Igartua-De-La-Rosa v. United States

United States Court of Appeals
For the First Circuit

No. 04-2186

GREGORIO IGARTÚA-DE LA ROSA, ET AL.,

Plaintiffs, Appellants,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. Senior District Judge]

Before

Boudin, Chief Judge,

Campbell, Senior Circuit Judge,

Torruella, Selya, Lynch, Lipez and Howard, Circuit Judges.

Gregorio Igartúa-de la Rosa for appellants.
Francisco J. Domenech with whom Angel J. Vargas-Carcaña,
Office of the Legal Counsel & Federal Affairs for the President,
Senate of Puerto Rico, was on brief for the Senate of the
Commonwealth of Puerto Rico and its President, the Honorable
Kenneth D. McClintock, Amicus Curiae.
Richard H. Fallon, Jr. with whom José A. Fuentes-Agostini,
Reed Smith LLC, John M. García, García & Fernández PSC, Joaquín A.
Márquez, Philip J. Mause and Drinker Biddle & Reath LLP were on
brief for the Puerto Rican-American Foundation, joined by the
Republican Party of Puerto Rico, Amici Curiae.
Amy B. Abbott, Kirkpatrick & Lockhart Nicholson Graham LLP,
Glenn R. Reichardt, Shanda N. Hastings, Kirkpatrick & Lockhart
Nicholson Graham LLP on brief for Dick Thornburgh and Citizens'
Educational Foundation-US, Amici Curiae.
 Gael Mahony, Stephen S. Young, Martha Born, Holland & Knight
LLP and Israel Roldán-González on brief for Israel Roldán-González,
Amicus Curiae.
Gregory G. Katsas, Deputy Assistant Attorney General, with
whom Peter D. Keisler, Assistant Attorney General, H.S. García,
United States Attorney, Michael Jay Singer and Matthew M. Collette,
Appellate Staff, Civil Division, Department of Justice, were on
brief for appellee.

August 3, 2005

OPINION EN BANC
 Boudin, Chief Judge. This case brings before this court

the third in a series of law suits by Gregorio Igartúa, a U.S.

citizen resident in Puerto Rico, claiming the constitutional right

to vote quadrennially for President and Vice President of the

United States. Panels of this court have rejected such claims on

all three occasions.1 We now do so again, this time en banc,

rejecting as well an adjacent claim: that the failure of the

Constitution to grant this vote should be declared a violation of

U.S. treaty obligations.

The constitutional claim is readily answered. Voting for

President and Vice President of the United States is governed

neither by rhetoric nor intuitive values but by a provision of the

Constitution. This provision does not confer the franchise on

"U.S. citizens" but on "Electors" who are to be "appoint[ed]" by

each "State," in "such Manner" as the state legislature may direct,

equal to the number of Senators and Representatives to whom the

state is entitled. U.S. Const. art. II, § 1, cl. 2; see also id.

amend. XII.

At one time state legislatures chose the electors

themselves, see McPherson v. Blacker, 146 U.S. 1, 28-35 (1892); in

1
Igartua de la Rosa v. United States, 32 F.3d 8 (1st Cir.
1994) ("Igartúa I"); Igartua de la Rosa v. United States, 229 F.3d
80 (1st Cir. 2000) ("Igartúa II"); Igartúa-de la Rosa v. United
States, 386 F.3d 313 (1st Cir. 2004) ("Igartúa III"). The panel in
Igartúa III vacated its own decision and granted panel rehearing,
404 F.3d 1 (1st Cir. 2005); and this court then granted en banc
review, 407 F.3d 30 (1st Cir. 2005).

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the modern manner, customarily a U.S. state provides that its own

citizens--citizens of that state--vote for the electors to

represent that state. Modern ballots may omit the names of the

electors and list only the candidates, so in form it appears that

citizens are voting for President and Vice President directly. But

they are not: they are voting for electors and, more pertinent

here, the electors are electors of the states.

Puerto Rico--like the District of Columbia, the Virgin

Islands, and Guam--is not a "state" within the meaning of the

Constitution. Trailer Marine Transport Corp. v. Rivera Vazquez,

977 F.2d 1, 7 (1st Cir. 1992). Puerto Rico was not one of the

original 13 states who ratified the Constitution; nor has it been

made a state, like the other 37 states added thereafter, pursuant

to the process laid down in the Constitution. U.S. Const. art. IV,

§ 3, cl. 1. Nor has it been given electors of its own, as was the

District of Columbia in the Twenty-Third Amendment.

Puerto Rico became associated with the United States as

an unincorporated territory under Article IV of the Constitution

following the 1898 war between this country and Spain. U.S. Const.

art. IV, § 3, cl. 2; see Insular Cases, 182 U.S. 1 (1901). Its

status has altered over the ensuing period, culminating in an

agreement in 1952, approved by the citizens of Puerto Rico, that

Puerto Rico should have a unique "Commonwealth" status; but the

unique status is not statehood within the meaning of the

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Constitution. See Trailer Marine, 977 F.2d at 7; Igartúa II, 229

F.3d at 87-88 & nn.15-16 (Torruella, J., concurring). And, in

recent elections, Puerto Ricans themselves have been substantially

divided as to whether to seek statehood status. Cf. Rossello-

Gonzalez v. Calderon-Serra, 398 F.3d 1, 4-5 (1st Cir. 2004).

As Puerto Rico has no electors, its citizens do not

participate in the presidential voting, although they may do so if

they take up residence in one of the 50 states and, of course, they

elect the Governor of Puerto Rico, its legislature, and a non-

voting delegate to Congress. Like each state's entitlement to two

Senators regardless of population, the make-up of the electoral

college is a direct consequence of how the framers of the

Constitution chose to structure our government--a choice itself

based on political compromise rather than conceptual perfection.

Note, Rethinking the Electoral College Debate: The Framers,

Federalism, and One Person, One Vote, 114 Harv. L. Rev. 2526, 2526-

31 (2001) (discussing historical commentary).

That the franchise for choosing electors is confined to

"states" cannot be "unconstitutional" because it is what the

Constitution itself provides. Hence it does no good to stress how

important is "the right to vote" for President. Although we

recognize the loyalty, contributions, and sacrifices of those who

are in common citizens of Puerto Rico and the United States, much

the same could have been said about the citizens of the District of

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Columbia, who were voteless over a much longer period. The path to

changing the Constitution lies not through the courts but through

the constitutional amending process, U.S. Const. art. V; and the

road to statehood--if that is what Puerto Rico's citizens want--

runs through Congress. U.S. Const. art. IV, § 3, cl. 1.

This court has thrice rejected the constitutional claim

now advanced by Igartúa. The Ninth Circuit reached the same result

in a similar suit concerning Guam. Attorney General of the

Territory of Guam v. United States, 738 F.2d 1017 (9th Cir. 1984).

The Supreme Court denied certiorari in both Igartúa I, 514 U.S.

1049 (1995), and in the Ninth Circuit case, 469 U.S. 1209 (1985).

Igartúa has offered nothing new in this third case to support his

constitutional claim. In this en banc decision, we now put the

constitutional claim fully at rest: it not only is unsupported by

the Constitution but is contrary to its provisions.

Igartúa's complaint also relied upon U.S. treaties–-

technically, two of the three are not treaties--as a premise for

the suffrage right claimed.2 This theory had been advanced and

rejected by this court in Igartúa I, 32 F.3d at 10 n.1, which was

2
The first two of the three documents are not "treaties" in
the constitutional sense, being instead aspirational documents
never submitted by the President for Senate ratification. U.S.
Const. art. II, § 2, cl. 2. Neither is listed in the State
Department's current "treaties in force" list. U.S. Department of
State, Treaties in Force 2004, at www.state.gov/s/l/38294.htm. For
convenience, we ignore the distinction because it does not affect
the result in this case.

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binding on the panel and could not be altered by it. Charlesbank

Equity Fund II v. Blinds to Go, Inc., 370 F.3d 151, 160 & n.4 (1st

Cir. 2004). After the panel granted rehearing in this case to

examine a more elaborate version of the treaty argument, the en

banc court determined that the matter should be heard by the full

court. Two of the three panel members said that they were content

with this course. Only one judge dissented from the proposal to

hear the case en banc. See Igartúa de la Rosa, 407 F.3d 30.

No treaty claim, even if entertained, would permit a

court to order that the electoral college be enlarged or

reapportioned. Treaties--sometimes--have the force of domestic

law, just like legislation; but the Constitution is the supreme law

of the land, and neither a statute nor a treaty can override the

Constitution. Reid v. Covert, 354 U.S. 1, 16-18 (1957) (plurality

opinion); Matter of Burt, 737 F.2d 1477, 1484 (7th Cir. 1984);

Plaster v. United States, 720 F.2d 340, 348 (4th Cir. 1983)

(collecting case law). See also Marbury v. Madison, 5 U.S. (1

Cranch.) 137, 180 (1803) ("a law repugnant to the constitution is

void"). So the treaty claim, originally made in support of

injunctive relief, is now recast by proponents as a demand for "a

declaration" that the United States is in violation of its treaty

obligations for failing to "take steps" to give a presidential vote

to citizens of Puerto Rico.

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 There are a host of problems with the treaty claim,

including personal standing, redressability, the existence of a

cause of action, and the merits of the treaty interpretations

offered. Treaties are made between states (in the international

usage of that term) and citizens do not automatically have a right

to sue upon them.3 The present claim is also probably not

justiciable in the sense that any effective relief could be

provided;4 it is enough to let common sense play upon the

conjecture that the Constitution would be amended if only a federal

court declared that a treaty's generalities so required. See

Simon, 426 U.S. at 44 ("unadorned speculation [as to redress] will

not suffice to invoke the federal judicial power").

Nor are the merits of Igartúa’s reading of the treaties

at all straightforward. The language of each of the treaties

invoked is general. Nothing in them says anything about just who

should be entitled to vote for whom, or that an entity with the

3
See United States v. Li, 206 F.3d 56, 60-61 (1st Cir. 2000)
(en banc) ("[T]reaties do not generally create rights that are
privately enforceable in the federal courts" (citing Head Money
Cases, 112 U.S. 580, 598 (1884)); id. at 61 ("presumption against
private rights of action under international treaties").
4
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976)
(unless injury is "likely to be redressed by a favorable decision,"
federal court's exercise of power "would be gratuitous and thus
inconsistent with the Art. III limitation"); Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992)(redressability must not be
"speculative"). See also Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 103-04, 103 n.5 (1998) (redressability at
"core" of Article III).

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negotiated relationship that the United States has with Puerto Rico

is nevertheless required to adopt some different arrangement as to

governance or suffrage. In 1951, Puerto Ricans themselves acceded

to their present Commonwealth status,5 and they are today divided

as to what relationship they would prefer on the spectrum from

statehood to Commonwealth status to independence.

We think it unnecessary to plumb these questions, whether

of preconditions to suit or the meaning of the treaties, because

none of these treaties comprises domestic law of the United States

and so their status furnishes the clearest ground for denying

declaratory relief. It is well settled that declaratory relief is

discretionary, Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995),

but discretion does not mean anything that a judge feels like

doing. Rather,

the discretion to grant declaratory relief is
to be exercised with great circumspection when
matters of public moment are involved, . . .
or when a request for relief threatens to drag
a federal court prematurely into
constitutional issues that are freighted with
uncertainty.

5
See G.A. Res. 748 (VIII), U.N. GAOR, 8th Sess., 459th plen.
mtg. at 26 (1953) (United Nations General Assembly, upon formation
of "political association" between United States and Puerto Rico,
"[r]ecognizes that the people of the Commonwealth of Puerto Rico,
by expressing their will in a free and democratic way, have
achieved a new constitutional status" and "that, when choosing
their constitutional and international status, the people of the
Commonwealth of Puerto Rico have effectively exercised their right
to self-determination").

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Ernst & Young v. Depositors Economic Protection Corp., 45 F.3d 530,

535 (1st Cir. 1995).

It would not be "circumspection" but patent imprudence to

"declare" purported rights under the treaties at issue in this

case. The United States has signed numerous treaties over the

years, many containing highly general and ramifying statements.

Some as negotiated by the President are merely aspirational and not

law in any sense. Others may comprise international commitments,

but they are not domestic law unless Congress has either enacted

implementing statutes or the treaty itself conveys an intention

that it be "self-executing" and is ratified on these terms. The

law to this effect is longstanding. See Whitney v. Robertson, 124

U.S. 190, 194 (1888); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314

(1829) (Marshall, C.J.).

The treaties in question here do not adopt any legal

obligations binding as a matter of domestic law. The Universal

Declaration of Human Rights is precatory: that is, it creates

aspirational goals but not legal obligations, even as between

states. Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2767 (2004).

This is also true of the Inter-American Democratic Charter.6 The

6
See Remarks of U.S. Ambassador Roger Noriega at Organization
of American States Permanent Council Meeting (Sept. 6, 2001), in
Digest of United States Practice in International Law: 2001 at 347,
Office of the Legal Advisor, U.S. Department of State (Sally J.
Cummins & David P. Stewart eds., 2001) ("[T]he United States
understands that this Charter does not establish any new rights or
obligations under either domestic or international law.").

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final instrument, the International Covenant on Civil and Political

Rights, is a ratified treaty but was submitted and ratified on the

express condition that it would be "not self-executing." 138 Cong.

Rec. S4781, S4784 (daily ed. Apr. 2, 1992). Indeed, Sosa used it

as an example of such a treaty, saying:

Several times, indeed, the Senate has
expressly declined to give the federal courts
the task of interpreting and applying
international human rights law, as when its
ratification of the International Covenant on
Civil and Political Rights declared that the
substantive provisions of the document were
not self-executing.

124 S. Ct. at 2763.

Whatever limited room there may be for courts to second-

guess the joint position of the President and the Senate that a

treaty is not self-executing--and we are pretty skeptical of such

a suggestion in light of "the discretion of the Legislative and

Executive Branches in managing foreign affairs," id.--it is

certainly not present in a case in which the Supreme Court has

expressed its own understanding of a specific treaty in the terms

block quoted above. Indeed, only a few pages later Sosa repeated:

"[T]he United States ratified the Covenant on the express

understanding that it was not self-executing and so did not itself

create obligations enforceable in the federal courts." Id. at

2767.

