University of Notre Dame

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

April 15, 2024

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

Micah Allred*

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 Western 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 statehood is but one way to do so.

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© 2024 Micah Allred.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

*J.D., Notre Dame Law School, 2022; B.A., Whitworth University, 2017.  I am grateful for the feedback on this Article from many colleagues, friends, and family, including Chad Allred, Nicole Garnett, Bruce Huber, Michael Bradley, Collin Berger, Shane Coughlin, Teresita Rios, Steven Schlesinger, and Owen Toepfer.  I am also thankful to Anne Bennett Osteen, Sachit Shrivastav, and the other editors of the Notre Dame Law Review Reflection.  All errors are my own.