ISSN 1062-7421
Vol. 11 No. 12 (December 2001) pp. 570-574.

by Christina Duffy Burnett and Burke Marshall (Editors). Durham, N C: Duke University Press, 2001. 464 pp. Cloth $69.95. ISBN: 0-8223-2689-2. Paper $23.95. ISBN: 0-8223-2698-1.

Reviewed by Wendy L. Martinek, Department of Political Science, Binghamton University.

Although most American are vaguely aware of the fact that the United States has territorial possessions, it usually comes as a surprise when they learn that these territorial possessions include more than Guam and Puerto Rico. The community of United States territories also includes American Samoa, the Northern Mariana Islands, and the U. S. Virgin Islands. Each of these territories has a unique relationship with the United States, borne of their individual histories and the pathways by which they became associated with the United States. However, they share several important features, not the least of which is their status as unincorporated territories, a term that derives from Supreme Court Justice Edward Douglass White's concurring opinion in DOWNES v. BIDWELL (1901). To be an unincorporated territory is to belong to but remain separate from the United States. Those living in the territories are American citizens (American nationals in the case of American Samoa), but they do not have the right to vote in federal elections. This status means that the territories are neither sovereign nations nor American
states and has induced varying degrees of dissatisfaction both in the territories themselves and in the United States.

It is with this dissatisfaction in mind that Christina Duffy Burnett and Burke Marshall brought the essays comprising FOREIGN IN A DOMESTIC SENSE together, with an eye toward enticing "American legal scholars back to the unresolved problem of territorial status in the United States, reminding them (and asking them to remind others) that the 'question of the hour' is now the question of a century, and none the less urgent for it" (p. xiii). The project had its genesis in a Yale Law School-sponsored conference marking the hundred-year anniversary of the Spanish American War and participants from that conference author the majority of the volume's essays. The assembled authors are a prestigious group that includes law professors (both from the states and the territories), political scientists, and judges (former and current, both federal and territorial). The authors have brought to bear a rich set of experiences and perspectives and, collectively, make an important
contribution to understanding both the contemporary and historical context of the debate over territorial status.

As the most populous of the American territories, Puerto Rico serves as the focal point for many of the essays in this volume, but the observations made about and the lessons drawn from the Puerto Rican case have relevance beyond that particular territory. Burnett and Marshall group the 16 essays (p. 17, if Burnett's short note on the

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Insular Cases is included) around four central themes: history and expansion, expansion and Constitution, Constitution and membership, membership and recognition. The essays included under History and Expansion focus on the historical backdrop against which territorial expansion occurred. Those included under Expansion and Constitution address questions of constitutional jurisprudence while those essays collected under Constitution and Membership address themselves to principles of citizenship. Finally, the essays comprising Membership and Recognition center on the meaning of citizenship (or, more generally, membership in the body politic) in the Puerto Rican case.

Burnett and Marshall introduce the collection with an informative essay that surveys the relevant historical events, providing the background necessary to an informed understanding of the debates over territorial status. As Burnett and Marshall note, the Spanish-American War, starting with the February 1998 explosion of the U. S. S. Maine and ending with the December 1998 Treaty of Paris, was a short-lived event with dramatic repercussions. By the terms of the treaty ending the war, Spain ceded Cuba, Guam, Puerto Rico and the Philippines. The United States then found itself in the novel (for Americans) position of becoming a colonial power in the tradition of Britain, France, and Spain. This was by no means a development without controversy. In fact, as Burnett and Marshall characterize it, the
presidential election of 1900 was, in part, a reflection of divisions in the United States over the appropriate relationship between America and its territories. William Jennings Bryant represented the position that the Constitution follows the flag; i.e., territorial possessions should be governed under the same constitutional principles as the American states. William McKinley, on the other hand, disavowed that notion, instead arguing that the Constitution need not NECESSARILY follow the flag. It is this latter position that ultimately prevailed.