When the President negotiates a precatory agreement or a

non-self-executing treaty, and when Congress refuses to adopt

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implementing legislation for a non-self-executing treaty, both are

performing functions entrusted to them by the Constitution. U.S.

Const. art. I, §§ 1, 8-10; art. II, §§ 2-3. It would ignore, and

undermine, this constitutional allocation of functions for a

federal court to declare that the United States was nevertheless

"violating" such a treaty. In substance, such an exercise would

attempt to do what the President and Congress have declined to do,

namely, to deploy the treaty provision in an attempt to order

domestic arrangements within the United States.

This intrusive course could also embarrass the United

States in the conduct of its foreign affairs, which is "committed

by the Constitution to the executive and legislative--'the

political'--departments of the government." Oetjen v. Central

Leather Co., 246 U.S. 297, 302 (1918). Whatever the State

Department might later say, such a declaration by a federal court

of a supposed "treaty obligation" could be trumpeted as propaganda

in international bodies and elsewhere. This is a legitimate

concern in considering whether "discretion" should be exercised to

grant declaratory relief.7 Of course, no such declaration would

confer a presidential vote on Igartúa: it would merely reinforce

7
See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 412,
431-33 (1964) (weighing possibility of "embarrassment to the
Executive Branch in handling foreign affairs"); Baker v. Carr, 369
U.S. 186, 217 (1962) ("potentiality of embarrassment from
multifarious pronouncements by various departments on one question"
relevant to justiciability). See also United States v. Lee, 106
U.S. 196, 209 (1882).

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the disturbing view that judges have no proper notion of where

their own authority ends.

The case for giving Puerto Ricans the right to vote in

presidential elections is fundamentally a political one and must be

made through political means. But the right claimed cannot be

implemented by courts unless Puerto Rico becomes a state or until

the Constitution is changed (as it has been, at least five times,

to broaden the franchise). U.S. Const. amend. XV (race, color,

previous servitude); id. amend. XIX (sex); id. amend. XXIII

(District of Columbia); id. amend. XXIV (payment of poll or other

tax); id. amend. XXVI (age eighteen and older). It certainly

should not be "declared" by a federal court on the basis of

treaties none of which was designed to alter domestic law--and none

of which could override the Constitution.

Little need be said of Igartúa's related claim that

customary international law, by itself and independent of treaties,

requires that he be allowed to vote for President. Although

sometimes said by enthusiasts to be law like other law, customary

international law is a diffuse and often highly uncertain body of

norms whose force and enforceability vary greatly even in the

international sphere; and its status in our domestic courts is even

more qualified. See Sosa, 124 S. Ct. at 2762-63, 2768-69.

Only recently, in Sosa, the Supreme Court enjoined great

caution in importing such norms into domestic law, even in the

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context of a federal statute governing alien tort actions that

arguably authorized some degree of importation by federal courts.

Sosa refused to recognize as a norm of customary international law

the notion of protection against arbitrary arrest. 124 S. Ct. at

2769. Yet the claim rejected in Sosa was a model of precision

compared to Igartúa's present claim.

No serious argument exists that customary international

law, independent of the treaties now invoked, requires a particular

form of representative government. Practice among leading

democratic nations shows a diversity as to how governments organize

and structure the franchise; in Great Britain, for example, neither

the head of state nor of government is directly elected by the

public at large. If there exists an international norm of

democratic government, it is at a level of generality so high as to

be unsuitable for importation into domestic law. Sosa, 124 S. Ct.

at 2768 n.27.

Finally, other supporters of Igartúa's claim suggest that

the United States need not "amend the Constitution" to resolve the

asserted infirmity of having Puerto Ricans classed as citizens of

the United States but unable to vote for President. For example,

Puerto Rico could be made a state or, alternatively, could be

recognized as an independent nation. Granting the declaration, it

is claimed, would encourage the United States to "take steps"

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toward a resolution even if it did not immediately secure a vote

for Igartúa.

This is, of course, nothing but speculation, but it

further underscores the impropriety of the judicial declaration

sought. The main impact of such an abstract declaration, if any,

would be to serve partisans in a political campaign as to the

choice between statehood, independence, Commonwealth status, or

other altered arrangements between Puerto Rico and the United

States. Changes to the Constitution and the present status of

Puerto Rico are not the province of federal judges, nor are they

dictated by international law; those changes can only be adopted as

set forth in the Constitution and laws of the United States.

Affirmed.

Concurring and dissenting opinions follow.

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 CAMPBELL, Senior Circuit Judge, concurring. I join in

Chief Judge Boudin's excellent opinion for the majority, but I also

note my subscription to Judge Lipez's narrower concurrence. The

two are not in conflict. The majority's opinion recognizes the

possible validity of Judge Lipez's belief that the court here lacks

jurisdiction to grant declaratory relief. I happen to think Judge

Lipez is right, and, if so, that of course ends the matter. But

even apart from the correctness of his approach, I agree with Chief

Judge Boudin's alternative analysis which leads to the same

outcome.

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 LIPEZ, Circuit Judge, concurring in the judgment. I

agree with the majority's denial of relief to Igartúa. I write

separately, however, because I would reject Igartúa's request for

declaratory relief on jurisdictional grounds.

I.

I am sympathetic to the aspirations of Puerto Ricans who

are citizen residents of Puerto Rico to participate fully in the

election of the President and Vice President of the United States.

The dissenting judges present their legal positions in support of

those aspirations powerfully and eloquently. Nevertheless,

"[f]ederal courts are courts of limited jurisdiction," Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), and that

limited jurisdiction does not permit us to decide the issues raised

by Igartúa's request for declaratory relief.

It may seem odd to some that a federal court might not

have the power to answer important legal questions involving the

interaction between the Constitution, international law, and the

rights of American citizens. But, as I will explain below, one

cannot simply go to federal court and get an answer to a legal

question. Before a federal court can resolve the issues before it,

the court must first satisfy itself that, if the plaintiff

ultimately won, the decision would probably result in a redress of

the plaintiff's grievance. If a judicial victory would probably

not produce such a result, the federal court has no power to

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address the merits of the issues underlying the dispute. In most

cases redressability is not a problem. In this case, however,

redressability is an insuperable problem.

As the majority ably explains, there are only two methods

under our Constitution by which a territory can receive electoral

votes: through admission as a state, see U.S. Const. art. IV, § 3,

cl. 1, or by special amendment, see id. amend. XXIII. For all

practical purposes, only Congress can perform either of these

actions, and whether to do so is in Congress's sole discretion.8

Thus, the critical jurisdictional question reduces to whether a

court can declare Congress's failure to initiate either of these

processes to be a violation of international law -- or, as Judge

Torruella puts it, whether a court can issue a declaratory judgment

that "the United States has taken no steps to meet its obligations

under the ICCPR and customary international law to grant equal

voting rights to all citizens in the election of the President and

Vice President of the United States." Post at 88 (Torruella, J.,

dissenting).

In my view, the answer to this jurisdictional question

does not turn on the precise contents of the particular agreements

at issue; whether the agreements are binding or merely "precatory";

8
There is an exception, in theory: if two-thirds of state
legislatures so request, Congress must convene a Constitutional
convention. See U.S. Const. art. V. However, no such convention
has ever been convened since the adoption of the Constitution.

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whether they have been ratified by the Senate; whether they are

self-executing; or even whether the relevant international legal

norms derive from agreements at all, as opposed to customary law.

Nor does the answer turn on the discretionary nature of a

declaratory judgment. Even if those factors were removed,

Igartúa's request for declaratory relief would still face an

insuperable obstacle: we lack jurisdiction to decide his

international law claim because his grievance is not judicially

redressable. See Steel Co. v. Citizens for a Better Env't, 523

U.S. 83, 101 (1998) (court must address Article III jurisdictional

questions before addressing merits, because "[h]ypothetical

jurisdiction produces nothing more than a hypothetical judgment --

which comes to the same thing as an advisory opinion").

Unavoidably, Igartúa's request for a declaratory judgment requires

unsupportable speculation about the possibility of a Constitutional

amendment or the admission of Puerto Rico as a state. For this

reason alone, I conclude that we do not have jurisdiction over his

request for declaratory relief.

II.

Under Article III of the Constitution, "[t]he judicial

Power shall extend" to "Cases" and "Controversies." U.S. Const.

art. III, § 2, cl. 1. The Supreme Court has interpreted this "case

or controversy" requirement to mean, among other things, that

federal courts do not issue advisory opinions. In particular, a

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federal court may only exercise jurisdiction over an action if it

is "'likely,' as opposed to merely 'speculative,' that the injury

will be 'redressed by a favorable decision.'" Lujan v. Defenders

of Wildlife, 504 U.S. 555, 561 (1992) (quoting Simon v. E. Ky.

Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)). If the plaintiff

cannot show that his injury "is likely to be redressed by a

favorable decision," the federal court's "exercise of its power

. . . would be gratuitous and thus inconsistent with the Art. III

limitation." Simon, 426 U.S. at 38. This limitation applies with

undiminished force to actions for declaratory judgment. See

Calderon v. Ashmus, 523 U.S. 740, 745 (1998) ("[W]e must first

address whether this action for a declaratory judgment is the sort

of 'Article III' 'case or controversy' to which federal courts are

limited."); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240

(1937) (The Declaratory Judgment Act "is operative only in respect

to controversies which are such in the constitutional sense.").

This is not a case where a plaintiff claims injury from

an allegedly unconstitutional act of Congress. Rather, Igartúa

claims injury from Congress's inaction in the face of certain

international agreements: its failure to either admit Puerto Rico

as a state or to propose a Constitutional amendment allocating

electors to Puerto Rico.9 Since it is beyond dispute that we could

9
The dissents suggest that there might be other alternatives
by which Congress could grant the Presidential vote to residents of
Puerto Rico. The only specific suggestion is one first advanced by
Judge Leval in Romeu v. Cohen, 265 F.3d 118, 128-30 (2d Cir. 2001)

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not order Congress to do either of those things, Judge Torruella

says that we should issue a declaratory judgment that Congress has

not fulfilled its duties under international agreements. Judge

Torruella then says that Congress, chastened by this declaration,

would voluntarily choose to act -- presumably either by admitting

Puerto Rico as a state or proposing an amendment similar to the

Twenty-third. In Judge Torruella's view, "it is substantially

likely that a declaration by this Court that the United States is

in violation of international law will result in some form of

relief to the United States citizens who reside in Puerto Rico."

Post at 80 (Torruella, J., dissenting).

Respectfully, the basis for this speculation about

Congress initiating the process of Constitutional amendment or

invoking the Constitutional process for the admission of a new

state is unexplained. We have already warned about the hazards of

such speculation when only statutory changes by a state legislature

were at stake. In Biszko v. RIHT Financial Corp., 758 F.2d 769

(Leval, J., writing separately), under which Congress would require
each state to accept a proportional share of territorial voters.
See post at 89 (Howard, J., dissenting). This suggestion has been
critiqued on the ground that there is "no authority in the
Constitution for the Congress (even with the states' consent) to
enact such a provision." Romeu, 265 F.3d at 121 (Walker, Jr.,
C.J., concurring); see also id. at 136 (Walker, Jr., C.J.,
concurring) ("I see only two remedies afforded by the Constitution:
(1) statehood . . ., or (2) a constitutional amendment."). At any
rate, for purposes of redressability analysis, it is no more likely
that Congress would adopt Judge Leval's suggestion (which is
probably not Constitutionally permissible) than one of the two
alternatives that the Constitution provides.

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(1st Cir. 1985), plaintiffs challenged a Rhode Island statute that

arguably created market conditions under which plaintiffs could not

receive full market value for their shares in a Rhode Island bank.10

They argued that their suit was redressable because if the federal

court invalidated the statute, "the Rhode Island legislature would

soon be moved, sua sponte or by the persuasive efforts of non-New

England banks, to pass a statute permitting [a more competitive

market]." Id. at 773. We described such speculation concerning "a

benefit that [plaintiffs] might gain were the Rhode Island

legislature to react in a certain way to a decision by this court"

as "not merely speculative" but "positively chimerical." Id.11

If a legislative body would be within its rights to

ignore the court's decision, and the plaintiff cannot convince the

court that it is "'likely,' as opposed to merely 'speculative,'"

Lujan, 504 U.S. at 561, that the legislature will react in the way

that he hopes, the redressability requirement has not been met.

Cf. Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S.

103, 113 (1948) ("[I]f the President may completely disregard the

10
The statute permitted a Rhode Island bank to be acquired by
an out-of-state bank, but only if the other bank was based in
another New England state. The plaintiffs were shareholders of a
Rhode Island bank that had agreed to merge with a Massachusetts
bank, and they sought to block the merger. See id. at 770-71.
They argued that the limitation to New England banks reduced
competition and that, without that restriction, an out-of-state
bank would have had to pay more for their stock. See id. at 771.
11
We analyzed this argument under the rubric of the "injury"
requirement, but our reasoning on that point applies to the
redressability requirement.

-22-
judgment of the court, it would be only because it is one the

courts were not authorized to render. Judgments, within the powers

vested in courts by the Judiciary Article of the Constitution, may

not lawfully be revised, overturned or refused faith and credit by

another Department of Government."). The cases that Judge

Torruella cites for the contrary proposition (that Congress would

be "substantially likely" to redress Igartúa's grievance in light

of a judicial declaration) are easily distinguishable and actually

reveal why the redressability requirement prevents declaratory

relief here.

Judge Torruella relies on Utah v. Evans, 536 U.S. 452

(2002), a dispute ultimately stemming from the Census Bureau's

method of calculating population in the 2000 census. The Bureau

used a statistical method that calculated the population of Utah as

somewhat lower, relative to the population of North Carolina, than

if the Bureau had not used that method. See id. at 457-58.

Pursuant to statute, the Bureau's final report was formally

transmitted to Congress, and the Clerk of the House of

Representatives then transmitted to each state governor "'a

certificate of the number of Representatives to which [that] State

[was] entitled.'" Id. at 461 (quoting 2 U.S.C. § 2a(b)). Due to

the statistical method that the Bureau used, Utah received one less

representative, and North Carolina one more representative, than if

the Bureau had not used that method. Id. at 458. After receiving

-23-
the results, Utah sued the government, arguing that the Bureau's

statistical method violated another census-related statute, and

sought an injunction ordering the Bureau to reissue its report with

different results. Id. at 459.

