Statutory Citizenship and Restorative Nationality: Puerto Rico and the Constitutional Void of Territorial Belonging

I. Introduction

Under the Jones–Shafroth Act of 1917 (henceforth “Jones Act”), Puerto Ricans were collectively naturalized as U.S. citizens, yet that status remains statutory and potentially retractable [1]. As legal historian Sam Erman, whose work Almost Citizens traces the constitutional consequences of U.S. imperial expansion, has argued, the Jones Act created “almost citizens,” individuals formally recognized but constitutionally excluded from full membership within the polity [2]. Erman’s claim captures the core paradox of Puerto Rican citizenship. His argument extends the legal title of citizenship while withholding the constitutional substance of belonging. This Article builds on, yet departs from, Erman’s analysis to argue that this condition of “almost citizenship” has endured as a continuing feature of U.S. territorial governance. This fragile citizenship has produced what scholars describe as second-class citizenship, that is a political identity constrained by geography and status, sustained by a constitutional framework that extends allegiance without guaranteeing the full rights, representation, and protections associated with equal membership in the Union [3]. Thus, because Puerto Rican citizenship was created by congressional statute rather than by the Constitution itself, it derives its force from legislative will, not constitutional entitlement, making its permanence a matter of political discretion rather than constitutional right.

Spain’s Law 20/2022 of Democratic Memory, enacted in October 2022, is a comprehensive statute that revises the nation’s historical narrative of the Civil War, Francoist dictatorship, and the loss of citizenship suffered by exiles and their descendants [4]. The law authorizes descendants of Spaniards forced into exile or stripped of nationality between 1936 and 1978 to reclaim Spanish citizenship without residency or language requirements, extending earlier reparative measures from the 2007 Law of Historical Memory. Its stated aim is to recognize victims of persecution, restore their legal rights, and integrate historical justice into Spain’s constitutional order. The contrast between the two frameworks — one that grants citizenship without constitutional incorporation and another that uses nationality as symbolic restitution — places Puerto Ricans in a legal position where two former empires, Spain and the U.S., simultaneously define and deny their belonging. This Article argues that the United States must either constitutionalize Puerto Rican citizenship, affirming its permanence and equality, or acknowledge its colonial contingency and permit self-determination. In doing so, it raises a broader question about the meaning of American citizenship itself: can a constitutional democracy sustain a form of membership that remains legislatively conditional?

II. The U.S. Regime of Statutory Citizenship and Territorial Subordination

A. The Jones–Shafroth Act of 1917

Enacted on March 2, 1917, the Jones Act granted collective U.S. citizenship to the residents of Puerto Rico [5]. In effect, the Act allowed the entire population to be incorporated en masse into the body politic through a single congressional act rather than being naturalized individually. The grant was motivated less by a commitment to equality than by wartime and administrative convenience: Congress sought to secure loyalty and facilitate military conscription during World War I while maintaining the island’s territorial subordination. Yet this collective naturalization did not carry the full constitutional rights of incorporation; it conferred citizenship in name while preserving Puerto Rico’s status as an unincorporated territory under congressional control, leaving it under the plenary authority — that is, the full and exclusive constitutional power — granted by Article IV’s Territorial Clause [6]. Citizenship, therefore, was not conferred by the Constitution but created by statute, meaning it came from an act of Congress rather than from the Constitution itself and thus lacked the permanence and protections that constitutional citizenship guarantees. Scholar of law José Julián Álvarez González (LL.M, Yale University) contends that Puerto Rico’s constitutional status remains colonial because the U.S. Congress retains plenary power over the island and Puerto Rican citizenship has no constitutional basis beyond statute [7]. This Article concurs with Álvarez González’s characterization: the structure of congressional control and the absence of constitutional incorporation sustain a colonial relationship under a modern constitutional guise. Puerto Rico’s predicament is therefore not exceptional but continuous with earlier moments of American territorial expansion [8].

