"Separate and Unequal"
In 1896, a nearly-unanimous Supreme Court’s notorious verdict in Plessey v. Ferguson [163 U.S. 537] had the effect of both validating and rationalizing the practice of undermining the civil rights achievements of the reconstruction era. The high tribunal determined that state-mandated racial segregation was comparable with the constitutional doctrine before the law. Associate Justice Henry Billings Brown, writing for the majority declared:
We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
This echoed and ratified the thinking and rationale used in the no-less notorious Dred Scott v. Sandford [60 U.S. 393]. In essence, African Americans had no rights that white people –from lowest in status to highest – needed to respect.
The half-century reign of legally sanctioned “separate but equal” treatment for blacks owes its origin to Plessey v. Ferguson. And in that context it is not to be overlooked that the same tribunal (chief Justice of the United States Melville Fuller presided over the supreme court from 1888 to 1910) would apply similarly bigoted LOGIC to endorse the “separate AND unequal” doctrine that has been applied – for more than a century now - to the residents of U.S. Territories acquired after the Spanish-American War. In other words, the judicial mindset that was employed to countenance discrimination against African Americans was soon to be directed against the prospective electoral empowerment of citizens dwelling in new American territories.
The majority opinion made in the Dread Scott case uses of this argument to deny Territories full application of the U.S. Constitution. To further ground its decision on some constitutional basis, it created the new doctrine of “unincorporated” versus “incorporated” U.S. Territories. The Supreme Court stated, without so much as a single line in the Constitution for support, that the Constitution made a distinction between “unincorporated” Territories, which would encompass Territories that the U.S. did not want or foresee incorporating into the Union and “incorporated” Territories, which it did foresee or want to eventually incorporate into the Union. Because the Treaty of Paris did not state whether Puerto Rico would become part of the United States, the Supreme Court then concluded that Puerto Rico was an “unincorporated” U.S. Territory and, as such, did not enjoy the protection of full constitutional rights.
In one stroke of judicial activism, the U.S. Supreme Court had read into the Constitution a distinction nowhere to be found or even to be intimated by the most liberal reading of the Constitution: that U.S. territories and U.S. citizens residing in Territories could be treated as less than U.S. citizens or, like the “human property” of the infamous Dredd Scott case, if the Supreme Court deemed a Territory to be unincorporated.
The U.S. Supreme Court had validated the transition of the U.S. from a Republic to an Empire and subjected U.S. citizens on U.S. soil to second class status.
The legacy of these cases is over 103 years of second class citizenship for U.S. citizens in Puerto Rico and Guam. The doctrine of “unincorporated territory,” referred to by Judge Torruella of the U.S. Court of Appeals for the First Circuit as the doctrine of “separate and unequal” is wrong and must be overturned.
For more discussion please see “Unfinished Business of American Democracy” by Dr. Pedro Rosselló.