North Carolina intervened, arguing that the case was not

justiciable because the relief sought would not redress Utah's

grievance. Although North Carolina "[did] not deny that the courts

[could] order the [Bureau] to recalculate the numbers and to

recertify the official census result," it reasoned that "Utah

suffer[ed], not simply from the lack of a proper census 'report' (a

document), but more importantly from the lack of the additional

congressional Representative to which North Carolina believes

itself entitled as a consequence of the filing of that document."

Id. at 461. In other words, although the court could order a new

census report as Utah requested, a new report would not result in

Utah gaining a Representative. That outcome would depend entirely

on whether Congress, acting in its unbridled discretion, would

choose to reapportion, or just ignore the report.

The Court concluded that the injury cited by Utah was

redressable:

[W]e believe it likely that Utah's victory
here would bring about the ultimate relief
that Utah seeks. Victory would mean a
declaration leading, or an injunction
requiring, the Secretary to substitute a new
"report" for the old one. Should the new
report contain a different conclusion about
the relative populations of North Carolina and

-24-
 Utah, the relevant calculations and consequent
apportionment-related steps would be purely
mechanical; and several months would remain
prior to the first post-2000 census
congressional election. Under these
circumstances, it would seem . . .
"substantially likely that the President and
other executive and congressional officials
would abide by an authoritative interpretation
of the census statute . . . ."

Id. at 463-64 (quoting Franklin v. Massachusetts, 505 U.S. 788, 803

(1992) (opinion of O'Connor, J.)). Two points about Evans bear

emphasis. First, compliance with the actual court order or

declaration relating to the need for a new census report "would be

purely mechanical." 536 U.S. at 463. Second, while ultimate

redress of Utah's grievance would require discretionary action by

elected officials, that action -- recertifying the total number of

Representatives for two states -- was of a piece with a process so

regular and commonplace that Congress has, in ordinary

circumstances, delegated it by statute to the Clerk of the House.12

Here, by contrast, the Congressional action envisioned (admitting

a state or initiating the process of Constitutional amendment) is

exceptional, lengthy, complex, and highly uncertain. Consequently,

12
After Congress receives the statement listing the number of
representatives to which each state is entitled, "[i]t shall be the
duty of the Clerk of the House of Representatives, within fifteen
calendar days after the receipt of such statement, to send to the
executive of each State a certificate of the number of
Representatives to which such State is entitled." 2 U.S.C.
§ 2a(b).

-25-
how Congress would react to a declaration is considerably more

speculative here than in Evans.13

A second case cited by Judge Torruella, Juda v. United

States, 13 Cl. Ct. 667 (1987), relates more directly to

international agreements. Juda concerned the status of the

Marshall Islands. After World War II, the United States entered

into an agreement with the United Nations (UN) to administer the

Marshall Islands as a UN trusteeship, in an arrangement designed to

be temporary. In the 1970s, the United States decided to terminate

the trusteeship and offer the territory a compact of free

association. The compact agreement was submitted to a plebiscite,

and was resoundingly approved. Congress then enacted, and the

President signed, legislation formally adopting the compact. After

the President issued an executive order implementing the compact,

the UN Trusteeship Council determined that the trusteeship had

terminated. See id. at 671-76.

Some years later, Marshall Islander plaintiffs filed a

claim against the United States under the Tucker Act, 28 U.S.C.

§ 1491,14 which had undisputedly applied to the Islands while they

were still under the trusteeship. The United States argued,

13
Moreover, one of the two methods of redress contemplated --
Constitutional amendment -- would require action not just by
Congress, but also the legislatures of thirty-eight states. See
U.S. Const. art. V.
14
The Tucker Act grants jurisdiction to the Court of Federal
Claims (then known as the Claims Court) for claims against the
United States, and provides the government's consent to such suits.

-26-
however, that the compact agreement withdrew the government's

waiver of sovereign immunity. See 13 Cl. Ct. at 677. The

plaintiffs responded that, under the rules applicable to UN

trusteeships, the trusteeship had not been validly terminated, and

therefore the compact -- which withdrew the government's consent to

suit -- never took effect. See id. at 678.

The court rejected the plaintiffs' argument that failure

to terminate the trusteeship properly meant that the compact (and

with it the withdrawal of consent to suit) had never taken effect.

Rather, the court found that whether "the Trusteeship Agreement has

not been terminated de jure does not resolve the issue of whether

the Compact . . . is in effect." Id. at 682. Ultimately, the

court concluded that the compact did take effect, and therefore

that the United States had withdrawn its consent to be sued. See

id. at 683, 690. Thus, it dismissed the complaint. Id. at 690.

Nevertheless, in a lengthy dictum, the court explained

that the trusteeship had in fact not been properly terminated. The

court held that the trusteeship could not be formally terminated

until the UN Security Council so voted. See id. at 678-82. Some

time after the Juda decision issued, the government took the

court's advice and formally asked the Security Council to terminate

the trusteeship, which it did. See United Nations Security Council

Resolution 683 (Dec. 22, 1990). That dictum, and the government's

-27-
decision to take the court's advice, is the precedent upon which

Judge Torruella relies.

Yet the Juda court did not "declare" anything -- it

dismissed the plaintiffs' complaint, did not even mention a

declaratory judgment, and is cited by Judge Torruella only for a

dictum. More importantly, in Juda there was no dispute that both

Congress and the President intended to terminate the trusteeship;

indeed, by enacting the compact and issuing an executive order

implementing it, the political branches thought they had done

exactly that. Juda noted that these actions did not have their

intended effect due to a technical misunderstanding of UN

procedures, and explained how the elected branches could properly

achieve what they had already sought to do. The likelihood that

Congress and the President would follow the court's advice was not

just "substantial," it was a near certainty. There is nothing

remotely approaching such certainty here.15

15
A third case cited by Judge Torruella, Federal Election
Commission v. Akins, 524 U.S. 11 (1998), does not involve the
likelihood of action by Congress. Akins was a petition for review
of an administrative agency's dismissal of an administrative
complaint. See id. at 18. The agency's governing statute
specifically authorized judicial review of an agency's decision not
to take certain action, see 2 U.S.C. § 437g(a)(8)(A), and provided
that the district court "may declare that the dismissal of [a]
complaint or the failure to act is contrary to law, and may direct
the Commission to conform with such declaration within 30 days,"
id. § 437g(a)(8)(C). Thus, Akins involved an administrative agency
which Congress placed under unusually close judicial oversight,
even extending to the agency's exercise of prosecutorial
discretion, for which every declaration was potentially accompanied
by a coercive order "to conform with such declaration within 30
days." We are not dealing in this case with a subordinate

-28-
 III.

There is no precedent for issuing a declaratory judgment

in the circumstances of this case, and for good reason. A

declaratory judgment "is a procedural device that provides a new,

noncoercive remedy . . . in cases involving an actual controversy

that has not reached the stage at which either party may seek a

coercive remedy . . . and in cases in which a party who could sue

for coercive relief has not yet done so." B. Braun Med., Inc. v.

Abbott Labs., 124 F.3d 1419, 1428 (Fed. Cir. 1997) (emphasis

added). Here, however, no coercive remedy would ever be available.

Congress would be perfectly within its rights to ignore whatever a

federal court said. The court's declaratory judgment would be, in

essence, an advisory opinion.

As the Supreme Court explained in a different context:

In all civil litigation, the judicial decree
is not the end but the means. At the end of
the rainbow lies not a judgment, but some
action (or cessation of action) by the
defendant that the judgment produces -- the
payment of damages, or some specific
performance, or the termination of some
conduct. Redress is sought through the court,
but from the defendant. This is no less true
of a declaratory judgment suit than of any

government agency, created by statute, with carefully crafted
provisions for substantive judicial review over the agency's
decision to do nothing. Rather, the party whose inaction Igartúa
complains of is Congress itself, a coequal branch of government
that is Constitutionally free to ignore any potential declaration
that it should or must perform various actions entrusted to its
sole discretion by the Constitution itself. The redressability
analysis in Akins does not apply to this case.

-29-
 other action. The real value of the judicial
pronouncement -- what makes it a proper
judicial resolution of a "case or controversy"
rather than an advisory opinion -- is in the
settling of some dispute which affects the
behavior of the defendant towards the
plaintiff.

Hewitt v. Helms, 482 U.S. 755, 761 (1987) (describing test for

"prevailing party" under 42 U.S.C. § 1988). Here there is only

hope and speculation that Congress, in response to a declaratory

judgment about a violation of international law, would invoke

cumbersome and contentious processes relating to Constitutional

amendments or the admission of a new state to eventually give

citizen residents of Puerto Rico the right to vote for President

and Vice President. Such hope and speculation does not satisfy the

"case or controversy" requirement of Article III. On that basis

alone, I would decline to exercise jurisdiction over Igartúa's

request for declaratory relief.

-30-
 TORRUELLA, Circuit Judge (dissenting).16 In its haste to

"put [plaintiffs-appellants'] constitutional claim fully at rest,"17

maj. op. at 6, the majority has chosen to overlook the issues

actually before this en banc court as framed by the order of the

rehearing panel, see Igartúa de la Rosa v. United States, 404 F.3d

1 (1st Cir. 2005) (order granting panel rehearing), which panel the

en banc court suppressed, but whose order was adopted as

establishing the parameters of the issues to be decided by the en

banc court. See Igartúa de la Rosa v. United States, 407 F.3d 30,

31 (1st Cir. 2005) (converting to en banc review panel rehearing in

which "the parties [are] to address two issues: first, the

plaintiffs' claim that the United States was in default of its

treaty obligations and, second, the availability of declaratory

judgment concerning the government's compliance with any such

16
I acknowledge the participation of amici, whose briefs
contributed to the clarification of various important issues. I
regret that not all amici were granted the opportunity to express
themselves at oral argument.
17
Is this the constitutional equivalent of "rest in peace"?
Of course, if Judge Lipez and Judge Campbell are correct that we
lack jurisdiction to consider plaintiffs' claim, then the
majority's various conclusions on the merits would be mere dicta,
lacking any precedential value. "Without jurisdiction the court
cannot proceed at all in any cause. Jurisdiction is power to
declare the law, and when it ceases to exist, the only function
remaining to the court is that of announcing the fact and
dismissing the cause." Ex parte McCardle, 7 Wall. 506, 514, 19
L.Ed. 264 (1868) (quoted in Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 94-95 (1998)). Furthermore, if the
concurring opinion is correct, the majority is issuing an advisory
opinion of the same kind that Judge Lipez claims results from the
declaratory judgment that I propose.

-31-
obligations."). It is these issues that the parties were asked to

brief. Instead the majority has sidetracked this appeal into a dead

end that is no longer before us: Puerto Rico's lack of electoral

college representation, see U.S. Const. art. II, § 1, cl. 2, and

our lack of authority to order any constitutional change to such

status by reason of that constitutional impediment.

In doing so, the majority fails to give any weight to the

fundamental nature of the right to vote, and the legal consequences

of this cardinal principal. Under the combined guise of alleged

political question doctrine, its admitted desire to avoid

"embarrassment" to the United States, and its pious lecturing on

what it deems to be the nature of the judicial function, the

majority seeks to avoid what I believe is its paramount duty over

and above these stated goals: to do justice to the civil rights of

the four million United States citizens who reside in Puerto Rico.

The majority labels this duty with despect as "rhetoric" and

"intuitive values." Maj. op. at 3. I beg to differ, and so, I

suspect, do a considerable number of those four million U.S.

citizens who, lacking any political recourse, look to the courts of

the United States for succor because they are without any other

avenue of relief. See United States v. Carolene Prods. Co., 304

U.S. 144, 152 n.4 (1938) ("[P]rejudice against discrete and insular

minorities may be a special condition, which tends seriously to

curtail the operation of those political processes ordinarily to be

-32-
relied upon to protect minorities and . . . may call for

correspondingly more searching judicial inquiry.").18

Considering that justice and equity are the handmaidens

of the law, I believe it is the duty of this court to exercise its

equitable power under the Declaratory Judgment Act, 28 U.S.C. §

2201(a),19 in its decision of the issues that are properly before

the en banc court, and to declare that the United States has failed

to take any steps to meet obligations that are cognizable as the

supreme law of the land20 regarding plaintiffs-appellants' voting

rights. "This is of the very essence of judicial duty." Marbury

v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803).

Because I believe that the majority fails to meet this

duty, I respectfully dissent.

18
Reducing the majority and concurring opinions to their bare
bones, the former leaves the four million nationally
disenfranchised United States citizens residing in Puerto Rico to
claim their rights through a nonexistent political forum, while the
latter deny an existing judicial forum the authority to state the
actuality of an undeniable fact. Both outcomes leave the citizens
in question in an unjust legal limbo.
19
The Act states that "[i]n a case of actual controversy within
its jurisdiction, . . . any court of the United States, upon the
filing of an appropriate pleading, may declare the rights and other
legal relations of any interested party seeking such declaration,
whether or not further relief is or could be sought." 28 U.S.C. §
2201(a).
20
U.S. Const. art. VI, cl. 2 ("This Constitution, and the Laws
of the United States which shall be made in Pursuance thereof; and
all Treaties made, or which shall be made, under the Authority of
the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding.").

-33-
 I.

