Making Never-Never Land: Race and Law in the Creation of Puerto Rico, Mónica A Jiménez, 2024, University of North Carolina Press
It might be hard to understand the shameful support afforded by the United States to the genocidal terror being unleashed by Israel—given the former’s language of rights and democracy—were it not for a shared gene in the DNA of both countries.
This inherited trait explains why a Democratic White House retains an instinctive prejudice in favour of ethnic cleansing against the Palestinians, seemingly incapable of moral distraction by the many crimes against humanity its patronage of Israel has enabled.
For the genesis of both national stories is a murderous, expansive white settler colonialism constructed on a deep-seated racism that forms the very substrate of political legitimacy—in short, conquest and ethnic erasure are foundation myths. “Democracy” was built upon decimation.
The tools employed to fulfil this historic mission—in the case of the emerging US, originally against Native Americans and black subalterns, then throughout the twentieth-century in more far-flung theatres—have not only been extreme violence, but also segregationist law.
As Mónica Jiménez notes in her brilliant study of just one of these examples in Puerto Rico—admittedly less physically violent, but just as socially catastrophic—it is to the law that we must turn our attention if we are fully to understand the source of legitimacy for settler atrocities.
If the state is, as Weber argued, an entity that claims “the monopoly of the legitimate use of physical force within a given territory”, then the law provides its rulebook. Those rules set out how, when and why violence is applied.
Jiménez writes: “Puerto Rico, and the federal policies and US Supreme Court law that created it, exists within a larger genealogy of law and policy impacting racially excluded others such as Native and African Americans. This body of law served to carve out states of exception for racial undesirables—lacunae of law and special legal designations that allowed the federal government plenary or complete power over these groups.”
The author argues that in these spaces of exclusion, the original inhabitants have been left with few or limited rights and hence are exposed to the whims and repression of the state. While their individual histories differ in complex ways, they have in fact been constructed in law as one.
Puerto Rico—“the oldest colony in the world”—offers an excellent opportunity to study this, as a possession of the US for more than a century whose status remains so obfuscated in law that a subtle but nonetheless sinister form of settler colonisation based upon racial exclusion persists.
Officially, an unincorporated territory of the US under the power of Congress, the island appeared to escape traditional colonialism and gain de facto autonomy in 1952 when it became the Estado Libre Asociado, or Commonwealth of Puerto Rico.
Yet as Jiménez and so many other historians of the territory have pointed out, its economic relationship with the US saw it enter the twenty-first century with a heavily dependent status that has greatly restricted its people’s opportunities and political future.
In 2016, this status became the focus of several legal cases seeking to clarify the limits of governance against the backdrop of efforts to address billions of dollars of outstanding debt.
The outcome of these, combined with the passage by Congress of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), all but curtailed commonwealth status and restored plenary powers over the island to the Capitol.
Economic decline, migration, natural disasters, and bad governance have exacerbated recurrent crises to displace Puerto Ricans at an “alarming rate” while incentivising mainland Americans with big bucks in search of sunny real estate to buy up the territory.
The indigenous population has declined rapidly—far more Puerto Ricans live on the US mainland than on the island itself—and while the proportion of those from the mainland who have made the island their home remains at about 8 per cent, there has been a dramatic change in property market dynamics linked to policies and factors that make it easier for non-Hispanics to afford houses and leave locals out in the cold.
What we are witnessing is the slow but sure creation of a “Puerto Rico without Puerto Ricans”—a form of ethnic cleansing fit for a democracy, but one that has in fact always been the logical consequence of the island’s status under racialised US laws.
As a legal scholar, Jiménez has focused on those laws and in particular a group of Supreme Court decisions known collectively as the “Insular Cases” which were decided in the first few years after the US acquired the overseas territories ceded to it by Spain in 1898.
Decisions in the Insular Cases covering various legal issues ultimately sought to define the outlines of the US relationship with its new overseas territories—and the logic employed was racial.
Jiménez writes: “The Court’s opinions in these cases were so prosaically racist and eugenic in their logic that I was shocked (though I really shouldn’t have been) when I learned that not only did they remain valid law, but in fact they continue to be the basis for the United States’ relationship with Puerto Rico today.”
She demonstrates how race and law have been the organising principles of the US–Puerto Rico relationship since 1898, when racial science was ascendant and policymakers overwhelmingly subscribed to ideas of social Darwinism and the conviction that the white race was better at democratic governance.
This was a period in which rhetoric in both imperialist and anti-imperialist circles was unashamedly white supremacist, anti-black, and contemptuous of the “mongrel” peoples occupying the island territories.
Very soon the Supreme Court would be enshrining in law such racialised ideas about the residents of the new territories in order to decide on their status and treatment.
These decisions have had a deep and lasting impact—the Insular Cases remain the legal underpinning of the US relationship today even though in principle the country extols its aversion to racial discrimination.
Jiménez examines key rulings—beginning with the case of Downes v Bidwell in 1900 over something as innocuous as import duties on oranges—to tell a story in which law has been shaped to allow the US government to hold onto the insular territories and reap the economic benefits of having them, while not extending citizenship or rights to the territories or their inhabitants.
Key to this was a status that declared Puerto Rico to be an “unincorporated territory”—a category with its precedent in previous decisions dealing with native and black Americans.
Jiménez writes: “The Downes case reached back to those precedents and to their racialised and racist logics in order to find that Puerto Rico and its inhabitants were undesirable, unprepared, and not white enough to be Americans.”
She surveys a series of decisions in the first two decades of the twentieth century in which the Supreme Court made significant pronouncements about the place of Puerto Rico within US politics and the constitutional limits that applied to it which fitted into “a larger geography of racialised legal exception”.
While these exceptions remain to date, largely because the Supreme Court has never been asked to overrule the Insular Cases, the writing may finally be on the wall for a body of law based on stereotypes that have no foundation in the US constitution.
Recognition by the conservative justice, Neil Gorsuch, of the “shameful” cases based on “ugly racial stereotypes” which “deserve no place in our law” suggests a clear direction of travel.
Jiménez writes: “The point that Gorsuch sought to emphasise is that the status of unincorporated territory that Puerto Rico bears was founded on racist ideas; thus, the ability to exclude Puerto Rico in various contexts is born from racism. As a result, that racism undergirds Congress’s repeated reliance on Puerto Rico’s status as an unincorporated territory to exclude it from benefits and protections.”
But if the eventual consequences of this body of law being overturned could be momentous and long overdue, don’t hold your breath.
It has been 126 years since the signing of the Treaty of Paris, which ended the Spanish-American War, but it was not until 2014 that Harvard Law School held an event dedicated to reevaluating the Insular Cases. At that event, the then-Dean, Martha Minow, confessed she had never heard of them in law school.
Change comes slowly to American jurisprudence. After 1870, black people theoretically became equal before the law—but it took 95 years for this to be established in practice with the Voting Rights Act of 1965. The population of Puerto Rico may not have that long.
Read this and receive articles straight to your inbox by subscribing on Substack
Categories: Caribbean, North America, Puerto Rico, United States