“Dred Scott had a point there.” A statement of this sort is a good ticket to social ostracism. Dred Scott v. Sandford (1857) remains one of the Supreme Court’s most infamous and despised decisions. In it, Chief Justice Roger Taney argued the American founding saw black people as inferior to white people and that slaves were in bondage for their own benefit.
Taney’s opinion justly deserves the deluge of scorn it receives. It got the founding wrong. It got justice wrong. Worse, it helped rend the country temporarily in two. But one lesser-known element of that opinion would help the public frame the debate about the political status of Puerto Rico in relation to the rest of America.
Puerto Rico’s political status was most recently discussed by the U.S. Supreme Court as the justices heard oral arguments in United States v. Vaello-Madero. While living in New York, Jose Luis Vaello-Madero fell seriously ill and, unable to work, began receiving Supplemental Security Income. He later moved back to Puerto Rico, his place of birth, only to lose this income because residents of that island aren’t eligible for SSI benefits. Vaello-Madero claims the policy is unconstitutional because the kinds of distinctions made between Puerto Rico and other parts of the United States originated more than a century ago in racial discrimination.
Regardless of the underlying impetus, due to its status as an “unincorporated territory” within the U.S., Puerto Rico receives markedly different treatment than other parts of America in relation to legal rights and political participation.
Here is where Dred Scott may be, I dare say, of positive use. Taney argued the national government possessed the power to add territory to the U.S. for one purpose: to create additional states. He wrote that America possessed no power “to enlarge its territorial limits in any way, except by the admission of new States.”
Taney’s argument for territories as future states accords with certain principles underlying the Constitution. For so limiting the purpose of acquiring territory then precluded other, pernicious possibilities for those lands. In particular, it rejected imperialist temptations to establish a colonial empire.
An essential political principle we hold is the consent of the governed, itself resting on the claim that “all men are created equal.” Another is that government exists to protect the rights of the same persons. Territories on their way to statehood present, at worst, temporary issues for adhering to these principles. Perpetual colonies undermine these principles in a permanent and thus deeper fashion.
Puerto Rico presents a good case in point here. America acquired it in 1898 as a result of the Spanish-American War. After more than 120 years, it remains, effectively, a colony. Though the national government retains ultimate political authority over them, these Americans cannot vote in presidential elections or have voting members of Congress. That presents a problem for consent.
Many legal rights afforded to state or D.C. residents don’t extend to those living in Puerto Rico, despite their having been granted U.S. citizenship. That presents legitimate questions regarding the equal protection of rights under the law. Indeed, in all U.S. history, no territorial inhabitants were ever denied constitutional rights and liberties to the degree of those living in the territories ceded from Spain in 1898.
No matter how the Supreme Court rules, ultimately, the decision regarding its future rests with the political branches of the national government. Unfortunately, the debate about Puerto Rico’s status has become purely partisan, a question of whether its statehood would add to Democratic or Republican electoral prospects. Another option would give Puerto Rico independent status, making it a sovereign country that governs its own affairs.
Either way would be an improvement over the present circumstance. Either would better accord with American principles and more firmly reject even modest colonial pretensions.
Taney, in Dred Scott, did the devil’s work in his argument for slavery. But regarding territories, he makes this one good point. In those lands we wish to keep, we should not seek even the scent of empire but pursue the incorporation of states. Thus, in relation to Puerto Rico, we should give the devil his due.
Adam M. Carrington is an associate professor of politics at Hillsdale College.