A. How did we come to this state of affairs?

On July 25, 1898, in the closing days of the Spanish-

American War, the United States invaded21 Puerto Rico. At that

21
In what must be the height of euphemism, the majority refers
to this turn of events as Puerto Rico's becoming "associated" with
the United States. Maj. op. at 4. A similar, but more pernicious,
mischaracterization follows its description of the congressional
enactments that authorized local self-government for Puerto Rico,
which the majority calls an "agreement" for a "unique
'Commonwealth' status," id., and which the majority states resulted
in the current "negotiated relationship," id. at 9 (emphasis in
original), between the U.S. and Puerto Rico. Of course, these
statements are simply inaccurate and do not reflect the facts.
There is no room for doubt that Public Law 600, 64 Stat. 319 (1950)
(codified at 48 U.S.C § 731b, et seq.) (authorizing Puerto Rico to
enact a constitution for local self-government), and its sequel,
Public Law 447, 66 Stat. 327 (1952) (resolution approving Puerto
Rico's Constitution), did nothing to change the underlying
constitutional status of Puerto Rico as an unincorporated
territory, subordinated to Congress' plenary powers under the
Territorial Clause, U.S. Const., Art. IV, § 3, cl. 2. See generally
David M. Helfeld, The Historical Prelude to the Constitution of the
Commonwealth of Puerto Rico, 21 Rev. Jur. U.P.R. 135 (1952); David
M. Helfeld, Congressional Intent and Attitude Toward Public Law 600
and The Constitution of the Commonwealth of Puerto Rico, 21 Rev.
Jur. 255 (1952) (containing numerous citations to the Congressional
record and reports indicating that these measures did not change
Puerto Rico's basic status under the Constitution nor Congress'
powers over this unincorporated territory); Keith Bea,
Congressional Research Service, Political Status of Puerto Rico:
Background, Options, and Issues in the 109th Congress, at CRS-2
(updated Jun. 6, 2005) ("While the approval of the commonwealth
constitution marked a historic change in the civil government for
the islands, neither it, nor the public laws approved by Congress
in 1950 and 1952, revoked statutory provisions concerning the legal
relationship of Puerto Rico to the United States. This
relationship is based on the Territorial Clause of the U.S.
Constitution."). It is not just the majority's inaccuracies in
describing the colonial relationship between Puerto Rico and the
United States to which I object. The majority's unfortunate choice
of language obviously favors the colonial condition and this bias
will, without any question or doubt, be exploited politically.

-34-
point in time the inhabitants of Puerto Rico had full rights as

Spanish citizens. This included the right to elect sixteen

deputies and three senators, with full voting rights, to the

Spanish Cortes (Parliament).22 Fernando Bayrón Toro, Elecciones y

partidos de Puerto Rico 108 (2003). Furthermore, Puerto Ricans had

recently been granted a high measure of self-government. See

generally Autonomic Charter of 1897, reproduced at, Documents on

the Constitutional Relationship of Puerto Rico and the United

States 22-46 (Marcos Ramirez Lavandero, ed., 1948).

All this came to naught with the signing of the Treaty of

Paris on December 10, 1898, which officially concluded this

"splendid little war"23 and ended four hundred years of Spanish

The debate over what status Puerto Rico ought to have with
respect to the United States is, of course, hotly contested. What
that status should be is not the issue before us. The only issue
is whether the U.S. citizens in Puerto Rico should have the right
to vote nationally. The right to vote will benefit all U.S.
citizens residing in Puerto Rico regardless of their position on
status, since it will give them a meaningful political voice until
that issue is resolved, and on that issue itself.
22
In fact, Puerto Rico had been represented in the Spanish
Cortes as early as 1812, see Constitución politica de la Monarquía
Española (promulgated in Cadiz on Mar. 18, 1812), as a result of
which its one deputy, Ramón Powers, became Vice President of the
Cortes in 1812. Thereafter, depending on the vagaries of Spanish
politics, constitutions, and special laws enacted to apply to
Spain's overseas provinces and colonies, Puerto Rico was variously
represented in the Cortes.
23
John Hay, U.S. Ambassador to Great Britain in 1898, and a
leading expansionist of the time, wrote to then Colonel Theodore
Roosevelt, at the time of only Rough Rider fame, "[i]t has been a
splendid little war; begun with the highest motives, carried on
with magnificent intelligence and spirit, favored by that fortune
which loves the brave." Frank Freidel, The Splendid Little War 3

-35-
colonial rule. See Treaty of Peace between the United States of

America and the Kingdom of Spain, Dec. 10, 1898, U.S.-Spain, 30

Stat. 1754. Thus commenced, in its place, a new period of

colonialism which has so far lasted one hundred and seven years.24

Notwithstanding Puerto Ricans' loss of these major political grants

from Spain, the transition to United States sovereignty was largely

seamless.25 This was at least partially due to the fact that

Spanish rule had been less than kind,26 but more importantly,

because of the prospect of joining a democratic nation that

promised the Puerto Rican people that it had come to "bestow upon

[Puerto Ricans] the immunities and blessings of [the] liberal

institutions of our government." Letter of Nelson Miles, Major-

General Commanding the U.S. Army to the Inhabitants of Porto Rico

(Nov. 5, 1898) in Annual Reports of the War Department for the

Fiscal Year Ended June 30, 1900 19-20 (1902). See generally Bailey

W. Diffie & Justine Whitfield Diffie, Porto Rico: A Broken Pledge

(1931).

(1958); Hugh Thomas, Cuba, The Pursuit of Freedom 404 (1971).
24
See generally José Trías Monge, Puerto Rico: The Trials of
the Oldest Colony in the World (1997).
25
U.S. troops were received in Ponce, Puerto Rico's second
largest city, by the municipal band playing the "Star Spangled
Banner," and General Nelson Miles, commanding general of the
expeditionary force wired Washington: "Please send any national
colors that can be spared, to be given to the different
municipalities." 1 Messages and Documents, 1898-1899.
26
See Antonio Salvador Pedreira, El Año Terrible del 87: Sus
Antecedentes y Sus Consecuencias, Ed. Edil, Rio Piedras (1974).

-36-
 In fact, the Treaty of Paris left to future action by

Congress what should be "[t]he civil rights and political status of

the native inhabitants of the territories . . . ceded to the United

States". Treaty of Peace, art. IX, para. 2, 30 Stat. 1754, 1759.

Thus, for the first time in American history, the United States

acquired territory without ipso facto granting its inhabitants

citizenship,27 and therefore, also contrary to its founding history,

the United States became a colonial nation. See Julius William

Pratt, America's Colonial Experiment 68 (1950). Immediately after

the invasion, Puerto Rico settled into a military government that

lasted until 1900, when Congress enacted the so-called Foraker Act.

Foraker Act, ch. 191, 31 Stat. 77 (1900) (codified as amended in

scattered sections of 48 U.S.C.). This statute established a civil

government composed almost totally of officials appointed by the

President. A local legislature was provided, but only its lower

house was elected by Puerto Rican residents. The Foraker Act

27
See Treaty Between the United States of America and the
French Republic, April 30, 1803, U.S.-Fr. art. III, 8 Stat. 200,
202 (Louisiana Purchase); Treaty of Amity, Settlement, and Limits,
Between the United States of America and His Catholic Majesty, Feb.
22, 1819, U.S.-Spain, art. 6, 8 Stat. 252 (acquisition of Florida);
Treaty of Guadalupe Hidalgo, Feb. 2, 1848, U.S.-Mex., art. VIII, 9
Stat. 922 (acquisition of California); Gadsen Treaty, Dec. 30,
1853, U.S.-Mex., art. V, 10 Stat. 1031 (acquisition of Arizona);
Treaty concerning the Cession of Alaska, Mar. 30, 1867, U.S.-Russ.,
art III, 15 Stat. 539 (acquisition of Alaska); Act of Apr. 30,
1900, ch. 1, § 4, cl. 339, 31 Stat. 141 (providing a government for
Hawaii). Hawaii was actually annexed in 1898, see Joint Resolution
To provide for annexing the Hawaiian Islands to the United States,
30 Stat. 750 (1898), two years before citizenship was granted.

-37-
declared these residents to be "citizens of Porto Rico."28 Foraker

Act § 7 ("[A]ll inhabitants continuing to reside [in Puerto Rico]

who were Spanish subjects on the eleventh day of April, eighteen

hundred and ninety-nine, and then resided in Porto Rico, and their

children born subsequent thereto, shall be deemed and held to be

citizens of Porto Rico, and as such entitled to the protection of

the United States . . . .") As such, they became "nationals" of

the United States.29 Almost immediately after the Foraker Act went

into effect, a challenge was made to its provisions allowing the

imposition of duties on goods imported into Puerto Rico from the

United States. It was claimed that this tax was contrary to the

Uniformity Clause of Article I, Section 8 of the Constitution.

28
Between 1900 and 1932, Puerto Rico was officially misspelled
as "Porto Rico," as a result of the incorrect spelling of the
Island's name in the English version of the Treaty of Paris in
1898. This incorrect spelling was thereafter used in the Foraker
Act in 1900, after which it took thirty-two years to persuade
Congress that "Porto" is Portuguese and that the correct Spanish
name should be restored. This was finally done by joint resolution
on May 17, 1932. Joint Resolution to change the name of "Porto
Rico" to "Puerto Rico," ch. 190, 47 Stat. 158 (1932).
29
A national, as distinguished from a citizen, who is "a
member of a political community, owing allegiance to the community
and being entitled to enjoy all its civil rights and protections,"
Black's Law Dictionary 261 (8th ed. 2004), is a person who owes
allegiance to a state but does not enjoy the full rights of a
citizen. See José A. Cabranes, Citizenship and the American
Empire, 127 U. Pa. L. Rev. 391 (1978); see also Gonzalez v.
Williams, 192 U.S. 1, 12-13 (1904); cf. Dred Scott v. Sanford, 60
U.S. (19 How.) 393, 404 (1857) (holding that "a negro of African
descent, [whose] ancestors were of pure African blood, and were
brought into this country and sold as slaves," id. at 397, was not
entitled to the privileges and immunities of the Constitution
accorded to citizens).

-38-
U.S. Const., art. I, § 8, cl. 1 ("all Duties, Imposts, and Excises

shall be uniform throughout the United States").

In the course of ruling upon this issue, the Supreme

Court, in 1901, decided the Insular Cases,30 wherein it sanctioned

Puerto Rico's colonial status ad perpetuam. There is no question

that the Insular Cases are on par with the Court's infamous

decision in Plessy v. Ferguson in licencing the downgrading of the

rights of discrete minorities within the political hegemony of the

United States. See Plessy v. Ferguson, 163 U.S. 537 (1896)

(holding that it was not a violation of the Equal Protection Clause

for a state law to segregate white and colored people in public

facilities provided "equal" alternatives were provided for each

race); see also Rubin Francis Weston, Racism in U.S. Imperialism:

The Influence of Racial Assumptions on American Foreign Policy,

1893-1946 15 (1972) ("Those who advocated overseas expansion faced

this dilemma: What kind of relationship would the new peoples have

to the body politic? Was it to be the relationship of the

Reconstruction period, an attempt at political equality for

dissimilar races, or was it to be the Southern

"counterrevolutionary" point of view which denied the basic

30
De Lima v. Bidwell, 182 U.S. 1 (1901); Goetze v. United
States, 182 U.S. 221 (1901); Dooley v. United States, 182 U.S. 222
(1901); Armstrong v. United States, 182 U.S. 243 (1901); Downes v.
Bidwell, 182 U.S. 244 (1901); Huus v. New York & Porto Rico
Steamship Co., 182 U.S. 392 (1901). See generally Juan R.
Torruella, The Supreme Court and Puerto Rico: The Doctrine of
Separate and Unequal (1985).

-39-
American constitutional rights to people of color? The actions of

the federal government during the imperial period and the relation

of the Negro to a status of second-class citizenship indicated that

the Southern point of view would prevail. The racism which caused

the relegation of the Negro to a status of inferiority was to be

applied to the overseas possessions of the United States.")

The Insular Cases, would today be labeled blatant

"judicial activism."31 See, e.g., Keenan D. Kmiec, The Origin and

Current Meanings of "Judicial Activism", Comment, 92 Cal. L. Rev.

1441, 1463-76 (2004) (describing judicial practices purported to be

indicative of judicial activism). They are anchored on theories of

dubious legal or historical validity, contrived by academics

interested in promoting an expansionist agenda.32 These theories

31
As Finely Peter Dunne, a popular political wit of the time
said about the Insular Cases, "[n]o matter whether th' constitution
follows th' flag or not, th' supreme court follows th' ilection
results." Finley Peter Dunne, Mr. Dooley's Opinions 26 (1901).
Whether the Constitution applied in the territories acquired as a
result of the Spanish-American War was, of course, central to the
Insular Cases, and a major issue in the 1900 elections, which were
won by McKinley and those who favored overseas territorial
expansion without extension of the Constitution. See La Feber,
"The Elections of 1900," in 3 History of American Presidential
Elections, 1789-1968 1877 (Arthur M. Schlesinger, Jr. ed., 1971).
32
See, e.g., Selden Bacon, Territory and the Constitution, 10
Yale L.J. 99 (1901); William W. Howe, The Law of Our New
Possessions, 9 Yale L.J. 379 (1900); Charles C. Langdell, The
Status of Our New Territories, 12 Harv. L. Rev. 365 (1899); Carman
F. Randolph, Constitutional Aspects of Annexation, 12 Harv. L. Rev.
291 (1898); James Bradley Thayer, Our New Possessions, 12 Harv. L.
Rev. 464, 467 (1899) ("Let me at once and shortly say that, in my
judgment, there is no lack of power in our nation -- of legal,
constitutional power, to govern these islands as colonies,
substantially as England might govern them . . . ."); cf. Simeon E.

-40-
in turn provided a platform that allowed a receptive bare plurality

of Justices33 to reach a result unprecedented in American

jurisprudence and unsupported by the text of the Constitution. See

generally James E. Kerr, The Insular Cases: The Role of the

Judiciary in American Expansionism (1982).

In fact, what precedent existed was contrary to the

premise underlying the Insular Cases, for in Dred Scott, Chief

Justice Taney had concluded:

There is certainly no power given by the
Constitution to the Federal Government to
establish or maintain colonies bordering on
the United States or at a distance, to be
ruled and governed at its own pleasure . . . .
[N]o power is given to acquire a Territory to
be held and governed permanently in that
character.

Dred Scott v. Sanford, 60 U.S. (19 How.) at 446.

This conclusion, however, presented no obstacle to

Justice Brown, who wrote the opinion of the Court in Downes v.

Bidwell, the leading Insular Case:

We are also of opinion that the power to
acquire territories by treaty implies, not

Baldwin, The Constitutional Questions Incident to the Acquisition
and Government by the United States of Island Territory, 12 Harv.
L. Rev. 393 (1899). See generally Frederic R. Coudert, The
Evolution of the Doctrine of Territorial Incorporation, 26 Colum.
L. Rev. 823 (1926).
33
In Downes, 182 U.S. 244, Justice Brown delivered the
judgment of the court. Justice White delivered a concurring
opinion joined by Justices Shirra and McKenna. Justice Gray also
delivered a concurring opinion. Chief Justice Fuller dissented,
with Justices Harlan, Brewer and Peckham joining. Justice Harlan
also filed a separate dissent.