Congress’s authority over U.S. territories stems from Property Clause, which states that: “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States [9].” This clause implies Congress has plenary power, or near-total legislative control, over territories outside the states. The Supreme Court first defined that power in Downes v. Bidwell (1901) (“Downes”), a case challenging tariffs on goods shipped from Puerto Rico to New York [10]. The Court held that Puerto Rico “belonged to” but was not “part of” the United States, creating the category of unincorporated territories in which the Constitution applies only at Congress’s discretion. Downes thus confirmed that the Court views territorial rights as political choices rather than constitutional guarantees. Applying this reasoning to Puerto Rico reveals the enduring flaw of U.S. territorial law: the Constitution allows Congress to govern citizens without fully including them, transforming Puerto Rican citizenship into a function of legislative will rather than constitutional right.

B. The Insular Cases and the “Foreign in a Domestic Sense” Doctrine

Between 1901 and 1922, the Supreme Court developed a body of law known as the Insular Cases, including Downes and Balzac v. Porto Rico (1922) (“Balzac”) [11]. Where Downes held that territories “belonged to” but were not fully “part of” the United States, Balzac addressed whether Puerto Rican residents were entitled to the Sixth Amendment right to trial by jury. The case arose when Jesús M. Balzac, editor of a newspaper in Arecibo, was convicted of criminal libel without a jury trial and argued that as a U.S. citizen, he was constitutionally entitled to one. Along unanimous lines, the Court held that the Sixth Amendment did not automatically apply to unincorporated territories, reasoning that Puerto Rico’s statutory grant of citizenship under the Jones Act did not alter its territorial status. Reconciling Balzac with the precedent set in Downes, it becomes clear that the Court viewed incorporation — and therefore constitutional equality — not as a legal right of citizens but as a matter of congressional authority. This reasoning entrenched the doctrine that citizenship in the territories is conditional and incomplete, subject to Congress’s discretion rather than constitutional command [12]. These cases established that certain territories were “unincorporated,” meaning they fell under U.S. sovereignty but lay outside the full reach of the Constitution. The Court declared that Puerto Rico was “foreign in a domestic sense,” a formulation that appears self-contradictory but in practice reflects the Court’s attempt to legitimize a system in which the island is governed as part of the United States while denied the full constitutional protections of membership [13]. Under this doctrine, Congress may govern territories indefinitely without extending full constitutional protections — a dangerous precedent that allows democratic principles to yield to political convenience. Puerto Ricans, although U.S. citizens, thus live under a constitutional arrangement that withholds equal protection and representation because their rights depend on congressional discretion rather than constitutional guarantee. The U.S. Commission on Civil Rights confirmed that the Insular Cases entrenched a constitutional framework of inequality by allowing Congress to govern Puerto Ricans as citizens in name but subjects in law and thereby institutionalize their second-class citizenship [14].

C. The Constitutional Fragility of Territorial Citizenship

Because the Jones Act confers citizenship by statute, its permanence is not constitutionally secured. In Tuaua v. United States (D.C. Cir. 2015), the Court held that persons born in American Samoa were not citizens under the Fourteenth Amendment, finding that the Citizenship Clause does not automatically extend to unincorporated territories [15]. The Tenth Circuit reached the same conclusion in Fitisemanu v. United States (10th Cir. 2021), reaffirming that territorial citizenship exists only when Congress grants it by statute [16]. Though distinct in reasoning, both cases confirm that Congress — not the Constitution — defines the citizenship of territorial residents. This judicial deference is not neutral; it sustains a constitutional hierarchy in which the rights of millions hinge on legislative will, exposing how American courts have normalized inequality within their own constitutional framework.

As Erman and Venator-Santiago have correctly argued, the United States used citizenship in the early twentieth century as a tool of imperial control, extending legal status without constitutional equality [17]. Erman traces how Congress and the courts crafted Puerto Rican citizenship to consolidate U.S. authority, while Venator-Santiago situates it within broader territorial practices in places like the Philippines and Guam. The continuing citation of the Insular Cases confirms that this logic endures, preserving a constitutional inequality where belonging remains conditional. Puerto Rican citizenship embodies second-class citizenship: formal allegiance without constitutional belonging [18].

