Comment by Ignacio R. Baerga Saldaña
When the Thirteen Colonies declared their independence from the British government, they did so in revolt against a crown that taxed its colonial subjects and issued decrees in their lands—unchecked by any meaningful participation on the part of the colonies' inhabitants. The Founding Fathers viewed this kind of political arrangement as impermissibly tyrannical and incompatible with the liberal values their people had come to embrace. Against this backdrop, they established a new government designed to forbid the kind of unchecked control they experienced at the hand of the British Crown, and founded upon the principle that a government derives its legitimacy “from the consent of the governed.” Less than two centuries later, in an ironic twist of fate, the U.S. government acquired Puerto Rico as a territory and came to replicate many aspects of its former colonial relationship--this time, however, assuming the role of the British Crown.
Puerto Rico is an “unincorporated territory” of the United States and home to over three million American citizens. As such, the United States has broad powers and influence over the island's politics, economy, and the daily lives of its inhabitants. Puerto Rico is subject to federal laws, executive orders, and judgments of the federal courts. The United States also dictates the island's trade policy. Federal regulators supervise and have veto power over its fiscal policy. Its residents are eligible for military service and conscription, and they pay most federal taxes. Notwithstanding the above, residents of Puerto Rico cannot vote for the president of the United States or elect voting representatives in Congress. Thus, unlike their fellow citizens residing in the fifty states, Puerto Ricans have little say over the composition of the federal bodies that ultimately rule over them--federal bodies whose powers, significantly, are broader and less restricted with respect to Puerto Rico than they are over the states.
This Comment seeks to develop a constitutional theory under which an American citizen residing in Puerto Rico could sue the United States to achieve federal representation. It reviews the legal and political histories leading to the second-class citizenship Puerto Ricans experience in the modern day. In doing so, this Comment seeks to identify (1) the specific acts of the federal government that created the current voting rights landscape on the island and (2) the constitutional jurisprudence that has sustained such a fundamentally undemocratic political arrangement. After providing this background, this Comment proposes a constitutional argument: The actions of Congress that created and permanentized Puerto Rico's current territorial status operate as a permanent ban on the ability of millions of American citizens to vote in federal elections. Those government acts thus run afoul of the Constitution's Equal Protection guarantee by denying access to federal political processes to a class of American citizens (i.e., residents of Puerto Rico) that are available to other similarly situated American citizens (i.e., residents of the fifty states). This Comment explains that Puerto Ricans' incapacity to vote for the president or representatives in Congress gives rise to unequal access to fundamental rights to which they are constitutionally entitled--namely, the right to vote and the First Amendment rights of political expression and association. Furthermore, this Comment explains that Congress lacks a sufficiently compelling overriding interest to justify the denial of such fundamental rights. Accordingly, this Comment maintains that the aforementioned acts of Congress are unconstitutional, insofar as they prevent U.S. citizens residing in Puerto Rico from participating in federal elections on the same footing as their fellow citizens residing in the several states.
Part II of this Comment provides a brief overview of the legal and political histories leading to Puerto Rico's current relationship with the United States. Part III explains, in constitutional terms, how and why the relationship that has taken shape operates as a categorical exclusion of the citizen residents of Puerto Rico from the federal electoral processes. Part IV develops a constitutional argument explaining that the current vote denial of Puerto Ricans is unconstitutional under the Equal Protection component of the Fifth Amendment. Part V addresses contrary legal precedents, explaining that the reasoning employed by courts, which have held that the Puerto Rican vote denial issue is not justiciable, is not compatible with the constitutional theory proposed in Part IV of this Comment. Part VI concludes, urging federal courts in the future to accept a role in remedying what they should rightfully recognize as an archaic yet ongoing violation of civil rights.
About the Author
Ignacio R. Baerga Saldaña, J.D. Candidate Tulane University Law School 2026.
Citation
100 Tul. L. Rev. 605