“They say I am not an American…”: The Noncitizen National and the Law of American Empire

by Christina Duffy Burnett

[Professor Christina Duffy Burnett is Associate Professor of Law, Columbia University]

My article in the latest issue of the Virginia Journal of International Law forms part of a larger project in which my goal is to tell a different kind of constitutional history of empire. Rather than focus on the question that has long occupied constitutional historians of U.S. imperialism—whether the Constitution “follows the flag”—I look beyond the text, and beyond the United States, in order to examine the interaction among different constitutional traditions in the context of empire in the Americas—U.S., Spanish, Cuban, Puerto Rican. In the process, I hope to enrich constitutional history in general (as well as the history of imperialism) by bringing to bear the intellectual traditions and legal perspectives of the inhabitants of the colonial periphery.

In this particular contribution to that project, I tell the story (or stories, really) behind the 1904 Supreme Court case Gonzales v. Williams. The decision in Gonzales came down several years after the United States annexed Puerto Rico and the Philippines at the end of the war with Spain in 1898. Departing from its usual practice with respect to previous territories, Congress declined to offer U.S. citizenship to the native inhabitants of these new territories. But it did not treat them as foreigners, either. Instead, Congress invented a new status for them: they became “citizens of Porto Rico” and “citizens of the Philippines.” No one knew what these sui generis labels meant: were these people implicitly citizens of the United States? Were they aliens? It seemed like they were neither, but didn’t they have to be one or the other?

Before addressing these questions, the Supreme Court dealt with the status of the territories themselves: it decided that they were neither “foreign” nor “domestic”: instead, they were “foreign to the United States in a domestic sense,” or as they later came to be known, “unincorporated territories” (because they had been annexed, but not “incorporated” into the United States). But eventually, the question citizenship found its way to the Court too, in a dispute involving a Puerto Rican woman named Isabel González. González, who was pregnant at the time of the incident giving rise to her litigation, traveled to New York from Puerto Rico in August of 1903. She was detained at Ellis Island, where immigration officials denied her entry on the ground that she was an alien immigrant “likely to become a public charge.” But González soon found powerful allies, including the prominent international lawyer Frederic R. Coudert, Jr., who took her case to the Supreme Court, and won—sort of.

The Court held that, under the immigration laws in force at the time, González was not an alien, and therefore could not be denied entry into New York. At the same time, however, the Court stopped short of declaring that she was a U.S. citizen, declining to the reach the constitutional question altogether. As a result, even after the Court took up the question of the citizenship status of the inhabitants of the new island territories, their situation remained confusing, ambiguous, and contested. Neither citizens nor aliens, they came to be known as something in between: “noncitizen nationals.”

The story of González herself is one of the stories behind the case. Very little is known about the details of her life, but she did end up staying in New York and marrying the man we understand to be the father of her baby, with whom (as best the record shows) she had come to be reunited. Another story behind the case, about which we know more, is that of Federico Degetau y González (no relation to Isabel). Degetau too was Puerto Rican, but he had encountered no difficulty in moving to the mainland: he traveled to Washington, D.C., as Puerto Rico’s first “Resident Commissioner,” or nonvoting representative. Although he was generally welcomed there and treated in many ways as if he were a citizen, he nevertheless dedicated himself to the struggle to gain U.S. citizenship, not only for himself but for all Puerto Ricans.

Degetau was a lawyer, politician, writer, and statesman with a long history of struggling for equality for Puerto Ricans. He had been one of the leaders of the “autonomist” movement in the nineteenth century, a movement dedicated to obtaining greater self-government for Puerto Rico while it was still a Spanish colony. After the United States took sovereignty over the island, Degetau became an advocate of statehood, equal rights, and full citizenship for Puerto Rico and its people. One of his many contributions to this struggle was an amicus brief he filed in González’s case.

In his brief, Degetau drew on his knowledge of Spanish history to make arguments to the Court that they were unlikely to hear from the other lawyers (whether González’s lawyer Coudert or the Solicitor General, Henry M. Hoyt). Degetau pointed out to the Court that by denying U.S. citizenship to the native inhabitants of Puerto Rico, the United States had perpetuated a form of discrimination that Puerto Ricans had suffered under Spain: geographic discrimination, under which Spaniards born on the Iberian Peninsula had rights that Spaniards born in Puerto Rico did not. With this argument, Degetau hoped to shame the Court into rectifying the unacceptable situation in which Puerto Ricans found themselves—living on U.S. territory, subject to U.S. sovereignty, but denied U.S. citizenship and the rights it implies—by comparing U.S. imperial policy with the imperial policy of Spain, which after all was supposed to be the less “enlightened” empire. But as we have seen, the Court was not persuaded: it agreed that Puerto Ricans were not aliens, but it did not conclude that they were citizens.

