[*] Associate Professor of Law, St. Thomas University. B.A., Lehman College, 1985; J.D., University of Wisconsin, 1988. This work is dedicated in loving memory to Carmen Hernandez. Thanks to Professors Kevin Johnson, Michael Olivas, Robert Westley, and Adeno Addis for their assistance and encouragement with this project and to Jodie Siegal, Eric Nelson, and Nicole Hessen for their invaluable research assistance. A very special thanks to Katerina Estrella Román for her inspiration, enthusiasm, and love.
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 EMMA LAZARUS, The New Colossus, reprinted in EMMA LAZARUS: SELECTIONS FROM HER POETRY AND PROSE 48 (Morris U. Schappes ed., 3d. ed. 1967) (1883) (inscribed on the Statue of Liberty).
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 JAMES MORTON SMITH, FREEDOM'S FETTERS: THE ALIEN AND SEDITION LAWS AND AMERICAN CIVIL LIBERTIES 24 (amended ed. 2d prtg. 1967) (quoting letter from William Smith Shaw to Abigail Adams, in Adams Papers VIII, at 48 (May 20, 1798) (on file with the Massachusetts Historical Society)).
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 A paradox is a statement or sentiment that is seemingly contradictory or opposed to common sense and, yet, perhaps true in fact. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1636 (1993).
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 See generally Kevin R. Johnson, The Antiterrorism Act, the Immigration Reform Act, and Ideological Regulation in the Immigration Laws: Important Lessons for Citizens and Noncitizens, 28 ST. MARY'S L.J. 833 (1997) (tracing the history of political discrimination against immigrants from the early alien and sedition laws to contemporary immigration reform efforts); Kevin R. Johnson, Fear of an "Alien Nation": Race, Immigration, and Immigrants, 7 STAN. L. & POL'Y REV 111 (1996) (noting that the immigration reform debate is as much about race relations as it is about immigration); Paul Meehan, Combatting Restrictions on Immigrant Access to Public Benefits: A Human Rights Perspective, 11 GEO. IMMIGR. L.J. 389 (1997) (arguing that international human rights principles should become part of immigration reform debates). But see Rep. Lamar Smith & Edward R. Grant, Immigration Reform: Seeking the Right Reasons, 28 ST. MARY'S L.J. 883 (1997) (arguing that the Illegal Immigration Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009, inspires confidence that future reform efforts will be guided by sound policy).
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 See Robert A. Katz, The Jurisprudence of Legitimacy: Applying the Constitution to U.S. Territories, 59 U. CHI. L. REV. 779, 779 n.1 (1992).
The United States' territorial system consists of five island groups that fly the American flag but which are not states—Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa. The United States also has special responsibilities for the Federated States of Micronesia, the Marshall Islands, and Palau.
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 See id. at 779-80.
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 Deborah D. Herrera, Unincorporated and Exploited: Differential Treatment for Trust Territory Claimants—Why Doesn't the Constitution Follow the Flag?, 2 SETON HALL CONST. L.J. 593, 593 (1992); accord Katz, supra note 5, at 780.
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 See generally Downes v. Bidwell, 182 U.S. 244 (1901) (holding that Congress is not required to treat Puerto Rico uniformly for the purpose of duties, imposts, and excises, as it would the states); De Lima v. Bidwell, 182 U.S. 1, 200 (1901) (holding that Puerto Rico is a U.S. territory and not a foreign country).
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 See infra Part III.A.
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 See U.S. CONST. amend XIV, § 1.
 Ch. 145, 39 Stat. 951, 953 (1917) (codified as amended in scattered sections of 48 U.S.C.). Statutory citizenship continues under 8 U.S.C. § 1402 (1994).
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 See H.R. REP. NO. 105-131, pt. 1, at 33-34 (1997). For the purpose of this Article, the phrases "Puerto Rican people" and "people of Puerto Rico" refer to the native residents of Puerto Rico. Puerto Rico is a territory in the Caribbean Sea and is comprised of several islands. The territory has a population of 3.7 million. See Puerto Rico Status Plebiscite, Joint Hearing Before the Subcomm. on Native Am. Insular Affairs of the Comm. on Resources, and the Subcomm. on the W. Hemisphere of the Comm. on Int'l Relations, 104th Cong. 141 (1995) [hereinafter Puerto Rico Status Plebiscite] (statement of Jeffrey L. Farrow, Co-Chair of U.S. Interagency Working Group on Puerto Rico).