-41-
 only the power to govern such territory, but
to prescribe upon what terms the United States
will receive its inhabitants, and what their
status shall be in what Chief Justice Marshall
termed the "American Empire."

Downes, 182 U.S. at 279.

Justice Brown goes on to say, in language that is tinged

by Plessy-like views:

It is obvious that in the annexation of
outlying and distant possessions grave
questions will arise from differences of race,
habits, laws and customs of the people . . .
which may require action on the part of
Congress that would be quite unnecessary in
the annexation of contiguous territory
inhabited only by people of the same race, or
by scattered bodies of native Indians.

Id. at 282. He concluded that:

A false step at this time might be fatal to
what Chief Justice Marshall called the
American Empire . . . . If those possessions
are inhabited by alien races, differing from
us in religion, customs, laws, methods of
taxation, and modes of thought, the
administration of government and justice,
according to Anglo-Saxon principles, may for a
time be impossible; and the question at once
arises whether large concessions ought not to
be made for a time, that ultimately our own
theories may be carried out . . . . We
decline to hold that there is anything in the
Constitution to forbid such action. We are
therefore of the opinion that the Island of
Porto Rico is a territory appurtenant and
belonging to the United States, but not a part
of the United States within the revenue
clauses of the Constitution . . . .

Id. at 286-87.

-42-
 Justice White's concurrence in Downes provided the

central support for the seminal "unincorporated territory" doctrine

for which the Insular Cases have become known. This doctrine

states that in the case of unincorporated territories -- that is,

those for which, at the time of acquisition, the United States did

not express an intention of incorporating into the Union -- only

those parts of the Constitution dealing with "fundamental" rights

apply. See Coudert, supra, note 32, at 832 (relating a

conversation with Justice White in which it was "evident that he

was much preoccupied by the danger of racial and social questions

of a very perplexing character and that he was quite as desirous as

Justice Brown that Congress should have a very free hand in dealing

with the new subject populations").

Chief Justice Fuller's dissent, which was joined by

Justices Harlan, Brewer and Peckham, and thus gathered the most

votes, followed a strict construction of the Constitution. It

rejected the plurality's conclusion as inconsistent with the

Constitution, because it

assumes that the Constitution created a
government empowered to acquire countries
throughout the world, to be governed by
different rules than those obtaining in the
original states and territories, and
substitutes for the present system of
republican government a system of domination
over distant provinces in the exercise of
unrestricted power.

Downes, 182 U.S. at 373 (Fuller, C.J., dissenting).

-43-
 Justice Harlan's dissent was equally forceful in pointing

out that:

Still less is it true that Congress can deal
with new territories just as other nations
have done or may do with their new territories
. . . . Monarchical and despotic governments,
unrestrained by written constitutions, may do
with newly acquired territories what this
government may not do consistently with our
fundamental law. To say otherwise is to
concede that Congress may, by action taken
outside of the Constitution, engraft upon our
republican institutions a colonial system such
as exists under monarchical governments.
Surely such a result was never contemplated by
the fathers of the Constitution . . . . The
idea that this country may acquire territories
anywhere upon the earth, by conquest or
treaty, and hold them as mere colonies or
provinces,--the people inhabiting them to
enjoy only such rights as Congress chooses to
accord to them,-- is wholly inconsistent with
the spirit and genius, as well as with the
words, of the Constitution.

Id. at 380. Justice Harlan went on to say, in part to answer the

racial overtones of the plurality, that:

Whether a particular race will or will not
assimilate with our people, and whether they
can or cannot with safety to our institutions
be brought within the operation of the
Constitution, is a matter to be thought of
when it is proposed to acquire their territory
by treaty. A mistake in the acquisition of
territory, although such acquisition seemed at
the time to be necessary, cannot be made the
ground for violating the Constitution or
refusing to give full effect to its
provisions. The Constitution is not to be
obeyed or disobeyed as the circumstances of a
particular crisis in our history may suggest
the one or the other course to be pursued . .

-44-
 . . The Constitution is supreme over every
foot of territory, wherever situated, under
the jurisdiction of the United States, and its
full operation cannot be stayed by any branch
of the government in order to meet what some
may suppose to be extraordinary emergencies.
If the Constitution is in force in any
territory, it is in force there for every
purpose embraced by the objects for which the
government was ordained.

Id. at 384-85.

Although decided by an exiguous plurality of five votes

to four, and based on dubious constitutional foundations, the

Insular Cases became an article of faith in American constitutional

dogma, with far-reaching consequences on the lives of the millions

of persons whom they impacted in very fundamental ways. See

Torruella, supra note 30, at 117-266.

B. United States citizenship for the residents of Puerto Rico

In the aftermath of the Insular Cases, the United States

settled into the business of governing its far-flung colonial

empire and emerged from its isolationist cocoon into the world of

power politics. See generally Foster Dulles, America's Rise to

World Power, 1898-1954 (1955). In the meantime, between 1901 and

1917, a total of twenty one bills were presented in Congress

proposing the grant of U.S. citizenship to Puerto Rico's

inhabitants.34 During this interregnum between the Insular Cases

and the 1917 passage of the Jones Act, ch. 145, 39 Stat. 951 (1917)

34
For a full account see Cabranes, supra note 29.

-45-
-- which granted U.S. citizenship to the residents of Puerto Rico,

id. § 5 -- the Supreme Court decided Rassmussen v. United States,

197 U.S. 516 (1905). Rassmussen provides an important backdrop to

the grant of citizenship to Puerto Ricans because in it, the

Supreme Court seemed to link the incorporation of a territory into

the United States (and thus full application of the Constitution)

to the granting of citizenship to the inhabitants of a territory.

See id. at 522 (finding grant of citizenship to residents of newly

acquired territory of Alaska served "to express the purpose to

incorporate acquired territory into the United States.").

There was therefore great expectation in Puerto Rico when

Congress passed the Jones Act in 1917, which, in addition to

providing Puerto Ricans with an elected bicameral legislature,

granted U.S. citizenship to the residents of Puerto Rico.35 These

hopes were soon deflated by the Supreme Court in Balzac v. Porto

Rico, 258 U.S. 298 (1922), in which Chief Justice William Howard

Taft,36 at this point writing for a unanimous court, held that no

35
For an in-depth account of the events leading up to the
passage of the Jones Act, particularly the acrimonious debates that
preceded its passage, see Cabranes, supra note 29, at 471-85.
36
Chief Justice Taft who, of course, had been President of the
United States from 1909 to 1912, had a long and somewhat fractious
experience with the United States' newly acquired colonies. He did
not need to be influenced by academics on questions of expansionism
or how to deal with the colonies. In 1900, he became the first
civilian governor of the Philippine Islands at a time when the
Aguinaldo Insurrection -- a war that led to thousands of U.S.
casualties and over 100,000 civilian deaths, many more than in the
entire Spanish-American War -- was in full swing. See generally
Brian McAllister Linn, The Philippine War, 1899-1902 (2000). In

-46-
right to trial by jury attached to Balzac's new status as a U.S.

citizen because, even after the Jones Act, Puerto Rico remained an

unincorporated territory with only "fundamental rights" under the

Constitution applying. The right to trial by jury was not, the

Court reaffirmed, "a fundamental right." Id. at 309-10 (quoting

Dorr v. United States, 195 U.S. 138, 148 (1904). Contra Duncan v.

Louisiana, 391 U.S. 145, 154 (1968) (holding that trial by jury is

a fundamental right).

What rights did U.S. citizenship give Puerto Ricans? "It

enabled them to move into the continental United States," and upon

becoming residents thereof, to enjoy the rights of other citizens.

Balzac, 258 U.S. at 308. It was locality that counted, said Chief

Justice Taft, "not the status of the people who live in it." Id.

at 309. In language reminiscent of the racially-tinged

asseverations of Justice Brown in Downes, Chief Justice Taft went

on to say:

1904, while Secretary of War under President Theodore Roosevelt,
Taft oversaw not only the Philippines, but also Cuba and Puerto
Rico. In 1906, he was sent to Cuba as its provisional governor
under the Platt Amendment to the Cuban Constitution, which allowed
the United States to intervene in Cuban affairs during times of
"unrest." However, it was during his time as President that Taft
became openly disenchanted with Puerto Rico and its inhabitants as
a result of the so-called Budget Crisis of 1909. See Truman R.
Clark, President Taft and the Puerto Rican Appropriations Crisis of
1909, 26 The Americas 152-70 (1969). President Taft accused
Puerto Rico's elected leaders of irresponsibility and political
immaturity, and suggested that too much power had been given to
Puerto Ricans "for their own good." Message from President Taft to
Congress, S. Rep. No. 61-10, at 5. See generally Henry F. Pringle,
The Life and Times of William Howard Taft (1939).

-47-
 The jury system postulates a conscious duty of
participation in the machinery of justice
which it is hard for people not brought up in
fundamentally popular government at once to
acquire . . . . Congress has thought that a
people like the Filipinos, or the Porto
Ricans, trained to a complete judicial system
which knows no juries, living in compact and
ancient communities, with definitely formed
customs and political conceptions, should be
permitted themselves to determine how far they
wish to adopt this institution of Anglo-Saxon
origin, and when.

Id., at 310.

Rassmussen was distinguished:

It is true that in the absence of other and
countervailing evidence, a law of Congress . .
. declaring an intention to confer political
and civil rights on the inhabitants of the new
lands as American citizens, may be properly
interpreted to mean an incorporation of it
into the Union, as in the case of Louisiana
and Alaska. This was one of the chief grounds
[for the holding in Rasmussen] . . . . But
Alaska was a very different case from that of
Porto Rico. It was an enormous territory,
very sparsely settled, and offering
opportunity for immigration and settlement by
American citizens. It was on the American
continent and within easy reach of the then
United States. It involved none of the
difficulties which incorporation of the
Philippines and Porto Rico presents . . . .

Id. at 309 (internal citation omitted).

This is a prime example of the double standard that has

been used by the Court, and concomitantly by Congress, in

determining the rights to which the U.S. citizens of Puerto Rico

are entitled. Unfortunately, it is one which has been repeated

since Balzac was decided. See Califano v. Gautier Torres, 435 U.S.

-48-
1 (1978) (upholding Social Security Act provisions denying benefits

to U.S. citizens who move to Puerto Rico); Harris v. Rosario, 446

U.S. 651 (1980) (upholding statute providing less federal financial

assistance to Puerto Rico than other states to aid families with

dependent children).

The Court's rulings in Kinsella v. Krueger, 351 U.S. 470

(1956), reh'd granted 352 U.S. 901 (1956), and Reid v. Covert, 351

U.S. 487 (1956), reh'd granted, 352 U.S. 901 (1956), illustrate

this point even more clearly. Although, in denying Puerto Ricans

the right to trial by jury in Balzac, Chief Justice Taft

unequivocally stated that "[i]t is locality that is determinative

of the application of the Constitution in such matters as judicial

procedure, and not the status of the people who live in it," 258

U.S. at 309, the Supreme Court nevertheless chose to overlook this

rule when deciding Kinsella and Reid in the aftermath of the Second

World War.

Both cases involved challenges to the application of the

Uniform Code of Military Justice to women who were tried, convicted

and sentenced by court martial for murdering their serviceman

husbands, one in Japan (Kinsella), and the other in England (Reid).

Neither had the benefit of indictment by grand jury or trial before

a petit jury. On the first round, the Court, relying on Balzac,

affirmed the validity of both convictions. Kinsella, 351 U.S. at

-49-
474-80; Reid, 351 U.S. at 490-91 (relying on Kinsella as

establishing validity of military jurisdiction).

This outcome was followed by much public stirring, an

unsurprising result, considering the number of civilian U.S.

citizens who were then attached to the military overseas. The

public outcry undoubtedly contributed to their being reheard almost

immediately, early in the Court's next term.

The plurality opinion, reversing the prior outcome, was

written by Justice Black. He announced that the reliance placed on

the Insular Cases in the first Kinsella opinion was "misplaced."

Reid v. Covert, 354 U.S. 1, 13 (1957). In language reminiscent of

Justice Harlan's dissents in the Insular Cases, Justice Black

stated:

The 'Insular Cases' can be distinguished from
the present cases in that they involved the
power of Congress to provide rules and
regulations to govern temporarily territories
with wholly dissimilar traditions and
institutions whereas here the basis for
governmental power is American citizenship . .
. . The concept that the Bill of Rights and
other constitutional protections against
arbitrary government are inoperative when they
become inconvenient or when expediency
dictates otherwise is a very dangerous
doctrine and if allowed to flourish would
destroy the benefit of a written Constitution
and undermine the basis of our government.

Id. at 14 (emphasis added).

The new outcome in Kinsella and Reid, as well as the

reversal of Plessy by Brown v. Board of Education, 347 U.S. 483

-50-
(1954), accentuate the realpolitik of the civil and political

rights of the United States citizens who reside in Puerto Rico, for

it is because of the democratic deficit in the Puerto Rico-United

States relationship that Puerto Rico enters its second century of

its colonial condition with the United States without any

resolution of this conundrum in sight.37 Stagnation is inevitable,

for there is a political vacuum in the Puerto Rico-United States

linkage. No effective political pressure can be exercised by the

subjects of this colonial relationship on the national political

institutions with power to solve the problem. It is precisely

because this discrete population of United States citizens is kept

in a voteless state by the national political institutions that

have "plenary powers" over Puerto Rico that a "political solution"

is not a realistic option. The opinion of U.S. voters affected by

Kinsella and Reid could be heard and felt in Washington, as could

that of African-Americans after Plessy, even if they were a

numerical minority, because they had a significant political

presence that was bound to be listened to sooner or later. There

can be little doubt that this political clout was transformed into

a judicial result. Cf. supra note 31. Not so with Puerto Rico's

U.S. citizens. They have no effective way of influencing the

37
The debate over what status Puerto Rico ought to have with
respect to the United States is, of course, hotly contested. The
right to vote will benefit all U.S. citizens residing in Puerto
Rico, regardless of their position on status since it will give
them a meaningful political voice until that issue is resolved.

-51-
political branches of the national government. Puerto Rico's lone

non-voting representative in Congress is a prime example of Puerto

Rico's political defenselessness. The political pressure that can

be exercised by those who took Chief Justice Taft's advice, and

moved to the Mainland, is so diluted in the general population of

the United States as to make any political pressure by them

exiguous.

