{"id":50444,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/bombs-bursting-in-air-and-our-flag-still-there.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"bombs-bursting-in-air-and-our-flag-still-there","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/bombs-bursting-in-air-and-our-flag-still-there.html","title":{"rendered":"Bombs Bursting In Air, And Our Flag Still There:"},"content":{"rendered":"\n
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BOMBS BURSTING IN AIR, AND OUR FLAG STILL THERE: Why A Small Island Near Puerto Rico May Be The Harbinger Of A Constitutional Crisis <\/h1><\/td>\n <\/tr>\n

By SANFORD LEVINSON<\/h2><\/a><\/td>\n <\/tr>\n

Thursday, Jul. 12, 2001<\/td>\n\n <\/tr>\n <\/table>\n

\tBoth the Clinton and Bush Administrations have wrestled with the problem \nof what to do with Vieques. A small island off Puerto Rico, it is, according to \nthe Navy, uniquely valuable as a site for the training of armed forces, firing \nlive ammunition, and dropping real bombs, in simulated battlefield conditions. \n<\/p>\nuse of Vieques, though not until 2003. Apparently, the White House believes that \nprotests on Vieques are having sufficient impact on mainland Puerto Ricans and \nother Hispanics to place their votes in the 2004 election in jeopardy. \n

Vieques may, however, be only the tip of the iceberg with regard to the role \nthat Puerto Rico may play in our political and legal consciousness in coming years. \n<\/p>\n \n<\/b>

Puerto Rico\u0092s Troubled Status<\/p>\n \n

Puerto Rico is the largest, most populous remaining legacy of the Nineteenth \nCentury\u0092s Age of Imperialism. Even now, the United States has yet to confront \nfully the implications of its venture into imperialist governance. <\/p>\n

\tWhen the United States “won” Puerto Rico (along with the Philippines) \nin the Spanish-American War \n<\/p><\/span>\n\n \n \n
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<\/td>\n<\/tr>\n<\/table>\n\nof 1898, it gained not only territory but also jurisdiction over millions of \npersons. That raised an important question: Were these new Americans to fully \nbe welcomed into the American polity, with the rights and privileges that attach \nto membership? Or, put another way, as the Supreme Court\u0092s 1901 “Insular \nCases” asked, “Does the Constitution Follow the Flag?” Unfortunately, \nthe short answer was “no.” \n

Prior American expansionism had been predicated on the assumption that in due \ntime, territories would become States \u0097 at a point when whites had settled \neach area and organized a functioning government there. That pattern held true \nfor Hawaii and Alaska. But America\u0092s “imperial territories,” such \nas Puerto Rico, did not fit the pattern. Indeed, they were notable for their lack<\/i> \nof white settlement. As a result, they were not considered “States-in-waiting.”<\/p>\n

The five-justice majority of the Supreme Court that decided the Insular Cases \nmade no effort to hide the reason for the distinction between incipient States \nsuch as Hawaii and Alaska, and imperial territories such as Puerto Rico. In the \nCourt\u0092s view, Puerto Ricans (and, even more, Filipinos) were just too different \nfrom “real” Americans, as measured by color, religion, language, and \ncustoms, for the territory to aspire to full membership in the polity, with attached \nconstitutional rights. <\/p>\n

In this sense, the Court viewed the inhabitants of Puerto Rico much as it viewed \nAmerican Indians. Basically, Puerto Ricans, like Americans aboriginals, had only \nsuch rights as Congress chose to respect.<\/p>\n \n<\/b>

Citizenship without Governance Rights<\/p>\n \n

\n\n\tWhile Congress extended citizenship to Puerto Ricans in 1917, the switch \nin status made little practical difference. Puerto Ricans did gain the right to \nmigrate to the mainland. However, islanders did not gain the right to full participation \nin the basic governmental institutions of the United States. Even today, they \nstill lack that right.<\/p>\nwas given the right to choose three presidential electors. Yet no such right exists \nfor the four million Islanders. Nor do they have voting representation in the \nHouse of Representatives or the Senate. \n

According to its population, Puerto Rico, if it were a State, would merit seven \nrepresentatives \u0097 a respectable contingent. With the persuasive force and \nvoting power of those seven, as well as two Senators, might the bombs already \nhave stopped bursting in Vieques? <\/p>\n

In this context, the lyrics from the “Star Spangled Banner” \u0097 \nreferring to “bombs bursting in air” that “gave proof through the \nnight that our flag was still there” \u0097 take on a new, ironic meaning: \nOn Vieques, the bombs show that our flag is still there, but that the Constitution \ncontinues to be, at best, an uncertain presence. If taxation without representation \nis wrong, how much worse might bomb-testing without representation be? <\/p>\n \n<\/b>

Why a Pro-Statehood Petition from Puerto Rico Might Well Be Rejected<\/p>\n \n

\tApproximately 45% of Islander Puerto Ricans support statehood; an equal \nnumber support the retention of the present Commonwealth status; and the remainder \nwould opt for independence. But imagine, for a moment, that a solid majority were \nto become pro-statehood and to petition Congress for admission to the Union. <\/p>\n

One can easily imagine that such a petition would generate intense controversy \nand, quite possibly, rejection. The reasons would undoubtedly include the race-tainted \nrationales set out by the Court in 1901 \u0097 even if members of Congress today \nwould speak more euphemistically, save perhaps with regard to the issue of language. \n(Most Puerto Ricans speak only Spanish, and that would doubtless be cited as a \nreason to reject statehood.)<\/p>\n \n<\/b>

A Constitutional Crisis?<\/p>\n \n

Puerto Rico has no “constitutional right” to become a State, if by \nthat one means a legal entitlement that a court would recognize (and enjoin Congress \nto implement). Nevertheless, the Constitution has meaning even if the Court, for \nwhatever reason, refuses to enforce it. For that reason, the denial of statehood \nwould constitute a true constitutional crisis for the United States. <\/p>\n

Surely it would be intolerable to continue to treat Puerto Rico as if the mindset \nand categories of the Age of Imperialism were unchanged. If the United States \nwere to insist on continuing to treat Puerto Rico as a colony, it could well expect \nlegitimate castigation from the United Nations \u0097 as well as from Puerto Ricans \nthemselves. <\/p>\n

In a worst case scenario, more bombs might burst in air \u0097 or, at least, \ngunfire might be exchanged \u0097 either as part of a newly invigorated Puerto \nRico independence movement or, perhaps even worse, as part of the armed suppression, \nin the name of the United States, of such a movement. <\/p>\nfellow citizens\u0092 demands for “republican governance” and the “consent \nof the governed.” After all, they are the linchpins of our constitutional \norder. \n<\/span> \n

\n\n\n<\/a>\nSanford Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Regents Chair in Law and Professor of Government at the University of Texas (Austin). An internationally eminent scholar of constitutional law, Professor Levinson also teaches and writes about professional responsibility, jurisprudence, and political theory. He is the author of Constitutional Faith<\/u> (Princeton, 1988) and Written in Stone<\/u> (Duke, 1998).\n\n\n

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