Opinion: DOJ Condemnation of the Insular Cases a Step Toward Self-Determination

Part of what we want to do here is offer our space to opinion pieces that we feel are relevant to our community. The “official” launch of The Latino Newsletter will be on July 15, but we are taking opinion pieces as we ramp up to launch date. The best way to pitch us is to just send it to the following email: [email protected].

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The following piece is written by Dr. Adi G. Martínez-Román, Co-Director and Co-Founder of Right to Democracy, a non-profit that is building a movement to confront and dismantle the undemocratic colonial framework impacting people in U.S. territories. Dr. Adi G. Martínez-Román lives in Río Piedras, Puerto Rico, does not take a position on what political status would be best for any territory, other than to reject the undemocratic status quo.

With the Special Committee on Decolonization continuing its work this week at the United Nations, the topic was rather timely and also covers a news item very few people knew about last month.

Opinion: DOJ Condemnation of the Insular Cases a Step Toward Self-Determination

By Dr. Adi G. Martínez-Román

It is not every day that the U.S. Justice Department says it will no longer rely on binding Supreme Court precedent. But that is what happened last month when DOJ issued a letter stating that “[t]he Department unequivocally condemns the racist rhetoric and reasoning of the Insular Cases,” recognizing that both are “irreconcilable with foundational American principles of equality, justice, and democracy.” 

DOJ’s response came after a bipartisan group of 43 House and Senate members asked it to reject the Insular Cases, a series of racist Supreme Court decisions justifying the undemocratic colonial rule of Puerto Rico and other overseas U.S. territories. This included all five Members of Congress who have Puerto Rican heritage and who are deeply divided on whether Puerto Rico should be independent or the next state. With issues around Puerto Rican political status so prone to divisiveness and toxic politics, how is there such a broad consensus on the need to turn the page on the racist Insular Cases?

The Insular Cases legitimized the colonial governance of Puerto Rico, Guam, and other overseas territories acquired by the United States following the Spanish-American War in 1898. They invented a distinction between so-called “incorporated territories” versus “unincorporated territories.” The Justices at the time, who just a few years earlier established the “separate but equal” doctrine of Plessy v. Ferguson, decided in the Insular Cases that due to our racial and cultural inferiority, people in the new so-called “unincorporated” territories would not enjoy the same constitutional rights nor be entitled to democratic participation in their own governance. Majority white territories would be considered “incorporated,” fully protected by the Constitution and part of the body politic. That legal fiction, a distinction based on racism, is what creates the Insular Cases doctrine, which defined these communities of color as being “property of, but not part of” the United States.

What the doctrine of the Insular Cases maintains is a legal fiction that relegates us to the undemocratic status quo of colonial governance. Overruling the Insular Cases and eliminating their discriminatory doctrine of territorial incorporation will not change the political status of the territories. Nor will it have the automatic effect of “incorporating” us into the U.S. body politic. Rather, the impact of overruling the Insular Cases would be to reject the legitimacy and legal authorization for Congress to perpetually keep the 3.6 million residents of U.S. territories –98% of whom are people of color– under the current undemocratic colonial rule. Overruling the Insular Cases would mean abolishing the concept of “incorporation” altogether, reaffirming the understanding that overseas colonies are incompatible with both the words and spirit of the U.S. Constitution.

It is important to understand that laws and legal doctrines define the framework of the legitimate political actions of groups that hold the administration of power. It is understandable that we hesitate when those who produce such laws and doctrines, including the courts, have become accustomed to using their power to impose their vision on our destinies.

In many ways, the Insular Cases are for people in U.S. territories what Plessy v. Ferguson was for African Americans: both justified a system of discrimination and political subordination of communities of color. Overturning Plessy helped create new political space for the civil and political rights movements of Black people and other minorities in the U.S. Similarly, overturning the Insular Cases could create an important new political space for movements to advance democracy, equity, and self-determination.

The greatest obstacle to resolving the political status of Puerto Rico and other territories is not the lack of calls for change from our community, but the lack of recognition and action by the United States regarding its colonial policies. The normalization of U.S. colonialism needs to be disrupted. The Justice Department’s recognition “that the racist language and logic of the Insular Cases deserve no place in our law” is an important step in the right direction. It is a big deal for the Justice Department to declare as a matter of formal policy that their lawyers will no longer “rely on the racist rhetoric and reasoning of the Insular Cases.”

At Right to Democracy, a nonprofit I helped launch last year, we do not pretend to know what is the “best” political status solution for any territory. That is not our focus or mission. But after spending the last year speaking and engaging with people from all five territories and the diaspora - whose views range from statehood to independence to everything in between - one conclusion is clear: people in the U.S. territories should have a say in the decisions that impact their lives.  

For 125 years, our communities have not just been denied political rights in Washington, but the basic principle of self-determination to determine whether we even want to be part of the United States. The undemocratic status quo simply cannot be reconciled with the democratic principles of the United States or with the principles of international law and human rights. It is time for everyone to enjoy the right to democracy, whatever future status the people of the territories ultimately choose. Turning the page on the Insular Cases is an important step in that direction.

From Our Friends

It’s Juneteenth and our friends at Pulso shared a “Why Latinos Especially Should Celebrate Juneteenth” post. Give Pulso a follow on Instagram. I had the privilege of working with Pulso founder Liz Rebecca Alarcón earlier this year. They are making moves this year and have created one very engaged online community.

What We’re Reading Today

Willie Mays and Puerto Rico: The death of the great Willie Mays Tuesday resonated with millions of baseball fans. The tributes have been countless, and rightly so. I don’t think I know a baseball fan who doesn’t love Mays. I was especially touched by Mays’s connection to Puerto Rico, when he played winter ball back in the day. So I read a lot of tweets and reminisced. Here are just some of my favorites.

All love to my Papito Juan for all his Willie Mays stories from back in the day.

Julio