Richard Bellamy and Madeleine Kennedy-McFoy, eds. Citizenship: Critical Concepts in Political Science, Volume 1 (London; New York, NY: Routledge, 2014), 3. See also Marc Morjé Howard, The Politics of Citizenship in Europe (Cambridge: Cambridge University Press, 2009), 4; and Andreas Fahrmeir, Citizenship: The Rise and Fall of a Modern Concept (New Haven, CT: Yale University Press, 2007).
13 Joppke, Citizenship, 28.
14 Bellamy, Citizenship, 2.
15 T. H. Marshall, Citizenship and Social Class (Concord, MA: Pluto Press, [1950] 1992), 6.
16 Joppke, Citizenship, 12.
17 Bellamy, Citizenship, 2
18 Joppke, Citizenship, 111.
19 Rogers Brubaker, Citizenship and Nationhood in France and Germany (Cambridge: Harvard University Press, 1992), 1.
20 Readers interested in how asymmetric territorial citizenship has been implemented in the history of the British, French, Spanish, and US empires are invited to read a separate forthcoming article of mine that I expect will appear in 2024.
21 Todd Shepard, The Invention of Deconolonization: The Algerian War and the Remaking of France (Ithaca, NY: Cornell University Press, 2006); Weil, How to be French; Ian Lustick, Unsettled States, Disputed Lands (Ithaca, NY: Cornell University Press, 1993).
22 Randall Hansen, Citizenship and Immigration in Post-War Britain (Oxford: Oxford University Press, 2000). For example, see the British Commonwealth Immigrants Act of 1962 (Ibid., 123).
23 Eda Milagros Burgos Malavé, Génesis y Práxis de la Carta Autonómica de 1897 en Puerto Rico (San Juan, PR: Instituto de Cultura Puertorriqueña, 1997); José Trías Monge, Historia Constitucional de Puerto Rico, Vol. 1 (San Juan, PR: Editorial UPR, 1980).
24 As Rome expanded, the version of Roman citizenship offered to conquered populations “was of a legal rather than a political kind—‘civitas sine suffragio’ or ‘citizenship without the vote.’” Bellamy, 7.
25 Karen Barkey, Empire of Difference: The Ottomans in Comparative Perspective (Cambridge: Cambridge University Press: 2008); Jane Burbank and Frederick Cooper, Empires in World History: Power and the Politics of Difference (Princeton, NJ: Princeton University Press, 2010).
26 The United States is of course a liberal democracy, even if it is currently facing a serious constitutional and political crisis caused by growing illiberalism and resistance to the norm of majority rule in the right wing of the US political spectrum. But, it is also a superpower with a clear past as an empire. There is also a serious scholarly debate as to whether the USA today is still an empire, which is beyond the scope of this article. I would argue that the US is currently a liberal democracy, but in the treatment of its territories—all of which are a legacy of its most imperial period—the United States maintains a colonial animus. The universe of cases that are today liberal democracies, but which possess territories where they have established a form of asymmetric territorial citizenship is very small. Perhaps Israel with respect to Arab Israelis in some of its occupied territories, or the United Kingdom with some of its insular possessions. Also, perhaps French Polynesia or French New Caledonia, which are French overseas collectivities, but French citizens there do participate in the French political system. But note that after 1998 New Caledonia achieved a sui generis status, and “a New Caledonian citizenship was established in parallel with French citizenship…” Mathilde Cohen, “Judicial Colonialism Today: The French Overseas Courts,” Journal of Law and Courts 8, no. 2 (Fall 2020): 247–76.
27 Smith, Insular Cases.
28 Efrén Rivera Ramos, The Legal Construction of Identity: The Judicial and Social Legacy of American Colonialism in Puerto Rico (Washington, DC: American Psychological Association, 2001).