14 H.R. 856, 105th Cong. (1998).
15 H.R. REP. NO. 105-131, pt. 1, at 19 (1997) (statement of Rep. Young).
16 See, e.g., Harris v. Rosario, 446 U.S. 651, 651 (1980) (holding constitutional the fact that recipients of Aid to Families with Dependent Children residing in Puerto Rico receive less assistance than do residents of the states based on an interpretation of the Territorial Clause of the U.S. Constitution).
17 See Gina Lubrano, Opinion, Don't Know Much About Geography, SAN DIEGO UNION- TRIB., May 27, 1996, at B7 (responding to a previous article that "referred to Puerto Rico as being among those 'other nations'").
Baseball, that great American pastime, is becoming an international game, according to a Sports section headline last Monday. A story pointed out that about 120 major league players developed their playing skills "in other nations." It was an interesting premise, but a seriously flawed one. The story referred to Puerto Rico as being among those "other nations."
18 See David Jackson & Paul de la Garza, Rep. Gutierrez Uncommon Target of a Too Common Slur, CHI. TRIB., April 18, 1996, § 1, at 1; see also Alex Garcia, One Day at the Capitol, HISPANIC BUS., June 1996, at 112.
19 Garcia, supra note 18, at 112.
20 Jackson & de la Garza, supra note 18, at 1.
21 Puerto Rico Status Plebiscite, supra note 13, at 10-11 (statement of Rep. Serrano).
22 Id. at 10 (statement of Rep. Serrano). Despite the anomalous status that Representatives Gutierrez and Serrano address, few Hispanics who were questioned about the incidents would be surprised "given the state of race relations and the anti-immigrant mood against Hispanics [in the United States]." Jackson & de la Garza, supra note 18, at 28. Unfortunately, the hurtful, humiliating, and belittling treatment of the alien-citizen occurs everyday to many less prominent Puerto Ricans and goes unnoticed. See id.
23 See generally Kenneth L. Karst, Why Equality Matters, 17 GA. L. REV. 245 (1983) (arguing that America's moral ideal of equality has not always been apparent in practice but remains, nonetheless, essential to American rhetoric).
24 See Kenneth L. Karst, Citizenship, Race, and Marginality, 30 WM. & MARY L. REV. 1, 1 (1988) (noting that the principle was most evident after the Civil War when the abolition of slavery was at the forefront of American politics).
25 Id. (evaluating the plight of the poor in America and their relationship to the constitutional ideal of equality).
27 See generally id. at 8-18 (discussing recent examples of economic and social subordination of African Americans, children, women, and the poor).
28 See Eric Foner, Bondage, Freedom & the Constitution, 17 CARDOZO L. REV. 2113, 2113 (1996) (noting that the American conception of "freedom" is based, in part, on the institution of slavery).
29 See Karst, supra note 24, at 2.
30 H.R. 856, 105th Cong. (1997) (including procedures for a referendum and congressional action to decide whether Puerto Rico should become a new U.S. state).
31 See H.R. REP. NO. 105-131, pt. 1, at 12-14 (1997).
32 DOCUMENTS ON THE CONSTITUTIONAL HISTORY OF PUERTO RICO 55 (Office of the Commonwealth of Puerto Rico ed., 2d ed. 1964) [hereinafter DOCUMENTS].
33 H.R. REP. NO. 105-131, pt. 1, at 12 (1997).
34 The people of Puerto Rico consist of the descendants of native Arawak and Taino tribes who migrated from the South American Antilles and settled the island over several centuries. See generally Francisco Moscoso, Chiefdom and Encomienda in Puerto Rico: The Development of Tribal Society and the Spanish Colonization to 1530, in THE PUERTO RICANS: THEIR HISTORY, CULTURE, AND SOCIETY 3-24 (Adalberto L"pez ed., 1980) (tracing the earliest evidence of tribes migrating from Venezuela to the Antilles as early as 15,000 B.C.E., as well as the eventual migration of the Arawak to the Antilles and their integration with Taino settlers who came by canoe to the island). The Spanish imperialists began colonizing in the early 16th century and eventually introduced African slaves to Puerto Rico. See Adalberto L"pez, The Evolution of a Colony: Puerto Rico in the 16th, 17th and 18th Centuries, in THE PUERTO RICANS: THEIR HISTORY, CULTURE, AND SOCIETY 26 (Adalberto L"pez ed., 1980). Thus, today the Puerto Rican people are an amalgam of native Arawak and Taino, Africans, and Spanish imperialists.
