Colonial Constitutional Structures: The Judicial Imposition of Rights in Puerto Rico
摘要
This chapter criticizes the judicial imposition of rights in Puerto Rico and other U.S. territories. In the United States, any right considered “fundamental” and applicable against state governments, is automatically deemed “fundamental” against the Puerto Rican government as well. Under this equal rights approach, recent Supreme Court decisions concerning unanimous jury trials, free speech and campaign finance regulations, race-conscious remedies, and gun control, apply uniformly across state and territorial governments. However, federal and local courts have failed to provide a satisfying normative answer to the question of which rights should apply in the U.S. territories and whether there is any justification for a distinct system of rights for the states and territories. This chapter seeks to provide such an answer through the political philosophies of Iris Marion Young, Charles Taylor and Will Kymlicka, who reject liberal citizenship and equal rights. Additionally, it will explore how U.S. federalism has historically accommodated and recognized multiple nations and legal systems, and how the Supreme Court shifted away from this approach in favor of a more uniform system of constitutional rights. This normative and historical analysis will reframe local debates about whether judicially recognized federal rights should apply in Puerto Rico. Rather than accepting the notion of equal rights, the people of Puerto Rico should defend a pluralistic approach to rights, collectively deciding which federal constitutional rights should apply to them.