The Foraker Act of 1900

On April 12, 1900, Congress replaced the military government in Puerto Rico with a civilian government under the terms of the Foraker Act an organic or territorial law. This legislation normalized or incorporated almost all the recommendations made by Brigadier General Davis. The Foraker Act contained two provisions that shaped the contours of the status of Puerto Rico. First, the law applied a 15% tariff or duty on merchandize trafficked between Puerto Rico and the United States, temporarily treating the newly annexed island-territory as a foreign country for purposes of the Dingley Tariff of 1897 the United States Constitution more generally (§3). In addition, it ascribed or imposed a Puerto Rican citizenship on persons born on the island (§7). This was the first time that the United States annexed a territory and refused to collectively naturalize the residents of the newly annexed territory or promised to so at a later date. More importantly, it affirmed the principle that Puerto Rico and its citizens belonged to the Anglo-American empire but were simultaneously barred from equal membership in the United States polity. In sum, the Foraker Act of 1900 established that the United States could selectively rule Puerto Rico as a foreign country for domestic or constitutional purposes.

The Foraker Act, an organic or territorial act, was also designed to provide a local form of government for Puerto Rico. The new organic act provided for a civilian governor appointed by the United States President (§17). This law established an Executive Council, also appointed byt the President, that assumed both executive agency and legislative functions, serving a role aking to that of an upper legislative chamber (§18-26). In addition, the Foraker Act affirmed the local judiciary structure created by the military governors (§33) and established a federal territorial court to replace the existing provisional court (§34). This law also created a local House of Delegates (§27-28), the only branch of government subject to popular elections, albeit by qualified voters (§29). Suffice it to say, the Foraker Act imposed an undemocratic territorial regime controlled by the President of the United States.

The Insular Cases of 1901 and the Doctrine of Separate and Unequal

The Supreme Court began to rule on the constitutionality of the new territorial law and policy within a year of the enactment of the Foraker Act of 1900 in a series of rulings generally known as the Insular Cases. Professor Efrén Rivera Ramos suggests that the ensuing development of the doctrine of territorial incorporation, or the constitutional interpretation offered by these opinions, can be situated in a series of opinions issued by the Court between 1901 and 1922. The core or basic interpretations were first outlined in 1901. By 1904, a majority of the justices in the Supreme Court adopted the basic premises of the doctrine and addressed other insular policies developed by Congress. In 1922, the Court unanimously affirmed the application of this doctrine to Puerto Rico, which was now primarily inhabited by U.S. citizens. Understanding this history is crucial to understanding the contours of Puerto Rico’s political status and its relationship to the United States.

The core principles of the Supreme Court’s interpretation were first outlined by Justice Edward D. White in his concurring opinion in Downes v. Bidwell (1901). In Downes, the Court addressed the constitutionality of the Foraker tariff or Section Three, or more specifically whether this tariff violated the so-called Uniformity Clause of the Constitution (U.S. Constitution, art. I, §8, cl. 1), which barred the imposition of tariffs on goods trafficked within the United States. A plural majority (5-4) affirmed the constitutionality of Section Three but did not agree on rationale or justification for the decision. In fact, eight of the nine justices disagreed with the rationale offered by Justice Henry B. Brown, the author of the majority opinion. Although, the justices wrote five opinions (1 majority, 2 concurring, and 2 dissenting opinions), the three core opinions aligned with the prevailing ideological debates of the moment.

Justice Brown’s majority opinion embraced the prevailing imperialist ideology and essentially argued that territories were not a part of the United States and therefore the Constitution did not apply or limit the ability of Congress to enact legislation that treated Puerto Rico as a foreign country for the purposes of imposing a tariff on goods arriving from the island. Under this interpretation, Congress, a creature of the Constitution, possessed plenary powers that were outside of and not limited by the Constitution to rule Puerto Rico and all territories more generally.

In contrast, the key dissenting opinion written by Chief Justice Melville Fuller followed the anti-imperialist or colonialist ideology. Under past or established legal precedents, the Chief Justice argued, once a territory was annexed, it became a part of the United States for purposes of the Constitution. Even though some constitutional provisions were not locally applicable (i.e. Electoral College) during the territorial stage or before a territory became a state, Congress’ power to enact discriminatory laws was also limited by the Constitution.

Justice White’s concurring opinion also affirmed the power of Congress to impose a tariff but relied on an argument reminiscent of the Third View. Central to Justice White’s concurring opinion were the following interpretations:

• Some fundamental or natural rights applied to Puerto Rico and Congress did not possess an absolute power to enact territorial legislation that violated some established interpretations of the Constitution.
• Congress or more precisely the Foraker Act of 1900 did not explicitly or implicitly “incorporate” or treat Puerto Rico like a part of the United States. Instead, this legislation left the island in an “unincorporated” status, that is a territorial possession that belonged to, but was not a part of the United States, a precondition for the eventual admission of a territory into the Union of states. Until Congress enacted legislation that explicitly or implicitly incorporated Puerto Rico, Congress enacted legislation that treated the island as a separate and unequal territorial possession or property, again lo long as that legislation did not violate the “fundamental” or “natural” rights of the island’s residents.
• Because Puerto Rico was unincorporated, Congress could selectively rule the island (or archipelago) as a foreign possession for domestic or constitutional purposes.

Congress has never enacted legislation explicitly incorporating or changing Puerto Rico’s territorial status. Under the Insular Cases doctrine this is a political decision to be resolved by the US Congress. Puerto Rico has remained an unincorporated territory since 1900.