29 Christina Duffy Burnett and Burke Marshall, eds. Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (Durham, NC: Duke University Press, 2000). Puerto Ricans are circulators: there is a heavy bidirectional flow of people between the US continent and the Island. Estimates of the extent of circulation vary widely, but what is clear is that more and more Puerto Ricans are remapping the borders of their identity by moving frequently between the Caribbean and North America. Jorge Duany, The Puerto Rican Nation on the Move: Identities on the Island and in the United States (Chapel Hill, NC: University of North Carolina Press, 2022), 33.
30 The Insular Cases are 23 decisions of the US Supreme Court decided between 1901 and 1922.
31 Efrén Rivera Ramos, “The Insular Cases: What is there to Reconsider?,” in Reconsidering the Insular Cases: The Past and Future of the American Empire, eds. Gerald L. Neuman and Tomiko Brown-Nagin (Cambridge, MA: Harvard Law School Human Rights Program Series, 2015), 31.
32 Ibid., 32.
33 Ibid.; Raúl Serrano Geyls, “The Territorial Status of Puerto Rico and Its Effect on the Political Future of the Island,” Revista Jurídica de la Universidad Interamericana 39, no. 13 (2004).
34 Carlos I. Gorrín Peralta, “Puerto Rico and the United States at the Crossroads,” in Reconsidering the Insular Cases: The Past and Future of the American Empire, eds. Gerald L. Neuman and Tomiko Brown-Nagin (Cambridge, MA: Harvard Law School Human Rights Program Series, 2015), 188.
35 Rivera Ramos, “The Insular Cases,” 35.
36 Rafael Cox Alomar, “The Ideological Decolonization of Puerto Rico’s Autonomist Movement,” in Reconsidering the Insular Cases: The Past and Future of the American Empire, eds. Gerald L. Neuman and Tomiko Brown-Nagin (Cambridge, MA: Harvard Law School Human Rights Program Series, 2015), 154, 164.
37 The colonial nature of the ELA is illustrated by one of the legal conclusions reached by the 2005 Report by the President’s Task Force on Puerto Rico’s Status, which stated that the federal government could, among other options, relinquish sovereignty over Puerto Rico by ceding the territory to another nation-state. President’s Task Force, Report by the President’s Task Force on Puerto Rico’s Status (Washington, DC: White House, 2005), 6.
38 Downes v. Bidwell, 182 US 244, 380 (1901) (Harlan, J. dissenting).
39 Gorrín, Puerto Rico, 207. All the plebiscites in Puerto Rico are open to those citizens that are bona fide residents of the island.
40 Importantly, the Obama Administration, through its Solicitor General Donald Verrilli, filed an amicus brief in this case in December 2015 that supported the positions taken in the majority opinion in Sánchez Valle.
41 In one survey, 63% of respondents did not approve of the Fiscal Control Board. Only 13% had a favorable opinion. El Nuevo Día, November 9, 2019, 12.
42 Liesbet Hooghe, Gary Marks, and Arjan Schakel, The Rise of Regional Authority (London; New York, NY: Routledge, 2010), 8.
43 US v Vaello Madero, 142 S. Ct. at 1552 (2022) (Gorsuch, J., concurring). See also Jaime Lluch, “Córcega, Puerto Rico y Vaello Madero,” El Nuevo Día, May 6, 2022.
44 Vaello Madero, 142 S. Ct. at 1557 (Sotomayor, J., dissenting).
45 Fitisemanu v. United States, 1 F.4th 862 (10th Cir. 2021).
46 The phrase “citizens or residents of Puerto Rico” includes for purposes of the juridical analysis here all those born there and those who were born or naturalized in a state of the Union and reside there. Dick Thornburgh, “Puerto Rican Separatism and United States Federalism,” in Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution, eds. Christina Duffy Burnett and Burke Marshall (Durham, NC: Duke University Press, 2001), 366.
47 Rabang v. Immigration and Naturalization Serv., 35 F.3d 1449 (9th Cir. 1994). See also Tuaua v. United States, 788 F.3d 300, 310 (D.C. Cir. 2015) (declining to forcibly impose birthright citizenship over the opposition of American Samoa’s majoritarian will reflected in its democratically-elected government because it could be ‘impractical and anomalous at a fundamental level’”).