This total lack of political power is a fact that is

glossed over by the majority when it righteously dictates that

Puerto Ricans' "right to vote in presidential elections is

fundamentally a political [issue] and must be [achieved] through

political means." Maj. op. at 13. To what "political means" is

the majority referring? Political means are precisely what the

U.S. citizens of Puerto Rico lack, and cannot create out of thin

air as if by alchemy.

Not only do the national political branches lack

incentive to act, but, as illustrated by the majority's views,38

38
Although I place Judge Lipez's concurrence in a separate
category, I disagree with his conclusion that we lack jurisdiction
to declare the Congress has failed to take any action to comply
with its international obligations. This failure affects the
"rights and legal relations of an interested party," the U.S.
citizens in question, "whether or not further relief is or could be
sought." 28 U.S.C. § 2201(a). There is nothing hypothetical about
plaintiffs' national disenfranchisement. We have the authority to
acknowledge that condition, and Congress' failure to take any
action to correct it despite having committed, under binding
international law, to do so. Judge Lipez misstates the issues as
framed by my dissent when he focuses on Congress' failure "to
either admit[] Puerto Rico as a state or propose[] . . . [a
constitutional] amendment." Supra at 21 (Lipez, J., concurring).

-52-
this disincentive has also been manifested in the Third Branch,

which, if the truth be told, laid the groundwork for this state of

affairs with its decisions in the Insular Cases and Balzac, and

continues to perpetuate the inherent inequalities thus created.

The Supreme Court therefore has every reason to

reconsider the Insular Cases and Balzac. They are the product of

an era which is a blot on our national and judicial history. The

basis upon which they were premised -- that the United States could

hold territories and their inhabitants in a colonial status ad

infinitum -- was unprecedented and unauthorized by the

Constitution. The interpretation given by the Insular Cases and

Balzac to the Constitution permits the perpetuation, without

limitation, of a class of citizens unequal in rights to the rest of

the body politic, an anachronism that is unsupportable morally,

logically or legally.

Furthermore, the underpinnings to this doctrine have

since been eroded. If there ever were a justification for their

outcome based on the expediency of the historical epoch during

which they were decided, this justification can no longer be

sustained. Since the Insular Cases and Balzac were decided, Plessy

Although those are among the remedial options available, it makes
no difference whether it be these or other alternatives that
Congress adopts. The only unavailable option is to do nothing,
because that is a violation of an international pledge which has
become United States law. Failure to act has legal consequences
that create a case and controversy legally cognizable by a
declaratory judgment even if relief is not available.

-53-
has been reversed by Brown, making racial discrimination legally

and ethically unacceptable. Discrimination on the basis of

locality makes as much sense as such opprobrious conduct based on

race. Moreover, the idea, expressed in Balzac, that the right to

trial by jury is not a fundamental constitutional right is no

longer the law of the land. See Duncan, 391 U.S. at 154. Balzac's

ruling has therefore ceased to be the law of the land.

Puerto Rico is part of the First Circuit. An Article III

District Court sits there, providing nearly one-third of the

appeals filed before this court, which sits in Puerto Rico at least

twice a year, also in the exercise of Article III power. One

active judge of this court resides in Puerto Rico and participates

in cases that are often of national importance, but is nonetheless

disenfranchised from voting for national offices. How can the

Constitution be applied in such a Balkanized, arbitrary and

irrational manner? See Downes, 182 U.S. at 374 (Fuller, C.J.,

dissenting) ("[T]he language of the Constitution is too plain and

unambiguous to permit its meaning to be thus influenced.").

The proposition that Puerto Rico "belong[s] to . . . but

[is] not a part of the United States," Downes, 181 U.S. at 287,

like the "separate but equal" concept endorsed in Plessy, belongs

to the Dark Ages of American constitutional law and should be

relegated to a period in our history best forgotten.

-54-
 II.

A. The right to vote is a fundamental constitutional right

The right to vote is a fundamental right, which our

Constitution guarantees to all citizens. See, e.g., Bush v. Gore,

531 U.S. 98, 104 (2000); Burson v. Freeman, 504 U.S. 191, 198

(1992); Tashjian v. Republican Party, 479 U.S. 208 (1986); Buckley

v. Valeo, 424 U.S. 1, 49 n.55 (1976); Lubin v. Panish, 415 U.S.

709, 721 (1974); Bullock v. Carter, 405 U.S. 134 (1972); Phoenix v.

Kolodziejski, 399 U.S. 204 (1970); Harper v. Virginia State Bd. of

Elections, 383 U.S. 663, 667 (1966); Reynolds v. Sims, 377 U.S.

533, 561-562 (1964); Wesberry v. Sanders, 376 U.S. 1, 7 (1964).

No right is more precious in a free country
than that of having a voice in the election of
those who make the laws under which, as good
citizens, we must live. Other rights, even
the most basic, are illusory if the right to
vote is undermined. Our Constitution leaves no
room for classification of people in a way
that unnecessarily abridges this right.

Wesberry, 376 U.S. at 17-18. "[H]istory has seen a continuing

expansion of the scope of the right of suffrage in this country.

The right to vote freely for the candidate of one's choice is of

the essence of a democratic society, and any restrictions on that

right strike at the heart of representative government." Reynolds

v. Sims, 377 U.S. 533, 555 (1964) (footnote omitted).

Fundamental voting rights protections should apply fully

to U.S. citizens residing in Puerto Rico. Even under the notorious

Insular Cases, it has been held that the Constitution extends

-55-
fundamental rights to Puerto Rico. See Balzac, 258 U.S. at 312-13.

The Fifth Amendment is fully applicable to the actions of the U.S.

government in Puerto Rico. Cf. Examining Bd. of Engineers v.

Flores de Otero, 426 U.S. 572 (1976). Although not identical to

that of the Fourteenth Amendment, an equal protection component is

part of the due process clause of the Fifth Amendment, and serves

to constrain the United States. See Bolling v. Sharpe, 347 U.S.

497, 498-99 (1954) (holding that despite lack of explicit equal

protection clause, "discrimination may be so unjustifiable as to be

violative of due process"). The utter failure of the government of

the United States to take any action to protect its citizens in

Puerto Rico from continued national disenfranchisement is a

violation of due process and equal protection under the Fifth

Amendment of the Constitution.

B. International law

In addition to the right to vote enshrined in its

Constitution, the United States is also bound, both domestically

and internationally, by guarantees of voting rights found in

international law. Historically referred to as "the law of

nations," international law incorporates both treaty law and

customary international law. Restatement (Third) of Foreign

Relations Law of the United States § 102 (2004) ("Restatement").

Thus conceived, international law has been an integral part of our

constitutional and legal system since the founding of our Nation.

-56-
See Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2764 (2004) ("For two

centuries we have affirmed that the domestic law of the United

States recognizes the law of nations."); The Paquete Habana, 175

U.S. 677, 700 (1900) ("International law is part of our law, and

must be ascertained and administered by the courts of justice of

appropriate jurisdiction, as often as questions of right depending

upon it are duly presented for their determination."); The Nereide,

13 U.S. (9 Cranch) 388, 423 (1815) ("[T]he Court is bound by the

law of nations which is part of the law of the land."). The

importance placed on international law, from the founding of the

United States, as a component of the nation's legal system is

evident in its Constitution, which authorized Congress "[t]o define

and punish Piracies and Felonies committed on the high Seas, and

Offenses against the Law of Nations," U.S. Const. art. I, § 8, cl.

10, granted the President the power, "by and with the Advice and

Consent of the Senate, to make Treaties," id. art. II, § 2, cl. 2,

and extended the Article III authority of the federal judiciary to

"all Cases, in Law and Equity, arising under this Constitution, the

Laws of the United States,39 and Treaties made, or which shall be

made," id. art. III, § 2, cl. 1. It also provided that "[t]his

Constitution, and the Laws of the United States which shall be made

39
Customary international law is part of the "Law[] of the
United States" within the meaning of Article III. See, e.g., Sosa,
124 S.Ct. at 2764 ("[T]he domestic law of the United States
recognizes the law of nations."); see also Restatement § 111, cmt.
e; Louis Henkin, International Law as Law in the United States, 82
Mich. L. Rev. 1555, 1566 (1982).

-57-
in Pursuance thereof; and all Treaties made, or which shall be

made, under the Authority of the United States, shall be the

supreme Law of the Land; and the Judges in every state shall be

bound thereby, any Thing in the Constitution or Laws of any State

to the Contrary notwithstanding." Id. art. VI, cl. 2. In light of

the historical significance of international law, the Supreme Court

has recently recognized that "[i]t would take some explaining to

say now that federal courts must avert their gaze entirely from any

international norm intended to protect individuals." Sosa, 124

S.Ct. at 2764-65.

We look to the treaties and conventions to which the

United States is a party, both to determine whether they impose a

direct obligation on the United States that is relevant to

plaintiffs-appellants' claims, and, in combination with widely-

observed legal norms and practices among the nations of the world

today, as evidence of binding customary international law that

would support plaintiffs-appellants' claims. See Restatement § 102

(identifying sources of customary international law); see also id.

§ 103 (identifying secondary evidence of international law).

The United States has participated in several

international instruments relevant to the issue before us: (1) the

Universal Declaration of Human Rights ("UDHR") G.A. Res. 217 A

(III), U.N. Doc. A/810 (1948); (2) the American Declaration of the

Rights and Duties of Man ("American Declaration"), O.A.S. Res. XXX

-58-
(1948), O.A.S. Off. Rec. OEA/Ser. L/V/I.4 Rev. (1965) (3) the

Inter-American Democratic Charter of the Organization of American

States ("IADC"), 28th Spec. Sess., OAS Doc. OEA/Ser. P/AG/RES.1

(XXVIII-E/01) (OAS General Assembly) (Sept. 11, 2001), and (4) the

International Covenant on Civil and Political Rights ("ICCPR"),

opened for signature Dec 16, 1966, 999 U.N.T.S. 171.40

In 1948, the member states of the General Assembly of the

United Nations, including the United States, proclaimed the UDHR,

which states:

1. Everyone has the right to take part in the
government of his country, directly or through
freely chosen representatives.

. . . [and that]

3. The will of the people shall be . . .
expressed in periodic and genuine elections
which shall be by universal and equal suffrage
. . . .

UDHR art. 21.

Although the Supreme Court has ruled that "the [UDHR]

does not of its own force impose obligations as a matter of

international law," Sosa, 124 S. Ct. at 2767, it has nevertheless

recognized its "moral authority," id., and has cited to its

40
In addition, the American Convention of Human
Rights("ACHR"), adopted in 1969 and signed by twenty-six countries
(not including the United States) between 1969 and 2000, provides
in Article 23(1) that "every citizen shall enjoy . . . rights and
opportunities: . . . to vote . . . in genuine periodic elections,
which shall be by universal and equal suffrage . . . ." ACHR,
opened for signature Nov. 22, 1969, 1144 U.N.T.S. 123 (entered into
force Jul. 18, 1978).

-59-
provisions on several occasions. See Knight v. Florida, 528 U.S.

990, 996 (1999) (Breyer, J., dissenting) (noting U.N. Human Rights

Committee decisions that a ten-year delay between death sentence

and execution is not necessarily a violation of UDHR as informative

precedent in Eighth Amendment case); Dandridge v. Williams, 397

U.S. 471, 520 n.14 (1970) (citing UDHR Article 25 as informative

"[o]n the issue of whether there is a 'right' to welfare

assistance"); Zemel v. Rusk, 381 U.S. 1, 14 n.13 (1965) (citing

UDHR Article 13 in discussion of scope of due process); Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 161 n.16 (1963) (noting, in

rejecting revocation of U.S. citizenship as consequence of

remaining abroad to evade military service, the UDHR's guarantee

"of the right of every citizen to retain a nationality"); Am. Fed'n

of Labor v. Am. Sash & Door Co., 335 U.S. 538, 549 n.5 (1949)

(Frankfurter, J., concurring) (citing UDHR provisions on freedom

from mandatory association in context of discussing foreign

standards of labor law).

Beyond the UDHR, Article XX of the American Declaration,

agreed to in 1948 by all of the member States of the Organization

of American States, including the United States, provides that:

"[e]very person having legal capacity is entitled to participate in

the government of his country, directly or through his

representatives, and to take part in popular elections . . . ."

-60-
 In 2001, the United States joined thirty-four other

countries in this hemisphere in adopting the IADC. Coincidentally,

this occurred at a Special General Assembly of the Organization of

the American States meeting in Lima, Peru on the fateful day of

September 11, 2001. The importance of this agreement to the United

States can be gauged by what took place there and by the actions of

Secretary of State Collin Powell, who headed the U.S. delegation at

that meeting. After thanking the gathered delegates for their

expressions of solidarity and condolences for the terrorist attacks

that had occurred that day against the United States homeland, the

Secretary stated:

It is important that I remain here for a bit
longer in order to be part of the consensus of
this new charter on democracy. That is the
most important thing that I can do before
departing to go back to Washington, D.C. and
attend the important business that awaits me
and my other colleagues . . . . I hope we can
move the order of business to the adoption of
the Charter because I very much want to
express the United States' commitment to
democracy in this hemisphere . . . . And we
unite behind it as democratic nations
committed to individual liberties . . . .

Secretary Colin Powell, Statement at the Special General Assembly

of the Organization of American States (Sep. 11, 2001), available

at http://www.state.gov/secretary/rm/2001/5656.htm. Thereafter,

the Special Assembly adopted the IADC, which among other relevant

provisions states:

-61-
 Article 2

The effective exercise of representative
democracy is the basis for the rule of law and
constitutional regimes of the member states

. . . .

Article 3

Essential elements of representative democracy
include, inter alia . . . the holding of
periodic, and fair elections based on secret
balloting and universal suffrage as an
expression of the sovereignty of the people

. . . .

Article 6

It is the right and responsibility of all
citizens to participate in decisions relating
to their own development. This is also a
necessary condition for the full and effective
exercise of democracy . . . .

Prior to the approval of the IADC, however, the United

States had already entered into another international agreement

whose provisions are of singular importance to the issue before us.

By virtue of the ICCPR, which came into force on March 23, 1976,

and was ratified by the Senate on April 12, 1992, see 138 Cong.

Rec. S4781, S4783, the United States committed, in clear and

unambiguous terms, that "[e]very citizen shall have the right and

the opportunity . . . [t]o vote . . . at genuine periodic elections

which shall be by universal and equal suffrage . . . ." ICCPR art.