III. Spain’s Doctrine of Restorative Nationality and Jus Memoriae

A. Evolution of Spanish Nationality Law

Spain’s Civil Code (arts. 17–26) defines nationality primarily by jus sanguinis, or by “right of blood” [19]. However, over the past century, Spain has expanded access for former colonies and their descendants [20]. Through bilateral treaties and preferential naturalization — formal agreements between Spain and other sovereign states and a process that shortens residency or procedural requirements for certain applicants, respectively — Spain recognizes shared linguistic and cultural heritage as grounds for expedited citizenship [21].

B. The Law of Historical Memory (2007) and the Law of Democratic Memory (2022)

The Law 52/2007 of Historical Memory (“Ley 52/2007”) acknowledged victims of persecution during the Civil War and Franco dictatorship, declaring Francoist courts and sentences illegitimate [22]. It was legally necessary because Spain’s 1978 Constitution restored democracy without redressing those injustices, leaving victims unrecognized. The Law 20/2022 of Democratic Memory (“Ley 20/2022”) expanded these rights, reframing citizenship as legal reparation and obligating the State to investigate abuses [23]. Article 1(1) states its purpose “to recognize and broaden rights to those who suffered persecution or violence … and to promote the moral repair and recovery of democratic memory,” while Article 33 grants nationality to descendants of exiles without residency or renunciation requirements [24]. Together, these laws transform symbolic acknowledgment into enforceable rights through restitution of nationality and annulment of Francoist convictions. It recognizes descendants of exiles — those who, under Spanish law, were forced to leave Spain or lost nationality for political or ideological reasons between 1936 and 1978 — as well as children of women who lost citizenship under the 1954 Civil Code provision that automatically stripped nationality from women who married foreigners. It also covers others whose belonging was historically denied, such as descendants of Franco-era refugees who resettled in Latin America and were excluded from restitution until the 2022 reform. Together, these statutes articulate an idea of citizenship as acknowledgment of historical injustice. Nationality, as a concept, becomes less administrative and more similar to an effort towards restorative justice.

C. The Postcolonial Turn in Spanish Nationality Policy

Spain now offers preferential access to nationality for citizens of Latin American republics and former colonies, recognizing shared linguistic and historical ties through jus memoriae. Spain’s approach demonstrates that citizenship law can function as a structured form of acknowledgment and repair. The United States should consider a comparable legal mechanism — one that affirms Puerto Rican citizenship as a permanent constitutional status or provides a defined process for political self-determination — thereby aligning its territorial policies with its stated democratic and constitutional commitments.

IV. Dual Sovereignty and Dual Denial: Puerto Rico Between Empires

A. Competing Jurisdictions of Belonging

Puerto Ricans live under overlapping legal frameworks that define citizenship differently. Under U.S. law, they are statutory citizens who lack full constitutional rights of representation and equal protection. Under Spanish law, they may be eligible for nationality through jus memoriae, yet this provides only symbolic recognition rather than political sovereignty. Together, these frameworks reveal the inconsistency in how American citizenship functions for Puerto Ricans, which does not involve any form of constitutional guarantee.
The United States should refine Puerto Rican citizenship to eliminate this disparity. Congress could amend the Jones–Shafroth Act or enact new legislation affirming that citizenship conferred to Puerto Ricans carries the same constitutional permanence and scope as citizenship under the Fourteenth Amendment. Spain’s Law 20/2022 of Democratic Memory demonstrates that nationality law can address historical exclusion through statutory reform. A comparable approach in the U.S. would clarify the legal status of Puerto Ricans, strengthen constitutional coherence, and ensure that their citizenship is equal in both substance and protection.

