Borinquén, USA.

Puerto Rico's Undemocratic
Federal Territory.

In 1917, the United States Congress passed the Jones–Shafroth Act, extending American citizenship to the residents of Puerto Rico. On its surface, the gesture appeared to be one of inclusion, a step toward binding the island more closely to the nation that had claimed it after the Spanish–American War of 1898. Yet the timing of the act reveals a more transactional motive. Passed roughly a month before the United States entered the First World War, the law conveniently rendered Puerto Rican men eligible for conscription. Citizenship, then, arrived bundled with obligation, but not with the fundamental right that citizenship is supposed to guarantee in a democracy: representation. More than a century later, Puerto Ricans remain American citizens who cannot vote for president and have no voting members in Congress that write the laws governing their lives. This is not an oversight. It is the product of a deliberate legal architecture, built by the Supreme Court itself, that continues to function exactly as designed.

The Insular Cases' Architecture

The foundation of this architecture is a set of rulings known as the Insular Cases, decided by the Supreme Court between 1901 and 1922. In Downes v. Bidwell (1901), the Court invented an entirely new constitutional category: the “unincorporated territory,” a possession that belongs to the United States without being fully part of it. Justice Henry Billings Brown, the same justice who had authored the majority opinion upholding racial segregation in Plessy v. Ferguson, wrote that the newly acquired territories were inhabited by “alien races” for whom government “according to Anglo-Saxon principles may for a time be impossible.” The territories were, in the Court’s own chilling phrase, “foreign to the United States in a domestic sense.” This was not incidental language. It was the explicit rationale for withholding full constitutional protection from millions of people the United States had just claimed as its own.

Balzac and the "In Time" Doctrine

Two decades later, in Balzac v. Porto Rico (1922), Chief Justice William Howard Taft extended and formalized this logic. The case arose from a criminal libel prosecution in Arecibo, in which the defendant, a newspaper editor, was denied a jury trial and argued that the Sixth Amendment should protect him despite his residence in Puerto Rico. Taft ruled against him. Citizenship, he wrote, did not mean incorporation into the Union, and only Congress, through “an express declaration of purpose,” could ever change that status. Taft reasoned that Puerto Ricans, having lived under Spanish civil law for four centuries, were not yet prepared for institutions “of Anglo-Saxon origin” such as jury trials, and that they should be permitted to decide for themselves, in time, whether to adopt them. It is a passage worth reading closely because it reveals the essential mechanism of the entire system: constitutional rights are treated not as guarantees but as privileges that Congress may extend at its discretion, whenever it judges the territory ready. In the case of full political representation, Congress has never made that judgment. More than a century has passed, and the “in time” of Taft’s opinion has never arrived.

The practical consequences of this doctrine are stark and remain unresolved today. Puerto Rico has no voting representative in the House of Representatives, no senators, and no electoral votes for president, despite a population larger than that of twenty individual states. A Puerto Rican who relocates to Florida gains full voting rights the moment they establish residency there; the same person, upon returning to the island, loses them entirely. This is not a matter of loyalty, culture, or civic capacity. It is a function of geography alone, engineered by a legal framework that treats Puerto Rico’s 3.2 million citizens as permanently provisional.

2026: Consensus Without Change

What is most striking about this system in 2026 is the widening gap between rhetorical consensus and legal inertia. The judicial and political establishment now largely agrees, at least in words, that the Insular Cases were built on indefensible grounds. In 2022, Justice Neil Gorsuch, concurring in United States v. Vaello-Madero, wrote that the doctrine rests on a “rotten foundation” rooted in “ugly racial stereotypes.” Justice Sonia Sotomayor, in dissent in the same case, agreed the decisions were “premised on beliefs both odious and wrong.” In November 2025, Gorsuch and Justice Clarence Thomas jointly dissented from the denial of certiorari in Veneno v. United States, arguing that the “plenary power” doctrine underlying the territorial framework was constitutionally groundless and warranted reconsideration. The Department of Justice, in a 2024 letter to Congress, stated that it “unequivocally condemns the racist rhetoric and reasoning of the Insular Cases.” And yet nothing has changed. Congress has repeatedly failed to pass even a symbolic resolution rejecting the doctrine. The Supreme Court has repeatedly declined to hear cases that would force it to revisit its own century-old precedent.

The result is a peculiar and enduring form of second-class citizenship, sustained not by an active defense of its logic but by simple institutional inertia. Everyone with the authority to end it appears to agree it should end, yet it persists. For 3.2 million American citizens, the promise of citizenship granted in 1917 remains, in the most consequential sense, unfulfilled: they are bound by the laws of a Congress they did not elect and are excluded from choosing the president who can send them to war. Puerto Rico’s own political debate has never centered on whether this arrangement is legitimate—even its defenders in Washington now concede it isn’t—but on what should replace it. Three parties have organized the island’s electoral life around three distinct answers to that question.