25. Furthermore, in ratifying Article 2, Paragraph 1, the United

States agreed that it would "undertake[] to respect and to ensure

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to all individuals within its territory and subject to its

jurisdiction the rights recognized in the present Covenant . . .

without distinction of any kind . . . ." Most important, and

central to the issue before us, the signatory nations committed

themselves that:

[W]here not already provided for by existing
legislati[on] . . . each State Party . . .
undertakes to take necessary steps, in
accordance with its constitutional processes
and with the provisions of the present
Covenant, to adopt such legislation or other
measures as may be necessary to give effect to
the rights recognized in the present Covenant.

Id. art. 2, para. 2 (emphasis added).41

We turn now to an examination of the United States'

obligations under these international instruments and the customary

international law to which they contribute.

1. Treaty obligations

By 1992, 103 nations had become parties to the ICCPR,

with another five, including the United States, having signed. On

April, 12, 1992, as required by the Constitution, two-thirds of the

United States Senate voted in favor of ratifying the ICCPR. 138

41
The United States further agreed to an enforcement mechanism
for the realization and security of the rights established in the
ICCPR. Each State Party undertook "[t]o ensure that any person
whose [ICCPR] rights or freedoms . . . are violated shall have an
effective remedy," to ensure that these rights would be "determined
by competent judicial, administrative or legislative authorities,
or by any competent authority provided for by the legal system of
the State," and that "the possibilities of judicial remedy" would
be developed. Id. art. 2, para. 3 (emphasis added).

-63-
Cong. Rec. S4781, S4783. Under Article VI, Clause 2 of the

Constitution, a treaty thus ratified has equal status to an act of

Congress. That is, a treaty is law of the United States. See,

e.g., Jordan J. Paust, International Law as Law of the United

States 99-105, 120 (2d ed. 2002). As with statutes, a later treaty

supercedes inconsistent earlier-enacted statute, provided the

treaty provision on the subject is self-executing. Whitney v.

Robertson, 124 U.S. 190, 194 (1888).

When it ratified the ICCPR, however, the Senate also

issued a declaration to the effect that the substantive provisions

of the ICCPR would not be self-executing.42 138 Cong. Rec. at

42
The Senate also made actual reservations under which its
obligations to comply with various provisions of the ICCPR were
limited. See 138 Cong. Rec. S4781, S4783 (stating, inter alia,
that the United States will not take any steps to comply with ICCPR
Article 20 that would infringe on the right of free speech and
association; reiterating the applicability of capital punishment
for adults and minors; deeming ICCPR Article 7 prohibitions on
"cruel, inhuman or degrading treatment or punishment" to apply only
to treatment deemed "cruel and unusual" under domestic
constitutional law; declining to adhere to ICCPR Article 15,
Paragraph 1; and reserving the right to treat juveniles, under
certain circumstances, as adults, notwithstanding the provisions
of ICCPR Article 10, Paragraphs 2(b) and 3, and Article 14,
Paragraph 4).
In contrast, no reservations or other limitations to the
specific obligations contained in Article 25 were made, aside from
the declaration of non-self-execution applicable to all substantive
articles of the ICCPR. Id. This is indicative of the Senate's
intent to accept the obligation of full compliance with that
provision of the ICCPR. See also id. at S4784 (adding the
Understanding "[t]hat the United States understands that this
Covenant shall be implemented by the Federal Government to the
extent that it exercises legislative and judicial jurisdiction over
the matters covered therein, and otherwise by the state and local
governments," and that "the Federal Government shall take measures
appropriate to the Federal system" to ensure that "state or local

-64-
S4784. I wholeheartedly agree with Judge Howard's conclusion that

this declaration is not binding on this court, and that further

inquiry to determine whether the ICCPR is indeed non-self-executing

is required. See infra at 89 (Howard, J., dissenting). I will not

attempt to restate his sound reasoning here. However, even if this

approach is not accepted, this court is not, as explained below,

entirely without power to act.

If the ICCPR were not self-executing, the treaty, qua

treaty, could not be invoked by a private citizen as the basis for

a court of the United States to order that citizen's full

participation in the electoral processes of the United States. See

Sosa, 124 S. Ct. at 2767 (recognizing the internationally-binding

nature of the ICCPR, but observing that "the United States ratified

the Covenant on the express understanding that it was not self-

executing and so did not itself create obligations enforceable in

the federal courts").43 That is, a court of the United States could

not use the requirement, established in Article 25 of the ICCPR,

governments may take appropriate measures for the fulfillment of
the Covenant" for matters under their jurisdiction) (emphasis
added); Exec. Order No. 13,107, 63 Fed. Reg. 68,991 (Dec. 10, 1998)
("It shall be the policy and practice of the Government of the
United States, being committed to the protection and promotion of
human rights and fundamental freedoms, fully to respect and
implement its obligations under international human rights treaties
to which it is a party, including the ICCPR . . . .").
43
As Judge Howard notes, this statement from Sosa is not at
odds with the conclusion that the non-self-execution declaration is
not, itself, binding on the courts. See infra at 105, n.63
(Howard, J., dissenting).

-65-
that "[e]very citizen shall have the right and opportunity . . . to

vote," as the basis for enforcing an individual's right to

participate in the electoral processes of the United States, until

such time as there has been municipal implementation of Article 25

by the enactment of intra-national legislation or constitutional

provision. Neither could the courts of the United States order

that the legislative branch of government live up to the

obligations undertaken by the United States to "adopt such

legislation or other measures as may be necessary to give effect to

[the right to vote established in Article 25 of the ICCPR]." ICCPR

art. 2, para. 2. Such an intromission would violate the

constitutional principle of separation of powers. See Smith & Lee

Assocs., Inc. v. City of Taylor, Mich., 102 F.3d 781, 797 (6th Cir.

1996) ("Federal Courts do have jurisdiction and power to pass upon

the constitutionality of Acts of Congress, but we are not aware of

any decision extending this power in Federal Courts to order

Congress to enact legislation. To do so would constitute

encroachment upon the functions of a legislative body and would

violate the time-honored principle of separation of powers of the

three great departments of our Government."). The majority's

contentions regarding the trumping of treaty provisions by the

Constitution, maj. op. at 7, are thus inapposite, as I recognize

the validity of this hierarchy and am not in any way proposing its

violation.

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 That said, however, it is an undisputed fact that,

contrary to the requirements of Article 2, Paragraph 2 of the

ICCPR, the United States has taken no steps, to date, to implement

the obligations undertaken therein. More directly on point, the

United States has not enacted any legislation, passed any

constitutional provision, or even put in motion any process

directed at nationally enfranchising the nearly four million United

States citizens residing in Puerto Rico, notwithstanding its

ratification of the ICCPR and the Senate's acknowledgment "[t]hat

the United States understands that this Covenant shall be

implemented by the Federal Government." 138 Cong. Rec. S4781,

S4784 (emphasis added). Accordingly, the United States is not in

compliance with the binding obligations it undertook by signing and

ratifying the ICCPR. The majority does not and cannot refute this

undeniable fact, and, as explained below, the potentially non-self-

executing nature of the ICCPR does not preclude our ability to make

a declaration to that effect, see infra Part III.C.

2. Customary international law

Customary international law constitutes "those clear and

unambiguous rules by which States universally44 abide, or to which

44
The universality requirement does not imply that compliance
with customary international law norms be perfect. "States need
not be universally successful in implementing the principle in
order for a rule of customary international law to arise. If that
were the case, there would be no need for customary international
law. But the principle must be more than merely professed or
aspirational." Flores, 406 F.3d at 80; see also Restatement § 102,

-67-
they accede, out of a sense of legal obligation and mutual concern

. . . ." Flores v. S. Peru Copper Corp., 406 F.3d 65, 84 (2d Cir.

2003). The norm in question must be "specific, universal and

obligatory," In re Estate of Ferdinand Marcos, Human Rights Litig.,

25 F.3d 1467, 1475 (9th Cir. 1994), and must be a matter of

"mutual, and not merely several concern . . . ." Flores, 406 F.3d

at 81 (quoting Filartiga v. Peña-Irala, 630 F.2d 876, 888 (2d Cir.

1980)).

Although the test is demanding, the content of customary

international law is not fixed and immutable. See Sosa, 124 S. Ct.

at 2761-62 ("[W]e think courts should require any claim based on

the present-day law of nations to rest on a norm of international

character accepted by the civilized world and defined with a

specificity comparable to the features of the 18th-century

paradigms we have recognized."); Filartiga, 630 F.2d at 881 ("[I]t

is clear that courts must interpret international law not as it was

in 1789, but as it has evolved and exists among the nations of the

world today.") (citing Ware v Hylton, 3 U.S. (3 Dall.) 199 (1796)

(distinguishing "ancient" from "modern" law of nations)). We look

to international instruments setting forth "clear and unambiguous

rules," Flores, 406 F.3d at 84, and to other indications of

widespread compliance motivated by a sense of legal obligation, by

the nations of the world to establish the content of customary

cmt. b.

-68-
international law. See id. at 82-84; Restatement § 102 (2)

("Customary international law results from a general and consistent

practice of states followed by them from a sense of legal

obligation.").

The ICCPR, the UDHR, the American Declaration, the ACHR

and the IADC are all evidence of the emergence of a norm of

customary international law with an independent and binding

juridical status. See Restatement § 102(3) ("International

agreements . . . may lead to the creation of customary

international law when such agreements are intended for adherence

by states generally and are in fact widely accepted."). The right

to equal political participation required by these instruments, as

outlined above, is clear and unambiguous. The ICCPR, for example,

admits of no doubt when it states that "[e]very citizen shall have

the right and the opportunity . . . [t]o vote . . . at genuine

periodic elections which shall be by universal and equal suffrage

. . . ." ICCPR art. 25. The universal acceptance of this right to

equal political participation is demonstrated by the prevalence of

the right in a variety of multinational and regional agreements,

and by the broad acceptance of those agreements by the countries of

the world. Currently, for example, 163 nations of the 191-member

United Nations are parties to the ICCPR, with an additional seven

signatories that have not yet ratified the treaty.

-69-
 The right to equal political participation, as evidenced

by these international treaties, covenants, and declarations, is

reinforced by what has become the overwhelming practice worldwide.

See, e.g., Enrique Lagos & Timothy D. Rudy, In Defense of

Democracy, 35 U. Miami Inter-Am. L. Rev. 283, 288-89 (2004)

("Democracy as an international law norm has been 'emerging' for

some time, especially in the western hemisphere."); Fernando R.

Tesón, "Changing Perceptions of Domestic Jurisdiction and

Intervention," in Beyond Soverignty: Collectively Defending

Democracy in the Americas 35 (Tom Farer ed., 1996) ("[t]here can be

little doubt that a principle of democratic rule is today part of

international law"). From an exiguous minimum of only twenty-two

democratic governments out of 154 sovereign states elected by

universal suffrage in competitive multiparty elections in 1950, the

number of democratic states to 120 out a total of 192 nations in

the year 2000. Freedom House, Democracy's Century: A Survey of

Global Political Change in the 20th Century 2 (1999). While the

system of democratic government may differ from country to country,

the fundamental right of citizens to participate,45 directly or

indirectly, in the process of electing their leaders is at the

heart of all democratic governments. See, e.g., James Crawford,

45
See, e.g., Freedom House, List of Electoral Democracies, at
www.freedomhouse.org/research/freeworld/2003/tables.htm (2003)
(listing 121 countries which have at least four different systems
of democracy including parliamentary, federal parliamentary,
presidential parliamentary, and federal presidential
parliamentary).

-70-
"Democracy and the Body of International Law," in Democratic

Governance and International Law 93 (Gregory Fox & Brad R. Roth

eds., 2000) ("[t]hat the will of the people is to be the basis of

the authority of government is as good a summary as any of the

basic democratic idea").

We cannot overlook, and in fact we should take judicial

notice of, the many official actions of the United States in

promoting democratic elections throughout the world -- not the

least of which is its support for the recently held national

elections in Afghanistan and Iraq,46 places where thousands of U.S.

citizens from Puerto Rico serve, AP State & Local Wire, A Package

of News Briefs from the Caribbean, Mar. 19, 2005 (reporting 1800

Puerto Ricans currently stationed in Iraq, Kuwait, Afghanistan and

Bosnia), at least twenty-five of whom have lost their lives in

support of the rights of the citizens of those countries to vote.

Id. The situations in Iraq and Afghanistan present the further

anomaly of two classes of U.S. citizens, both fighting and dying

side by side, only one of which was able to vote for its Commander

46
See Afghans Studying the Art of Voting, N.Y. Times, Oct. 4,
2004, at A1 (discussing Afghanistan's first ever democratic
elections); David E. Sanger & Stephen R. Weisman, The Iraqi
Election: The White House; Bush Hails Vote, N.Y. Times, Jan. 31,
2005, at A1 (reporting that President Bush called the election in
Iraq a "triumphant moment in his efforts to spur democratic
movements throughout [the] Middle East"); Steven R. Weisman, U.S.
Asks Others to Pressure Iraq to Be Inclusive, N.Y. Times, Jun. 12,
2005, at A1 (reporting that U.S. seeks to "enlist [] Europe, the
Arab world and the United Nations to pressure the Bagdad government
to include minorities in the political process").

-71-
in Chief. See Uniformed and Overseas Citizens Absentee Voting Act

§ 102, 42 U.S.C. § 1973ff-1(a) (requiring states to permit absentee

voting by overseas military personnel).

But most important, in what may be the ultimate example

of not seeing the forest for the trees, there are few countries in

the world in which the right to vote is as exalted as it is in the

United States. See Wesberry, 376 U.S. at 17 ("No right is more

precious in a free country than that of having a voice in the

election of those who make the laws under which, as good citizens,

we must live."). Furthermore, the right to vote is directly

protected by Federal statute, which provides both civil and

criminal penalties for interference therewith, see Voting Rights

Act § 12, 42 U.S.C. § 1973, by several constitutional amendments,

see U.S. Const., amend. XV (prohibiting discrimination in voting

rights because of race); id. amend. XIX (prohibiting voting

discrimination by reason of gender); id. amend. XXIII (granting the

residents of the District of Columbia the right to vote for the

President of the United States); id. amend. XXIV (prohibiting poll

tax); id. amend. XXVI (extending the right to vote to all citizens

over the age of 18); see also, e.g., Proclamation No. 7806, 69 Fed.