B. The Territorial Clause as a Constitutional Dead End

The Property Clause empowers Congress to “make all needful rules and regulations” for territories, but offers no independent pathway for territorial citizenship. The Court’s decision in Rasmussen v. United States (1905), which held that Alaska was an “incorporated territory” and thus entitled to jury trials under the Constitution, shows that incorporation, and full citizenship, turns on congressional intent [25]. Puerto Rico’s continued designation as an “unincorporated” territory is therefore a political decision, likely driven by Congress’s reluctance to assume the full fiscal and constitutional obligations of statehood — such as equal federal funding, voting representation, and taxation — which would eliminate the strategic flexibility and economic advantages the current territorial framework affords the federal government. The fact that the Supreme Court has left Congress in full authority of extending constitutional rights to territories underscores the judiciary’s complicity in preserving a system where equality depends on political discretion rather than constitutional guarantee. In Harris v. Rosario (1980), the Supreme Court upheld Congress’s power to treat Puerto Rico differently from the states when distributing federal benefits, allowing reduced welfare payments under the Territorial Clause [26]. This ruling entrenches a two-tier system of citizenship in which Puerto Ricans contribute to the nation but receive diminished support, perpetuating economic dependency and structural inequality within the very framework meant to protect them [27].

The contrast between Alaska’s incorporation and Puerto Rico’s exclusion underscores how the doctrine of unincorporated territories functions as a constitutional dead end: Alaska was explicitly incorporated through congressional intent and thus gained full constitutional protections and eventual statehood, while Puerto Rico remains unincorporated, leaving its citizens permanently outside the Constitution’s full guarantees. Without incorporation or independence, Puerto Rican citizenship remains a managed dependency by the Congress.

This framework ensures that Puerto Rico can never advance toward full membership without congressional permission. Congress has no incentive to disturb a status quo that consolidates its own power; Puerto Rico’s territorial status allows lawmakers to exercise federal authority over its economy and governance without extending equal representation or bearing the fiscal and political costs that accompanied Alaska’s path to statehood.

The constitutional principle of equal protection must drive the United States toward an actionable solution: either full incorporation or independence. By denying Puerto Ricans the same constitutional rights enjoyed by other citizens, Congress undermines the Fourteenth Amendment’s guarantee of equality before the law. This disparity fractures the idea of American citizenship by creating two categories of citizens — those fully protected by the Constitution and those governed by it but excluded from its guarantees — and threatens the legitimacy of constitutional equality itself.

V. Citizenship, Sovereignty, and the Demand for Constitutional Belonging

A. Citizenship as Reciprocal Recognition

Citizenship entails reciprocal recognition between the individual and the state. In Puerto Rico, this reciprocity collapses on the state side. Puerto Rican residents remain subject to the obligations of U.S. citizenship, such as federal law and military service, yet they are denied full political participation, including voting representation in Congress and the right to vote in presidential elections [28]. This exclusion, upheld under the territorial framework, contradicts the representative principles embedded in Article I and the Seventeenth Amendment, which tie legislative authority to the consent of the governed [29] [30]. As the U.S. Commission on Civil Rights observed, this imbalance leaves Puerto Ricans governed by laws they cannot influence, reducing their citizenship to an administrative status rather than a constitutional guarantee of political equality [31].

B. Two Paths to Coherence

Congress could formally recognize Puerto Rican citizenship as deriving from the Constitution rather than from statute. This would likely take the form of amending the Jones–Shafroth Act or passing legislation that expressly incorporates Puerto Rico under the Fourteenth Amendment; however, the Supreme Court could also overturn the Insular Cases and hold that constitutional citizenship extends to all U.S. territories for a similar effect. Both branches possess the authority to act, though congressional reform would rely on legislative will, while judicial recognition would require constitutional interpretation. Achieving constitutionalization would secure equal protection, due process, and political representation for Puerto Ricans. Yet this would also eliminate a system in which millions of citizens remain governed without the full rights guaranteed by the Constitution.

The second path to reconciliation is self-determination. The United States can acknowledge the territorial status it maintains and establish a binding process through which Puerto Ricans decide their political future — statehood, independence, or free association. Without a genuine mechanism for self-determination enacted by Congress and implemented by legislation, Puerto Rico remains confined to a structure that denies both full citizenship rights and sovereign autonomy. The island has held seven referendums between 1967 and 2024 on its status [32]. These referenda consistently showed preference for statehood or for a change in status, yet Congress has never adopted a binding process to act on their results. The legal deadlock has persisted because Congress lacks the incentive to relinquish its plenary authority under the Territorial Clause, even as Puerto Ricans participate in symbolic votes that produce no binding outcome. Therefore, the U.S. should honour the will expressed in these plebiscites by legislating a clear path: one that sets the terms of a binding referendum, mandates consideration of the result, and provides legal consequences. Such legislation would convert recurring status consultations from symbolic gestures into actionable law, aligning political process with constitutional accountability.