35 See, e.g., United States v. Wong Kim Ark, 169 U.S. 649, 664 (1898) (holding that a child born in the United States to non-citizens was a U.S. citizen). See also PETER H. SCHUCK & ROGERS M. SMITH, CITIZENSHIP WITHOUT CONSENT 9 (1985); JOHN S. WISE, A TREATISE ON AMERICAN CITIZENSHIP 51-66 (Fred B. Rothman & Co. 1980) (1906); Robert J. Shulman, Comment, Children of a Lesser God: Should the Fourteenth Amendment Be Altered or Repealed to Deny Automatic Citizenship Rights and Privileges to American Born Children of Illegal Aliens?, 22 PEPP. L. REV. 669, 691 (1995).
36 See U.S. CONST. amend. XIV, § 1. While citizenship by birthright is a long-standing means of acquiring citizenship status, seekers of immigration restrictions have proposed that children born to illegal aliens should be denied U.S. citizenship. See Kevin R. Johnson, Racial Hierarchy, Asian American and Latinos as "Foreigner," and Social Change: Is Law the Way to Go?, 76 OR. L. REV. 347, 348 (1997) (referring to the proposal of Peter Schuck and Robert Smith in their book Citizenship Without Consent).
37 See U.S. CONST. art. I, § 2, cl. 2 (stating that a member of the House of Representatives must have been "a Citizen of the United States" for seven years); U.S. CONST. art. I, § 3, cl. 3 (stating that a Senator must have been "a Citizen of the United States" for nine years).
38 U.S. CONST. art. I, § 8, cl. 4.
39 Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103, 103-04 (repealed 1795) (providing that a "free white person" could apply for citizenship after two years of residency in the United States).
40 60 U.S. (19 How.) 393 (1857) (Dred Scott).
41 See id. at 404.
42 See id. at 411. The Dred Scott Court reasoned that African Americans had not been granted citizenship by the Constitution at the time of its framing because they were regarded as "beings of an inferior order" and thus not part of "the people" as defined in the Constitution. Id. at 407-08. In a purported effort to rectify the wrong created by Dred Scott, the Fourteenth Amendment was enacted in 1868. The Fourteenth Amendment was intended to "protect people of all races against unfortunate actions." Shulman, supra note 35, at 694. The Civil Rights Act of 1866 also effectively overruled the Dred Scott decision by declaring: "[A]ll persons born in the United States . . . are hereby declared to be citizens of the United States . . . ." Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 (1866) (codified as amended at 42 U.S.C. §§ 1981-1982 (1994)). The statute, however, contains a xenophobic reference to Native Americans: "[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." Id.
It is ironic that the Fourteenth Amendment was enacted to end racism specifically against African Americans, but is currently being used by the proponents of the "color-blind society" to eradicate remedial programs such as affirmative-action. See, e.g., Pete Wilson, Commentary, California Fair Play, WASH. TIMES, Mar. 19, 1998, at A19 (arguing that race-based and gender-based preferences in awarding government contracts violate the Fourteenth Amendment).
43 See infra Part III.A.; see also Jonathon C. Drimmer, The Nephews of Uncle Sam: The History, Evolution, and the Application of Birthright Citizenship in the United States, 9 GEO. IMMIGR. L.J., 667, 700 (observing that the same arguments employed in Dred Scott were used in the Insular Cases in order to deny birthright to territorial residents); Gerald L. Neuman, Whose Constitution?, 100 YALE L.J. 909, 958 n.288 (1991) (noting that the Insular Cases established a "framework of second-class status for overseas territories").
44 See Sugarman v. Dougall, 413 U.S. 634, 652 (1973) (Rehnquist, J., dissenting) (stating that the primary reason to amend the Constitution was to overrule Dred Scott).
45 U.S. CONST. amend. XIV, § 1.
46 See Drimmer, supra note 43, at 667-68.
47 See, e.g., Kiyoko Kamio Knapp, The Rhetoric of Exclusion: The Art of Drawing a Line Between Aliens and Citizens, 10 GEO. IMMIGR. L.J. 401, 412 (1996) ("Historically, the privilege of participating in the democratic decision-making process has constituted the essence of citizenship.").
48 Perez v. Brownell, 356 U.S. 44, 78 (1958) (Warren, C.J., dissenting) (stating that voting in a foreign election does not constitute a "voluntary abandonment of citizenship").
49 Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).
50 Sugarman v. Dougall, 413 U.S. 634, 652 (1973) (Rehnquist, J., dissenting).
51 JOSé A. CABRANES, CITIZENSHIP AND THE AMERICAN EMPIRE 5 n.12 (1979) (emphasis added); accord Siegfried Wiessner, Blessed Be the Ties That Bind: The Nexus Between Nationality and Territory, 56 MISS. L.J. 447, 448-49 (1986) ("The relationship theory [of citizenship] views nationality as a legal bond between an individual and his home state that encompasses, by necessity, specific rights and duties.").