48 Thornburgh, Separatism, 366, 368.
49 Smith, Insular Cases, 128. See Eric Lutz, “Trump’s Vendetta Against Puerto Rico is Still Going Strong,” Vanity Fair, December 18, 2019. The 1940 Nationality Act been interpreted by some as indicating that Congress wishes the 14th Amendment’s birthright citizenship to apply to Puerto Rico. The major constitutional law scholars in Puerto Rico reject this view (Personal communication, Prof. José Julián Álvarez, University of Puerto Rico Law School, April 22, 2021) (Personal communication, Prof. Carlos Ramos González, Interamerican University Law School, April 22, 2021). In addition “…the Supreme Court has regularly held that Congress can protect 14th Amendment rights but it cannot define them. So even if Congress says Puerto Ricans have 14th Amendment birthright citizenship rights (which Congress did not do clearly), that declaration would still not prove that they do have them. The courts would have to affirm it. In any case, since the 1940 law was an act of Congress, a later Congress could rescind it. Congress can rescind all its prior laws. Because that vulnerability exists, it’s even more clear that Puerto Ricans don’t have 14th Amendment birthright citizenship rights: no act of Congress can alter those. And no act of Congress can provide those.” (Personal communication, Prof. Rogers M. Smith, June 28, 2017).
50 Brubaker, 21.
51 Ibid.
52 Ibid., 23.
53 Juan Torruella, “The Insular Cases: A Declaration of their Bankruptcy and my Harvard Pronouncement,” in Reconsidering the Insular Cases: The Past and Future of the American Empire, eds. Gerald L. Neuman and Tomiko Brown-Nagin (Cambridge, MA: Harvard Law School Human Rights Program Series, 2015), 74.
54 Richard Bellamy, Citizenship: A Very Short Introduction (Oxford: Oxford University Press), 4.
55 The federal government maintains that island residents are not entitled to SSI payments because they do not pay the federal income taxes that fund the program. SSI benefits are available to low-income disabled adults and children. Although the Social Security Administration manages these benefits, funding comes from the US Treasury’s general funds and not Social Security payroll taxes. However, a recent decision by Judge Torruella stands for the novel proposition that Puerto Ricans are eligible for Federal Supplemental Security Income (SSI) benefits under the US Constitution, and which is now to be decided by the US Supreme Court. US v. Vaello-Madero, 956 F. 3d 12 (1st Cir. 2020), but this was reversed by the Supreme Court.
56 Pedro Pierluisi, “Statehood is the Only Alternative for What Ails Puerto Rico,” New York Times, July 10, 2015.
57 Ibid.
58 Ibid.
59 Trías Monge, Puerto Rico, 162.
60 Brubaker, 28.
61 John McGarry and Brendan O’Leary, “Federation and Managing Nations,” in Multinational Federations, eds. Michael Burgess and John Pinder (New York, NY: Routledge, 2007), 182.
62 Linz and Stepan, Crafting State-Nations, 4.
63 Ibid.
64 Michael Billig, Banal Nationalism (London: Sage, 1995), 8.
65 Brubaker, 28.
66 Rivera Ramos, The Legal Construction.
67 Research on identities in Puerto Rico shows that the principal political identities of the representatives of the main political currents in Puerto Rico revolve around their sense of nationhood and questions of national identity. Jaime Lluch, “Unpacking Political Identity: Race, Ethnicity, and Nationhood in a Federal Political System, Ethnopolitics 18, no. 2 (2019): 178–200. Puerto Rico can and should be viewed through a different prism, and in the recent major international conference I organized in San Juan on October 21, 2022 entitled “Puerto Rico’s Status Conundrum in Comparative Perspective,” see https://grupocne.org/prcc/, I presented the rationale for viewing Puerto Rico through a new paradigm, that of a stateless nation or a sub-state demos, within a federal political system, similar to multinational democracies in other contexts worldwide.