It was a position that ultimately received the imprimatur of the United States Supreme Court in a set of cases known as the Insular Cases. This set of cases consists of 23 opinions of the Supreme Court rendered between 1901 and 1922. Two cases, DELIMA v. BIDWELL (1901) and DOWNES v. BIDWELL (1901), set the initial parameters. Both cases involved the imposition of duties on goods imported into the continental United States from Puerto Rico. In DELIMA, at issue were duties on sugar imports under the Dingley Act, which imposed duties on good from foreign countries. At root the Court was asked to determine whether or not Puerto Rico constituted a foreign nation, a question it answered in the negative. However, the Court also declined to identify Puerto Rico as part and parcel of the United States in the same sense as any American state was in the DOWNES case. At issue was the application of the Uniformity Clause of the Constitution to Puerto Rico and, by extension, other American territories. Although a majority of the Court viewed Puerto Rico as different from the American states, and, hence, not subject to the Uniformity Clause, the Court split as to the rationale. Justice Henry Billings Brown articulated a theory of extension by which Congress is the sole proprietor of the discretion to extent the Constitution to any American territories, something it has not done. Brown further distinguished between natural rights (which would apply everywhere merely by virtue of their essential nature) and artificial rights (which would only apply in the United States proper). Justice Edward D. White concurred

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with the proposition that the Uniformity Clause did not apply to Puerto Rico. But, whereas Brown suggested that no territories were part of the United States, White asserted that some are but other are not-and Puerto Rico was, according to White, among the latter category.

Burnett and Marshall go on to discuss the basics of the Puerto Rican case, focusing on the 1952 transition to the current commonwealth status and the subsequent plebiscites (1967, 1993, 1998). A comparison of the results between the 1967 and the 1993 plebiscites reveals little change in the lack of support for the independence option. However, the levels of support for continued commonwealth status (of some variety) and statehood shifted from a majority support for commonwealth status to a situation in which support for commonwealth status and statehood are virtually indistinguishable. As several of the contributors note later in this edited volume, the most problematic aspect of interpreting these results is in ascertaining what exactly these options mean and how they have been interpreted by those participating in the process. Most broadly, Puerto Rico's commonwealth status has meant that the local Puerto Rican government has been sovereign in
situations in which constitutional issues are not raised. The more specific nature of the relationship between Puerto Rico and the United States remains unclear. According to one perspective, known as the compact theory, commonwealth status is a compact between Puerto Rio and the United States, a compact that is mutually binding and limits previously absolute American authority over the island. The alternative perspective asserts that Congress could not have surrendered such sovereignty even if it wanted to in the absence of statehood or independence. The tension between these two perspectives is obvious and it is only with the resolution of this tension that Puerto Rico's status can definitively be settled.

Court of Appeals judge Jose A. Cabranes opens the section on History and Expansion with an exposition of the historical context of the relationship between Puerto Rico and the United States. Cabranes is particularly interested in the language we use in discourse concerning territorial status. As he notes, the term "colonialism" undoubtedly carries considerable baggage with it. But, as Cabranes further notes, "Speaking plainly and honestly about our history requires us to acknowledge, without rancor and without embarrassment, that COLONIALISM is a simple and perfectly useful word to describe a relationship between a powerful metropolitan state and a poor overseas dependency that does not participate meaningfully in the formal lawmaking processes that shape the daily lives of its people" (pp. 40-
41). Mark S. Weiner is also interested in the importance of definition and meaning. Weiner makes the forceful argument that our concepts of race and law are endogenously defined. In other words, the rhetoric associated with legal justification for territorial expansion is inextricably linked with prevalent concepts of race and vice versa. The contribution of Brook Thomas focuses on the Spanish-American War as a manifestation of what he sees as the transition in the way Americans saw the nation held together, from a compact model to a corporate model. Efr,n Rivera Ramos rounds out the selections in History and Expansion, exploring in detail the development of the "incorporated vs. unincorporated territories" framework and concluding that it is an unworkable framework: The United States "should not continue applying categories born of another

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age in a world whose moral ambiance is decidedly contrary to the idea of the legitimacy of colonialism, no matter in what terms it is cast.