The legal designation that emerged out of all of this—that of the “noncitizen national”—was the product of constitutional improvisation in the face of imperial exigency. Once embarked on an imperialist quest, the United States needed some way to annex territory without necessarily expanding the ranks of U.S. citizens (or promising statehood to annexed territory). Congress obliged by inventing a novel membership category—“citizen of” such-and-such annexed territory—and the Court followed suit by declaring these territories “not incorporated,” and by allowing the liminal citizenship status of their native inhabitants to persist. In doing so, the United States failed to live up to its promise to bring the “blessings of enlightened civilization” (as General Nelson Miles put it upon landing on Puerto Rico’s shores in 1898) to the new territories. Instead, as Degetau made clear to the Court, the United States perpetuated the geographical discrimination devised by the Spanish empire, adopting it into U.S. law.

For the affected colonial subjects, this turn of events proved to be a crushing disappointment. Indeed, even the eventual conferral of U.S. citizenship on Puerto Ricans in 1917 (three years after Degetau died) would prove to be a mixed blessing, for it was done by Congress without consulting them, and it did not change Puerto Rico’s status as an “unincorporated territory.”

As a legal historian (and a Puerto Rican), I seek to contribute to the continued struggle for equality for Puerto Rico by recovering the struggles of my compatriots in the past, and remembering that their experiences, too, form part of the constitutional history of American empire. These have been my goals in telling the story of the Gonzales case through the experience of Isabel González and the arguments of Federico Degetau.

http://opiniojuris.org/2008/07/01/they-say-i-am-not-an-american-the-noncitizen-national-and-the-law-of-american-empire/

3 Responses

  1. Christina,

    This is a fascinating article and a great subject. I spent time reading your article and I have to say that I love the idea of presenting international law through narrative and story.

    I have two questions. First, you describe yourself as a “historian of U.S. imperialism” and obviously the story of Puerto Rico fits well within that discussion. But can you shed light on the historical notion of the United States as an imperialist country? Do you consider us to still be imperialist? If not, when did we cease to be imperialist? I certainly don’t think the United States has any aspirations of further territorial expansion. Therefore is it accurate to say the United States was an imperialist nation but no longer is one?

    Second, I would be curious whether individuals who live in parts of the United States that were subject to territorial annexation and eventual statehood would describe the United States as imperialist. Do citizens in the western states or Hawaii think of their country as imperialist in the same way that Puerto Ricans do? I raise this question because perhaps the real issue is not the imperialist history of the United States but rather the failure of the United States to properly integrate Puerto Rico after it did become a United States territory. Perhaps the real problem is not territorial expansion but rather unconsummated statehood?

    Roger Alford

  2. Some Hawaiians do think of the United States as an imperialist country as indicated here, here, and here.

  3. Dear Professor Alford,

    Thank you for your kind comments about my article, and for your excellent questions. I confess I sometimes wriggle my way out of answering these by describing myself as an historian of U.S. “expansion and empire.” But seriously, I welcome the opportunity to engage on this issue (which I do not consider an easy one!).

    Obviously the words “empire” and “imperialism” are very controversial. I use the term “imperialism” without hesitation when I write about the events of 1898, because in that context, the term is an “actor’s category,” that is, a term used by people at the time in the sources I’m writing about. And basically what they meant by it was the governance or exercise of control over people and territory that were not considered fully part of the United States, and were not intended to be. I always like to point to the passage by Frederic Coudert (which I quote in the article at pp.675-676) in which he distinguishes between “expansion” and “imperialism.” That passage (and many, many other contemporary sources) shows that people were grappling with this issue then, and that they thought that what the United States was up to at the time could properly be described as “imperialist.” That passage is also an excellent reminder of how careful one needs to be with controversial terms, for as you can see, Coudert thought that imperialism was the righteous path! He didn’t think the U.S. needed to apologize for it; in fact, he thought the U.S. needed to apologize for “expansion,” which as he astutely noticed, had involved a great deal of extermination.

    With respect to the United States today, one the one hand, I tend to refrain from using the term “imperialist,” because the term in many ways has been taken hostage by people who use it in such a morally charged manner that it has almost ceased to be useful; under the circumstances it can obscure more than it clarifies. On the other hand, there’s no question the United States still has colonies. Isn’t that what defines an “empire”? Puerto Rico is a U.S. colony right now: four million U.S. citizens subject to U.S. sovereignty and federal laws but without any voting representation in the federal government. (The claim that Puerto Ricans want it this way is a myth, as I’ve written elsewhere.) I do certainly agree with you that the reason Puerto Rico and other similarly situated territories have come to look different than the states to most people is because of differential treatment (not only unconsummated statehood, but unconsummated independence). In that sense, the issue is not expansion per se. But historians increasingly argue with respect to U.S. history that it’s imperialism “all the way down.” What term should one use to describe Indian removal? Or the war with Mexico in 1846-48, which led to the conquest of half of Mexico’s territory? And so the discussion continues…

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