68 Desmond King and Rogers M. Smith, Still a House Divided: Race and Politics in Obama's America (Princeton, NJ: Princeton University Press, 2011), 9.
69 Richard Gunther, American Constitutional Law, 11th ed. (New York, NY: Foundation Press, 1985), 630.
70 Michael Keating, The New Regionalism in Western Europe: Territorial Restructuring and Political Change (Cheltenham: Edward Elgar, 1998).
71 Also, in several countries of the British Commonwealth, whose inhabitants after 1962 became part of a “large category of second-class United Kingdom and colonies’ citizens…” Hansen, 13.
72 The strongest and most consistent voice in the federal judiciary against the persistence of the asymmetric territorial citizenship in Puerto Rico and the imperialist animus of the Insular Cases was the voice of the late First Circuit Judge Juan Torruella, in and out of his role as a federal judge. Justice Sonia Sotomayor has in some of her Supreme Court jurisprudence denounced the injustice of the Insular Cases, but there is no indication she is a strong, vocal, and unflinching advocate of the decolonization of Puerto Rico, as Judge Torruella was. See, e.g., Prof. Efrén Rivera Ramos, Sonia Sotomayor, el Tribunal Supremo, y el Status de Puerto Rico, La Voz del Centro, July 11, 2021. http://www.vozdelcentro.org/2021/07/11/898-sonia-sotomayor-el-tribunal-supremo-y-el-status-de-puerto-rico/ (accessed July 13, 2021).
73 Pedro Reina Pérez, “Trump’s Malign Neglect of Puerto Rico,” The Atlantic, January 16, 2020.
74 Jaime Lluch, “Trumpist Ethnonationalism and the Federal Response to the Covid-19 Crisis and Other Natural Disasters in Puerto Rico (2017–21),” Nationalism and Ethnic Politics 27, no. 3 (2021): 331–49, 332. Since the capture of the Republican party by Trumpism, “a political momentum seems to be building to sustain a nativist, white-majority nation reaction that would revive ancestral racial and ethnic concepts of US national identity. This, of course, is the sort of national divide that is not a favorable development for the accommodation and the fair treatment of Puerto Rico within the US.” Ibid., 336.
75 In addition to other longstanding challenges that Puerto Rico has faced. See Jaime Lluch, “Varieties of Territorial Pluralism: Prospects for the Constitutional and Political Accommodation of Puerto Rico in the USA” in Constitutionalism and the Politics of Accommodation in Multinational Democracies, ed. Jaime Lluch (Houndmills: Palgrave Macmillan UK, 2014), 21–45.
76 Lluch, Trumpist.
77 Ibid.
78 See Azi Paybarah, “House passes bill calling for binding vote on statehood for Puerto Rico,” Washington Post, December 15, 2022. See also Jaime Lluch, “Sociología Política del Proyecto de Status 8393,” El Nuevo Día, December 30, 2022; Jaime Lluch, “Multinacionalidad y el proyecto de status de Puerto Rico,” El Nuevo Día, June 30, 2022; and Jaime Lluch, “Trumpismo y el proyecto de status,” El Nuevo Día, June 6, 2022.
79 John McGarry, Brendan O’Leary, and Richard Simeon, “Integration or Accommodation? The enduring debate in conflict regulation,” in Constitutional Design for Divided Societies: Integration or Accommodation? ed. Sujit Choudhry (Oxford: Oxford University Press, 2008), 67.
80 Ibid, 51.
81 Rogers M. Smith, “Beyond de Tocqueville, Myrdal, and Hartz: The Multiple Traditions in America,” American Political Science Review 87, no. 3 (1993): 548–63, 549.
82 Ibid., 560.
83 Andreas Wimmer, Nationalist Exclusion and Ethnic Conflict: Shadows of Modernity (Cambridge: Cambridge University Press 2002), 58.