52 3 GREEN HAYWOOD HACKWORTH, DIGEST OF INTERNATIONAL LAW 1 (1942) (emphasis added).
53 But see supra note 42.
54 See Karst, supra note 24, at 3. Unlike citizens with formal recognition of membership in the political community, aliens are outsiders to the national community. For immigration purposes, the term "alien" refers to "any person not a citizen or national of the United States." 8 U.S.C. § 1101(a)(3) (1994). Though aliens may live in this country for many years and "have deep community ties in the United States, noncitizens remain aliens, an institutionalized 'other,' different and apart from 'us.'" Kevin R. Johnson, "Aliens" and the U.S. Immigration Laws: The Social and Legal Construction of Nonpersons, 28 U. MIAMI INTER- AM. L. REV. 263, 264 (1997). Accordingly, the label "alien" calls attention to one's "otherness." See Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV. 1425, 1428 (1995).
55 Karst, supra note 24, at 3.
56 See Drimmer, supra note 43, at 667.
57 See id.
58 See Cabell v. Chavez-Salido, 454 U.S. 432, 438 (1982) (holding that "citizenship is . . . a relevant ground for determining membership in the political community"); Drimmer, supra note 43, at 667 (asserting that citizenship signifies membership in a political community and binds both citizens and state).
59 Neil Gotanda, Race, Citizenship, and the Search for Political Community Among "We the People": A Review Essay on Citizenship Without Consent, 76 OR. L. REV. 233, 236 (1997).
60 Spain formally ceded Puerto Rico, Cuba, and the Philippines to the U.S. in December 1898. See Treaty of Paris, Dec. 10, 1898, U.S.-Spain, 30 Stat. 1754.
61 See Jones Act of 1917, ch. 145, 39 Stat. 951 (1917) (codified as amended in scattered sections of 48 U.S.C.).
62 See Ediberto Román, Empire Forgotten: The United States' Colonization of Puerto Rico, 42 VILL. L. REV. 1119, 1119 (1997) (arguing that the United States has refused to acknowledge its imperialist role while treating Puerto Rico as a colony).
63 See H.R. REP. NO. 105-131, pt. 1, at 49 (1997) (statement of Rep. Gutierrez).
64 See General Accounting Office, U.S. Insular Areas: Applicability of Relevant Provisions of the U.S. Constitution, GAO/HRD-91-18 (June 20, 1991), in 3 PUERTO RICO: POLITICAL STATUS REFERENDUM 1989-1991, at 471 (P.R. Fed. Affairs Admin. ed., 1992).
65 See Harris v. Rosario, 446 U.S. 651 (1980) (holding that the lower level of Aid to Families with Dependent Children reimbursement provided to Puerto Rico did not violate the Fifth Amendment's equal protection guarantee).
66 See U.S. CONST. art. IV, § 3, cl. 2. Congress has the "[p]ower to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Id.
67 See Treaty of Paris, Dec. 10, 1898, U.S.-Spain, 30 Stat. 1754.
68 See id. at art. IX, 30 Stat. at 1759.
69 See José Julián Alvarez González, The Empire Strikes Out: Congressional Ruminations on the Citizenship Status of Puerto Ricans, 27 HARV. J. ON LEGIS. 309, 318-30 (1990).
70 See Afroyim v. Rusk, 387 U.S. 253, 262-68 (1967) (holding that Fourteenth Amendment citizenship may not be altered by the federal government, the states, or any other governmental body).
71 See Jones Act of 1917, ch. 145, 39 Stat. 951, 953 (1917) (codified as amended in scattered sections of 48 U.S.C.).
72 Johnson, supra note 54, at 271.
73 See generally De Lima v. Bidwell, 182 U.S. 1, 197 (1901) (stating that a territory acquired by the United States belongs to the United States and is subject to disposition by Congress); Murphy v. Ramsey, 114 U.S. 15, 44 (1885) (stating that Congress could nullify the Utah Territory's polygamist law); National Bank v. County of Yankton, 101 U.S. 129, 132-33 (1879) (stating that Congress could nullify the law of the Territory of Dakota).