VI. Conclusion

Puerto Rico’s status exposes a fundamental defect in American constitutional law: the coexistence of citizenship and inequality within the same legal system. The Insular Cases and their progeny have allowed Congress to treat the island as both part of and apart from the United States, preserving a doctrine that subordinates constitutional rights to legislative discretion. The result is a form of citizenship that is national in name but territorial in protection: permanent in allegiance, yet partial in rights.

For more than a century, the Supreme Court and Congress have deferred to one another while leaving Puerto Rico trapped between inclusion and autonomy. This mutual inaction has created a durable constitutional inconsistency: millions of U.S. citizens remain governed without full representation, excluded from equal protection, and dependent on congressional will for the most basic political rights. Such an arrangement is incompatible with the Fourteenth Amendment’s guarantee of equality and the foundational principle that government derives its legitimacy from the consent of the governed.

To resolve this constitutional impasse, the United States must act decisively. Congress can eliminate statutory citizenship’s fragility by incorporating Puerto Rico under the Constitution, or it can legislate a binding process of self-determination with legal effect. Either step would replace political discretion with constitutional clarity and restore coherence to the nation’s system of citizenship. Until this occurs, Puerto Rican citizenship will remain a reminder that American democracy has yet to extend its full constitutional promise to all those who live under its flag.

Footnotes

[1] Jones–Shafroth Act of 1917, Pub. L. No. 64–368, 39 Stat. 951 (1917).

[2] Ibid.

[3] Álvarez González, José Julián, “Derecho constitucional de Puerto Rico y relaciones constitucionales con los Estados Unidos: casos y materiales,” Bogotá: Editorial Temis (2009);
Charles R. Venator-Santiago, “The Legal Construction of U.S. Citizenship for Puerto Ricans, 1898–1917,” Latino Studies 4, no. 3 (2006): 248–275; Downes v. Bidwell, 182 U.S. 244 (1901).

[4] Patricia Casaburi, “Spain’s Citizenship by Democratic Memory Law,” Global Citizen Solutions, October 24, 2025, https://www.globalcitizensolutions.com/spain-citizenship-by-democratic-memory-law/.

[5] Jones–Shafroth Act of 1917, Pub. L. No. 64–368, 39 Stat. 951 (1917).

[6] U.S. Const. art. IV, § 3, cl. 2 (“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…”). The “Territorial Clause” gives Congress complete legislative control over U.S. territories. Courts have interpreted this plenary power to mean that Congress may determine a territory’s political organization, the application of federal laws and constitutional provisions within it, and the civil and political rights of its residents, so long as those actions are not otherwise prohibited by the Constitution. See Downes v. Bidwell, 182 U.S. 244 (1901); Balzac v. Porto Rico, 258 U.S. 298 (1922).

[7] Álvarez González, “Derecho constitucional.”

[8] The United States has, in fact, exercised similar forms of authority over other territories acquired through war or annexation—such as the Philippines, Guam, and American Samoa—each governed under the same “unincorporated” doctrine articulated in the Insular Cases*.* These arrangements allowed the United States to extend sovereignty without full constitutional inclusion, producing a pattern of governance that functionally mirrored colonial rule even as it rejected the label. Puerto Rico thus stands as the most enduring example of this imperial framework, its “unincorporated” status preserving the legal fiction that the empire can coexist with constitutional democracy.

[9] U.S. Const. art. IV, § 3, cl. 2 (“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…”).

[10] Downes v. Bidwell, 182 U.S. 244 (1901).

[11] Ibid.; Balzac v. Porto Rico, 258 U.S. 298 (1922); see also Christina Duffy Burnett and Burke Marshall, eds., Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (Durham, NC: Duke University Press, 2001).

