An Originalist Approach to Puerto Rico: Arguments Against the Status Quo

Authors

Micah Allred

Document Type

Article

Abstract

Few originalists have grappled with a fundamental question about Puerto Rico: whether the Constitution permits the United States to hold the island indefinitely as nonstate territory. There are reasons to doubt that it does. The main purpose of the Constitution’s territorial provisions was to allow Congress to transition the then West-ern Territory into states. And, as a structural matter, Congress’s direct authority over Puerto Ricans conflicts with important constitutional principles such as federalism. But for originalists, arguments from purpose and structure are helpful only insofar as they elucidate the original meaning of the Constitution’s text. This Article lays out two possible arguments—one from the Territories Clause and one from the Admissions Clause—for why the United States’ ongoing possession of Puerto Rico conflicts with that meaning. Of the two, the Admissions Clause argument is most compelling. If it is correct, then Puerto Rico’s current status must change; granting Puerto Rico state-hood is but one way to do so.

Recommended Citation

Micah Allred, An Originalist Approach to Puerto Rico: Arguments Against the Status Quo, 99 Notre Dame L. Rev. Reflection 151 (2024).
Available at: https://scholarship.law.nd.edu/ndlr_online/vol99/iss3/2