The contributions in the next section, Expansion and Constitution, represent a bit of an eclectic mix. Sanford Levinson's essay, which opens the section, will likely be of particular interest to those teaching constitutional law courses. Levinson persuasively argues for the inclusion of the Insular Cases in the canon of constitutional law. Regardless of the criteria by which inclusion in this canon is determined (e.g., helpful for the preparation of future legal professionals, propagation of cultural literacy), the Insular Cases represent an important body of law that merits critical attention. The contributions of Juan F. Perera and E. Robert
Statham, Jr. can be seen as providing corroborative evidence for Levinson's position. Perera situates the Insular Cases in their historical context. Statham differentiates between the status of territories acquired via the Spanish-American War and previously acquired territories on the basis of the rationales for those acquisition: acquisition for increased power versus acquisition for mere growth. Gerald L. Neuman concludes this section with an examination of the development of territorial jurisprudence. Neuman identified four phases of this development: 1789-early 1800s, middle to late 1800s, early to mid 1900s, and 1950s to the present. From an initial phase of uncertain and often conflicting positions, the United States transitioned into a mindset in which constitutional limits were assumed to apply to
territories as well as states. This perspective was uprooted with the Insular Cases and replaced with the incorporated versus unincorporated framework. The postwar phase has seen an increasing recognition of the possibility that constitutional limits may well apply outside of the fifty states.

The chapters comprising Constitution and Membership are a particularly well-integrated set of essays. Mark Tushnet sets the stage by laying out the normative concerns inherent in any system in which the content of political membership varies among members; i.e., in which some individuals enjoy full membership while other enjoy only partial membership. Tushnet's exploration of the relevant issues leads him to conclude, "Partial membership is in tension with liberal political theory. It seems impossible to defend when it is forced on individuals who would prefer to be full members .... It is difficult to justify even when a group chooses collective partial membership, except to the extent that the costs of alternative courses have not yet been reduced to the point where full membership or independence are realistic possibilities" (p. 220). Juan R. Torruella and Jos, Tr­as Monge follow up on Tushnet's philosophical discourse, the former specifying the constitutional
limits on status options for Puerto Rico and the latter subjecting those limits to exacting scrutiny. Roberto P. Aponte Toro concludes the section by investigating the relevance of alternatives to the traditional American federalism. Rather than seeing the search for a new model to replace historical notions of American federalism as an onerous chore, Aponte Toro sees it as an opportunity. "It is my argument that a search for a solution to the status problem offers the United States and opportunity to innovate.... [T]he United States may seek to produce a new form of federalism-one in which a sovereignty formula different from that of the
federated states may be put into practice as a frontier for innovation and responsible experimentation" (pp. 251-52).

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The final section, Membership and Recognition, focuses most explicitly on the Puerto Rican case. Jose Julian Alvarez Gonzalez examines the issue of language, a topic he believes receives scant attention in the debate over Puerto Rico's status. Alvarez Gonzalez undertakes a searching investigation of the import of language for the status alternatives available, making explicit the underlying connection between language and culture. Angel Ricardo Oquendo, in his thoughtful essay, argues that any status alternatives must be understood in the context of two principles. First, Puerto Ricans overwhelmingly want to maintain some sort of permanent relationship with the United States. Second, Puerto Ricans overwhelmingly want recognition of their culture in that permanent relationship. The essays by Richard Thornburgh and Rogers M. Smith take different approaches to the legal dimensions of the debate over Puerto Rico's status. Thornburgh articulates specific constitutional requirements. Smith questions the reliance on the Foraker Act's denial of American citizenship to Puerto Ricans as the source of a distinct Puerto Rican citizenship. In each case, the question is one of the consequences of historical legal events.

Considering the essays collectively, there is no question that they make an important contribution both to the on-going debate over territorial status and our understanding of the Constitution and its relationship to American territories. However, as with many edited volumes, FOREIGN IN A DOMESTIC SENSE suffers from uneven cohesiveness among the selections. The selections included in Expansion and Constitution are an example. Short introductory essays for each section would have been particularly helpful, as would a concluding chapter bringing the disparate threads together at the end. Nonetheless, the range of issues explored is particularly noteworthy, and the forthright and accessible language of virtually all of the contributors makes it is a volume well worth reading, for scholars and the
lay public alike.


DELIMA v. BIDWELL (181 U.S. 1)

DOWNES v. BIDWELL, 182 U.S. 244 (1901).


Copyright 2001 by the author, Wendy L. Martinek.