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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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