The AFF’s focus on insular cases is a ruse for true judicial colonialism – ‘citizenship’ becomes ‘second-class’ and status manipulation is reconstructed.

As a matter of constitutional doctrine, Aurelius’s simplest lesson is that the harms attributable to territorial exceptionalism and unbounded federal power do not depend on the Insular Cases remaining good law. It indicates that even if the Court were to broadly overturn the sum of the Insular Cases and explicitly hold that the Constitution “applies” in full to the territories, there is little to stop it from reconstructing the current order within the bounds of the constitutional text. Whatever its symbolic or political value may be, the legal effect of enumer ation—of retethering Puerto Rico and other territories to the Constitution—will be determined entirely by how the Court reads that text as it applies to them.187 Aurelius warns of what will happen if that reading continues under a warped lens.

A. Status Manipulation: Preserving, Transforming, and Constructing Liminality

Aurelius teaches that “territorial exceptionalism” is not coterminous with any discrete status or doctrinal principle. As Sam Erman’s work illuminates, the essential mechanism of the territories’ subordinate and liminal condition has not been the Incorporation Doctrine per se.188 Rather, it has been the sum of legal ambiguities giving rise to a broader capacity for “status manipulation.”189 Erman’s term connotes something more than simple relegation to a fixed subordinate position. Instead, it functions by purposeful alteration of conditions held out as enduring.190

In Erman’s paradigmatic example, the advent of statutory-birthright U.S. citizenship in Puerto Rico tells a story of legal change with parallel dimensions.191 The first and more obvious one is the transformed formal status of these Americans on paper: from noncitizen national192 to “U.S. Citizen.” But a second, more imperceptible dimension is the extent to which the constitutional significance of citizenship in overseas territories was itself transformed during the first decades of the twentieth century. To accommodate overseas imperialism, the Supreme Court obscured the legal relationship between citizenship, voting, and territorial status in ways that have materially affected the legal meaning (and normative desirability) of U.S. citizenship for the territories in hindsight.193 For example, as recounted by Judge Juan Torruella, one of the early Insular Cases, Hawaii v. Mankichi, had suggested that a grant of U.S. citizenship was determinative evidence of a territory’s transformation from “unincorporated” to “incorporated” status—in other words, that extending U.S. citizenship to Puerto Rico would amount to a guarantee that Puerto Rico was destined for statehood.194 This understanding was short-lived.195

To accommodate empire, the law of U.S. citizenship bent to keep Americans in the territories in an ambiguous and exceptional status, even while bearing that title. Erman’s recent book on U.S. citizenship in Puerto Rico traces ably the theoretical and practical journey of a new vision of naturalization that would “placate Puerto Ricans and signal permanent U.S. rule over Puerto Rico without bringing Puerto Ricans new rights, greater self-government, or eventual statehood.”196 As Judge José A. Cabranes describes it, the version of citizenship eventually granted to Puerto Rico “was never intended to confer on the Puerto Ricans ‘any rights that the American people [did] not want them to have.’”197 To Cabranes, extending that version of citizenship further obscured the colonial relationship. The “very word ‘citizenship’ suggested equality of rights and privileges and full membership in the American political community” even as the legal effect of its extension was “the creation of a second-class citizenship . . . perpetuating the colonial status of Puerto Rico.”198 Critically, Puerto Rico’s U.S. citizenship, as American law understands it today, bears little in common with the visions of political membership that many of those who fought hardest for it originally had in mind. As summarized by Christina D. Ponsa-Kraus, early twentieth-century Puerto Rican political figures like Federico Degetau y González, Domingo Collazo, and Santiago Iglesias [e]ach brought to the struggle an understanding of the meaning and promise of citizenship that was tried, tested, and transformed by an unrelenting cycle of incremental gains and repeated setbacks in the face of federal resistance. By the time they succeeded, citizenship—the U.S. citizenship that the United States proved willing to grant Puerto Ricans in 1917—had become, as one of the island’s federally appointed governors put it, a “perfectly empty gif.”199

Thus, the term “status manipulation” exists “in deliberate tension with itself . . . combin[ing] apparent continuity and actual change to achieve subordination from the shadows. Status poses as immemorial and permanent despite always being constructed and reconstructed . . . .”200 Confronting status manipulation, then, requires looking beyond the operative ambiguities themselves— and towards their capacity for migration.201