74 See De Lima, 182 U.S. at 197; Goetze v. United States, 182 U.S. 221, 221 (1901); Crossman v. United States, 182 U.S. 221, 221 (1901) (stating in both Goetze and Crossman that a board of tariff appraisers had no jurisdiction over goods imported from Puerto Rico or the Hawaiian Islands due to the fact that these were not foreign countries); Dooley v. United States, 182 U.S. 222, 235-36 (1901) (holding that Puerto Rico became part of the United States upon cession by treaty for purposes of tariffs); Armstrong v. United States, 182 U.S. 243, 243 (1901) (holding that tariff duties on goods imported from Puerto Rico were proper prior to cession by treaty); Downes v. Bidwell, 182 U.S. 244, 278-79 (1901) (concluding that because territories are not constitutional equivalents to states, they are subject to greater congressional control); Huus v. New York & Porto [sic] Rico S.S. Co., 182 U.S. 392, 397 (1901) (holding that steamship trade between New York and Puerto Rico came under U.S. trade laws); The Diamond Rings v. United States, 183 U.S. 176, 181-82 (1901) (construing broadly the Territorial Clause of the Constitution and refusing to limit Congress's legislative power over the American territories); Dorr v. United States, 195 U.S. 138, 148 (1904) (holding that residents of unincorporated territories are guaranteed only rights that are fundamental); see also RAYMOND CARR, PUERTO RICO: A COLONIAL EXPERIMENT 53 (1984); González, supra note 69, at 318-30; Marybeth Herald, Does the Constitution Follow the Flag into United States Territories or Can It Be Separately Purchased and Sold?, 22 HASTINGS CONST. L.Q. 707, 714 (1995) (stating that the Supreme Court decided in the Insular Cases that not all constitutional provisions need apply to unincorporated territories); Robert A. Katz, The Jurisprudence of Legitimacy: Applying the Constitution to U.S. Territories, 59 U. CHI. L. REV. 779, 795 (1992); Rafael Perez-Bachs, Applicability of the United States Constitution and Federal Laws to the Commonwealth of Puerto Rico, 110 F.R.D. 485, 485-86 (1986) (stating that the influence of the Insular Cases on Territorial Clause jurisprudence did not end at the turn of the century).
75 See Dorr, 195 U.S. at 146; Downes, 182 U.S. at 289 (White, J., concurring); see also Balzac v. Porto [sic] Rico, 258 U.S. 298, 312-13 (1922).
76 These are territories for which Congress manifested no intent to grant statehood status. See Herald, supra note 74, at 714.
77 In Downes, the Court noted, "We suggest, without intending to decide, that there may be a distinction between certain natural rights, enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights, which are peculiar to our own system of jurisprudence." Downes, 182 U.S. at 282.
78 195 U.S. 138 (1904).
79 Id. at 144 (quoting Hawaii v. Mankichi, 190 U.S. 197, 217-18 (1903)).
80 See Torres v. Puerto Rico, 442 U.S. 465, 474 (1979) (holding that the Fourth Amendment applies to Puerto Rico and that a Puerto Rico statute authorizing the police to search the luggage of a person arriving in Puerto Rico from the United States was unconstitutional).
81 See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 668 n.5 (1974) (stating that constitutional due process applies to Puerto Rico); Examining Bd. of Eng'rs, Architects, and Surveyors v. Flores de Otero, 426 U.S. 572, 601 (1976) (stating that equal protection applies to Puerto Rico).
82 See Balzac v. Porto [sic] Rico, 258 U.S. 298, 314 (1922) (holding that a prosecution for libel was not a violation of the First Amendment and that a right to a jury trial is not a fundamental right as applied to unincorporated territories).
83 See Califano v. Torres, 435 U.S. 1, 4 n.6 (1978) (stating that there is a virtually unqualified constitutional right to travel between Puerto Rico and the 50 states of the Union).
84 258 U.S. 298 (1922).
85 See id. at 304.
86 234 U.S. 91 (1914).
87 See id. at 98; see also Porto [sic] Rico v. Muratti, 245 U.S. 639, 639 (1918) (holding that the right to a grand jury indictment is inapplicable to the residents of Puerto Rico).
88 221 U.S. 325 (1911).
89 See id. at 331-32 (Philippine Islands).
90 See Dorr v. United States, 195 U.S. 138, 144-46 (1904). Not all of the Justices during this period endorsed the Court's legal fiction of fundamental rights. In Dorr, Justice Harlan courageously criticized the majority's holding that the right to trial by jury was not fundamental. He wrote:
[G]uaranties for the protection of life, liberty, and property, as embodied in the Constitution, are for the benefit of all, of whatever race or nativity, in the States composing the Union, or in any territory, however acquired, over the inhabitants of which the Government of the United States may exercise the powers conferred upon it by the Constitution.