[12] The Insular Cases include Downes v. Bidwell, 182 U.S. 244 (1901) (import duties; established “unincorporated” status); De Lima v. Bidwell, 182 U.S. 1 (1901) (customs authority after territorial acquisition); Dooley v. United States, 182 U.S. 222 (1901) (inter-island tariffs); Armstrong v. United States, 182 U.S. 243 (1901) (tariff enforcement); Huus v. New York & Porto Rico Steamship Co., 182 U.S. 392 (1901) (interstate commerce jurisdiction); Dorr v. United States, 195 U.S. 138 (1904) (trial by jury in the Philippines); and Balzac v. Porto Rico, 258 U.S. 298 (1922) (application of constitutional criminal-procedure rights). Collectively, these cases established the “unincorporated territory” doctrine, under which constitutional rights extend to the territories only when Congress so provides.

[13] Downes v. Bidwell, 182 U.S. 244 (1901).

[14] U.S. Commission on Civil Rights, The Insular Cases and the Doctrine of the Unincorporated Territory and Its Effects on the Civil Rights of the Residents of Puerto Rico, Washington, D.C.: U.S. Commission on Civil Rights, 2024, https://www.usccr.gov/reports/2024/insular-cases-and-doctrine-unincorporated-territory-and-its-effects-civil-rights.

[15] Tuaua v. United States, 788 F.3d 300 (D.C. Cir. 2015).
Fact: U.S. Const. amend. XIV, § 1 (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”).

[16] Fitisemanu v. United States, 1 F.4th 862 (10th Cir. 2021).

[17] Sam Erman, Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire. Cambridge: Cambridge University Press, 2018; Charles R. Venator-Santiago, “The Legal Construction of U.S. Citizenship for Puerto Ricans, 1898–1917.” Latino Studies 4, no. 3 (2006): 248–275.

[18] Downes v. Bidwell, 182 U.S. 244 (1901); Balzac v. Porto Rico, 258 U.S. 298 (1922); Tuaua v. United States, 788 F.3d 300 (D.C. Cir. 2015); Fitisemanu v. United States, 1 F.4th 862 (10th Cir. 2021).

[19] Spanish Civil Code, arts. 17–26.

[20] Galilea Abogados, “How to Obtain Spanish Nationality through the Law of Democratic Memory,” 2023, https://galilea-abogados.es/en/how-to-obtain-spanish-nationality-through-the-law-of-democratic-memory-we-explain-it-to-you/.

[21] For example, nationals of former Spanish colonies in Latin America, as well as citizens of Andorra, the Philippines, Equatorial Guinea, and Portugal, may apply for Spanish citizenship after only two years of legal residence rather than the standard ten, reflecting Spain’s recognition of a common Iberian and colonial heritage. See [19].

[22] Spain, Law 52/2007 of 26 December on the Recognition and Extension of Rights and the Establishment of Measures in Favor of Those Who Suffered Persecution or Violence During the Civil War and the Dictatorship (BOE No. 310, Dec. 27, 2007).

[23] Spain, Law 20/2022 of 19 October on Democratic Memory (BOE No. 252, Oct. 20, 2022).

[24] Spain. Law 20/2022 of 19 October on Democratic Memory (BOE No. 252, Oct. 20, 2022), arts. 1(1), 33.

[25] Rasmussen v. United States. 197 U.S. 516 (1905).

[26] Downes v. Bidwell, 182 U.S. 244 (1901).

[27] Harris v. Rosario, 446 U.S. 651 (1980).

[28] Romeu v. Cohen, 265 F.3d 118 (2d Cir. 2001) (affirming that territorial residents cannot vote for president because the Constitution restricts the Electoral College to the states).

[29] U.S. Const. art. I, § 2 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States…”).

[30] U.S. Const. amend. XVII (“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof…”).

[31] U.S. Commission on Civil Rights, The Insular Cases.

[32] Puerto Rico Report, “Puerto Rico’s Plebiscites,” November 13, 2024, https://puertoricoreport.com/puerto-ricos-plebiscites/.