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50 Suffolk U. L. Rev. 587 (2017)
The Evolution of Democratic Governance under the Territorial Clause of the U.S. Constitution

handle is hein.journals/sufflr50 and id is 629 raw text is: The Evolution of Democratic Governance Under the Territorial Clause of the U.S. Constitution Rafael Hemndez Col6n* I. INTRODUCTION On July 4, 1776, The Declaration of Independence promulgated the foundational principles of the United States of America: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.1 These truths, however, are not self-evident; nor are these rights universally recognized for United States citizens residing in Puerto Rico, the Mariana Islands, the Virgin Islands, Guam, and American Samoa-the former two commonwealths, the latter three unincorporated territories of the United States. During the continental expansion in the nineteenth century, the United States Supreme Court authorized the plenary powers doctrine, which enabled Congress to autocratically use the constitutional power conferred upon it to govern the territories.2 The Supreme Court developed these norms under the * Governor of Puerto Rico 1973-1976, 1985-1992; Attorney General of Puerto Rico 1965-1967; Professor of Law Catholic University of Puerto Rico 1960-1965, 1994-2006, 2015; Author of numerous books and articles on Puerto Rico's commonwealth status, including: LA NUEVA TESIs (1979), HACIA LA META FINAL: EL NUEVO PACTO - UN PASO ADELANTE (Jos6 Herndndez-Mayoral & Pablo J. Hernndez Rivera eds., 2011), and ESTADo LIBRE AsocIADo: NATURALEZA Y DESARROLLO (Pablo J. Herntndez Rivera ed., 2014) 1959-2017. 1. The Declaration of Independence para. 2 (U.S. 1776). 2. See U.S. CONST. art. IV, § 3, cl. 2. The express grant of this power is found in Article IV, Section 3, Clause 2 of the United States Constitution. The U.S. Supreme Court, however, applied norms from nineteenth- century international law, and recognized that the power to govern territories is inherent to United States sovereignty. See De Lima v. Bidwell, 182 U.S. 1, 196 (1901) (recognizing right to govern territories inherent in ability to acquire territories); United States v. Kagama, 118 U.S. 375, 380 (1886) (finding ability to make territorial law stems from exclusive sovereignty); Am. Ins. Co. v. 356 Bales of Cotton, 26 U.S. (I Pet.) 511, 542 (1828) (postulating ability to govern territory results from right to acquire territory). These powers stem from the President's power as Commander in Chief, or from his foreign relations powers, including the power to execute treaties. See ARNOLD H. LEIBOWITZ, DEFINING STATUS: A COMPREHENSIVE ANALYSIS OF UNITED STATES TERRITORIAL RELATIONS 16 n.45 (1989); see also United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 315, 316, 318 (1936) (recognizing need to maintain ... effective control of international relations).

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