Why does America have territories, and why aren’t they governed the same way as states? Despite boasting a total population of around 4 million people, the legal fate of the five inhabited territories of the United States and the constitutional status of their residents have always occupied surprisingly little of the American legal imagination. However, that might be changing as the Supreme Court considers two cases directly involving Puerto Rico’s self-governing authority and as a number of legal challenges involving the other territories wind up in federal courts. Rulings in these cases may go a long way toward unwinding the complicated, confusing, and often contradictory relationship between the territories and the United States. In the process, they might also unravel some of the imperialist justifications for maintaining the status quo. Puerto Rico, the largest of the territories by far, is the subject of the bulk of the legal debate. It is also the territory that has most come up against the legal, governmental, and financial limits of its status. The island is in the midst of a decade-long economic contraction, which has led to hundreds of thousands fleeing to the mainland for jobs and opportunities.
Many attribute the crisis to the island’s lack of “statehood,” as either an independent nation or as a state in the United States. “Puerto Rico doesn’t have access to financial instruments available both to states and to sovereign nations,” said Carlos Iván Gorrín Peralta, a professor at the InterAmerican University of Puerto Rico and a territorial-law scholar. “It is in essence in a straight jacket.”
One case in front of the Supreme Court challenges that understanding of Puerto Rico’s lack of sovereignty. Puerto Rico v. Sanchez Valle, which was argued in January, adds a new wrinkle to an old question: Can a person be charged twice for the same crime? Generally, a strong Fifth Amendment protection against double jeopardy makes that answer clear. However, for the purposes of much of constitutional law, the states and the federal government are considered separate, but overlapping, sovereigns, meaning that multiple states and the federal government can charge an individual with the same exact crime.
In a ruling on whether two defendants could be charged with gun possession in the territory after a federal conviction, the highest court in Puerto Rico ruled that the territory does not have its own sovereignty. The government of Puerto Rico appealed on the grounds that its creation of a constitution in 1952, some conflicting congressional statements over the past 50 years, and the gradual evolution of its relationship with the federal government, combine to grant it sovereignty.