Reg. 52,987 (Aug. 26, 2004) (concerning women's right to vote);

Proclamation No. 7584, 67 Fed. Reg. 55,317 (Aug. 23, 2002)

(concerning Afghan women's right to vote); Proclamation No. 6924,

61 Fed. Reg. 51,767 (Oct. 2, 1996) (concerning right to vote for

-72-
citizens aged between 18 and 21); Der Reichman, Bush Promotes

Democracy in Hemisphere of the Americas, San Juan Star, Jun. 5,

2005, at 11 (in a speech before the Organization of American

States, President Bush urged that entity to monitor democratic

progress in the hemisphere, check the credibility of elections, and

offer a vision of hope "founded on representative government").

In light of the proliferation and widespread acceptance

of, and compliance with, international instruments that

specifically require a right to equal political participation by

all citizens, we should conclude that such a right is a norm of

customary international law.

At least some components of customary international law

are incorporated into United States domestic law as federal common

law. See Sosa, 124 S.Ct. at 2764-65 (recognizing a class of

international law claims as judicially enforceable federal common

law); Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995)(terming it

a "settled proposition that federal common law incorporates

international law"); 13B Charles Alan Wright, et al., Federal

Practice & Procedure: Jurisdiction 2d, § 3585, at 329 (2d ed.,

1984) ("[T]oday it is not difficult to conclude that customary

international law is part of federal common law . . . .").

The Supreme Court in Sosa recognized that certain claims

based on customary international law, as a result of their status

as federal common law, can be enforced in the federal courts under

-73-
the Alien Tort Statute, 28 U.S.C. § 1350. See Sosa, 124 S.Ct.

2764-65. Although the Alien Tort Statute grants jurisdiction only

over "causes where an alien sues for a tort only in violation of

the law of nations or a treaty of the United States," 28 U.S.C. §

1350, the Sosa court did not foreclose the possibility of directly

enforcing some customary international law claims through the

federal common law when federal jurisdiction is based on other

grounds. See Sosa, 124 S.Ct. at 2765, n.19 (expressing doubt, but

leaving open possibility of common law claims for violation of

customary international law when jurisdiction is based on 28 U.S.C.

§ 1331); cf. id. at 2761 (noting that, at least under Alien Tort

Statute, no legal development "has categorically precluded federal

courts from recognizing a claim under the law of nations as an

element of common law"). In light of legislative history that

indicates Congress's intent to extend federal jurisdiction over

cases "arising under" federal law to the fullest extent the

Constitution would allow, see 2 Cong. Rec. 4986-87 (1874) ("The

[Judiciary] [A]ct of 1789 did not confer the whole [judicial] power

which the Constitution conferred . . . . This bill does. . . .

This bill gives precisely the power which the Constitution confers

-- nothing more, nothing less."), we should conclude that the

jurisdiction conferred by 28 U.S.C. § 1331 can encompass claims

arising under customary international law as incorporated into the

federal common law.

-74-
 The Supreme Court limited recognizable claims, however,

to "a narrow class of international norms." Sosa, 124 S. Ct. at

2764. Specifically, "courts should require any claim based on the

present-day law of nations to rest on a norm [1] of international

character [2] accepted by the civilized world and [3] defined with

a specificity comparable to the features of the 18th-century

paradigms" that were recognized at that time as actionable

violations of the law of nations. Id. at 2761-62. These were

violations of international law that "admitt[ed] of a judicial

remedy and at the same time threaten[ed] serious consequences in

international affairs," such as the 18th-century prohibitions on

violation of safe conducts, infringement of the rights of

ambassadors, and piracy. Id. at 2756.

As established above, the first two requirements --

international character and broad acceptance -- have been met in

the case of the customary international law requirement that

citizens be permitted full and equal participation in their

government. Furthermore, this norm is defined with a specificity

comparable to the international law norms recognized as actionable

at the founding of our nation. Its requirements are clear and

definite,47 and the failure to fulfill it can indeed threaten

47
Compare the language of the international instruments
described above with the extended discussion of the definition of
"piracy" in United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-63
(1820) and the comment in the dissent that the reason such lengthy
discussion and definition was the "uncertainty which it was known
existed on the subject in the law of nations . . . ." Id. at 170-71

-75-
serious consequences in international affairs, as evidenced by the

pressure exerted by the United States and other governments on non-

democratic regimes abroad. Cf. Case 11.204, Inter-Am. C.H.R. 727,

OEA/ser.L/V/II.118, doc. 5 rev. 2 (2003) (finding by Inter-American

Commission of Human Rights that the United States "is responsible

for violations of Petitioners' rights under Articles II and XX of

the American Declaration by denying [citizens of the District of

Columbia] an effective opportunity to participate in their federal

legislature").

Because the right to equal political participation by all

citizens meets all of the elements required of an enforceable norm

of customary international law, there should be no question that it

is incorporated into the domestic law of the United States as

federal common law to be applied by the federal courts. See Sosa,

124 S.Ct. at 2764-65. Moreover, it is clear that the United States

is in violation of that norm with respect to the residents of

Puerto Rico. Were we to avoid this conclusion, we would not just

be "avert[ing] [our] gaze entirely from [an] international norm

intended to protect individuals," id., but would be placing our

heads into the sand to avoid seeing the obvious.

In my view, the majority's refusal to incorporate the

clear and specific customary international law norm requiring equal

political participation into federal common law contravenes both

(Livingston, J., dissenting).

-76-
the specific language of the Constitution, see U.S. Const. art. VI,

cl. 2, and relevant Supreme Court doctrine, see Sosa, 124 S.Ct. at

2761-62.

The majority's concern that customary international law

is a "diffuse and often highly uncertain body of norms," maj. op.

at 13, if true regarding other areas of customary international

law, is certainly not true of the right to vote, as demonstrated

above. Moreover, the majority's contention that "[i]f there exists

an international norm of democratic government, it is at a level of

generality so high as to be unsuitable for importation into

domestic law," maj. op. at 14, misses the point. The international

norm at issue here is not "democratic government" generally, but

the right to vote in equality with all other citizens of one's

nation. The majority studiously fails to provide any example, in

any democratic country, in which citizens are classified into

voting and non-voting categories. Its reference to Great Britain

as an example of diversity in democratic governments in which

citizens neither vote for the head of state nor directly for the

governing party, hardly proves the point or even stands for the

proposition that customary international law tolerates unequal

voting rights among citizens of the same country. In Great

Britain, the monarch is only symbolically the head of state.

Furthermore, I was under the impression that in 1776 we rejected

Great Britain's views regarding colonial government.

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C. Remedy

We commence with the premise that plaintiffs-appellants

have the right to equal political participation as citizens of the

United States, pursuant to customary international law and the

ICCPR, both of which are binding on the United States. As

observed, the United States is currently in violation of these

requirements. Given the failure by the United States to take steps

to rectify this clear violation of international law,

notwithstanding its agreement to do so, see, e.g., Exec. Order No.

13,107, 63 Fed. Reg. 68, 991 (Dec. 10, 1998), this court ought to

take such measures as are necessary to protect a discrete group of

citizens that is completely under the sovereignty of the United

States. See United States v. Carolene Prods. Co., 304 U.S. 144,

152 n.4 (1938) ("[P]rejudice against discrete and insular

minorities may be a special condition, which tends seriously to

curtail the operation of those political processes ordinarily to be

relied upon to protect minorities, and . . . may call for

correspondingly more searching judicial inquiry.").

Although, assuming the ICCPR is not self-executing, we

cannot order legislative action to bring the United States into

compliance with its international obligations, a stop-gap measure

is available and is justified by plaintiffs-appellants'

predicament. The Declaratory Judgment Act, 28 U.S.C. § 2201(a),

provides that:

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 In a case of actual controversy within its
jurisdiction . . . any court of the United
States, upon the filing of an appropriate
pleading, may declare the rights and other
legal relations of any interested party
seeking such declaration, whether or not
further relief is or could be sought.

Under this Act, this court may declare the rights, under

the ICCPR and customary international law, of the United States

citizens residing in Puerto Rico. "It is emphatically the province

and duty of the judicial branch to say what the law is." Marbury

v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The Act provides

the courts with the option of "declar[ing] the rights and other

legal relations of any interested party seeking such declaration,

whether or not further relief is or could be sought." 28 U.S.C. §

2201(a) (emphasis added), particularly when a declaratory judgment

"will serve a useful purpose in clarifying and settling the legal

relations in issue . . . ." Aetna Cas. & Sur. Co. v. Quarles, 92

F.3d 321, 325 (4th Cir. 1937) (internal quotation marks omitted).

The power to provide declaratory relief extends to the

power to clarify and settle the legal relations between the United

States and the inhabitants of territories under Federal

administration. See United States v. Sanchez, 992 F.2d 1143, 1150-

53 (11th Cir. 1993), rev'd in part on other grounds, 3 F.3d 366

(11th Cir. 1993) (determining that Puerto Rico is not a separate

sovereign for purposes of the double jeopardy clause); see also

United States v. Lopez-Andino, 831 F.2d 1164, 1167-68 (1st Cir.

-79-
1987) (holding that Puerto Rico is a separate sovereign for double

jeopardy purposes). "Courts of the United States have final

authority to interpret an international agreement for purposes of

applying it as law of the United States." Juda v. United States,

13 Cl. Ct. 667, 678 (Cl. Ct. 1987).

1. Redressability

This type of declaratory relief in the present case is

fully consistent with the Declaratory Judgment Act, because it is

substantially likely that a declaration by this Court that the

United States is in violation of international law will result in

some form of relief to the United States citizens who reside in

Puerto Rico. See Utah v. Evans, 536 U.S. 452, 463-464 (2002). In

Evans the Court held that the "redressability" element of standing

under Article III and the Declaratory Judgment Act48 was met in a

situation in which it was "'substantially likely'" that a non-

party, co-equal branch of government would abide by a federal

court's interpretation of the law "'even though they would not be

directly bound by such a determination.'" Id. at 460 (quoting

Franklin v. Massachusetts, 505 U.S. 788, 803 (1992)). Standing was

established because "the practical consequence of [a court order

declaring a census-taking method unlawful] would amount to a

significant increase in the likelihood that the plaintiff would

48
The "case-or-controversy" requirements of Article III and
the Declaratory Judgment Act are co-extensive. See Teva Pharm.
USA, Inc. v. Pfizer, Inc., 395 F. 3d 1324, 1340 (Fed. Cir. 2005).

-80-
obtain relief [from the President] that directly redresses the

injury suffered." Id. at 464 (collecting cases in which standing

has been found under similar circumstances).

Similarly, in Juda, one can find an example of the

legislative branch following the judiciary's interpretation of

international law. In that case, the inhabitants of the Marshall

Islands -- which the United States held under trusteeship from the

United Nations -- challenged the United States' attempt to

unilaterally terminate the Trusteeship Agreement by way of

Presidential proclamation, which would have contravened the

international agreement with the United Nations. The Claims Court

declared that the Trusteeship remained in effect de jure as a

matter of international law, and set forth the procedure to be

followed by the United States to end it under international law.

Id. at 678-82. Although not bound by that judicial roadmap,

Congress did in fact follow it. See Joint Resolution to Approve

the "Compact of Free Association" between the United States and the

Government of Palau, Pub. L. No. 99-658, § 101, 100 Stat. 3672

(1986); U.N. Security Counsel Res. 683 (Dec. 22, 1990) (terminating

Trusteeship Agreement).

The parallel between these cases and the present

situation is self-evident. Judge Lipez's attempt to distinguish

them on the basis that "the likelihood that Congress and the

President would follow the court's advice was not just

-81-
'substantial,' [in those cases], it was a near certainty . . . .

[but] [t]here is nothing approaching such certainty here," supra at

28 (Lipez, J., concurring), is unconvincing. With due respect, it

is the concurrence that engages in speculation. It seems to me

that the prediction that Congress would ignore a declaratory

judgment of this court that the United States is not in compliance

with its international obligations is simply contrary to

experience. Juda, whether dicta or not, see supra at 27 (Lipez,

J., concurring), bears this out. We live in a country of laws in

which the norm is for all branches of government to respect and

comply with the decisions of the courts, irrespective of how

disputed they may be. See, e.g., Bush v. Gore, 531 U.S. 98 (2000).

I cannot countenance that Congress -- nor, for that matter, the

Executive, which negotiated the ICCPR and is thus intimately

involved and committed -- would ignore a judgment of this court

declaring that the government has taken no action to comply with an

international obligation of the United States, negotiated and

agreed to by the Executive Branch with the advice and consent of

the Senate.

The difficulty, complexity, or length of the process

required for the United States to comply with the law of the land

is irrelevant, as it has never been a test for redressability of a

wrong. Cf. Brown v. Bd. of Educ., 349 U.S. 294, 301 (1955)

(ordering racial desegregation of schools occur "with all

-82-
deliberate speed"). The U.S. citizens of Puerto Rico have waited

over one hundred years to regain the voting rights they lost when

the U.S. invaded in 1898. A declaratory judgment would be of some

help in speeding up the process of recovering these rights.

Regardless, however, of the inappropriateness and

unlikelihood of Congressional inaction in response to a judicial

declaration of the rights at issue, it cannot be denied that we

lack authority to order Congress to act. Even if Congress chooses

to continue on its course of inaction, however, our declaration of

the plaintiffs' rights under the ICCPR and customary international

law would, itself, provide a form of redress. On this point,

Federal Election Commission v. Akins, 524 U.S. 11 (1998), is

instructive. In Akins, a group of voters filed an administrative

complaint with the Federal Election Commission ("FEC") asking it to

force a certain political organization to comply with the reporting

requirements for political action committees ("PACs"). See id. at

17. The FEC dismissed the complaint on the ground that the

organization did not fit the definition of a PAC under federal law.

See id. The voters appealed the FEC's dismissal of their complaint

and the FEC defended on the ground that the voters' claim was not

redressable. See id. at 19. The FEC argued that, even if it

misinterpreted the definition of a PAC, it maintained the option

not to act on the voters' complaint as a matter of prosecutorial

discretion. See id. at 25. The Court disagreed that the FEC's

-83-
discretionary authority deprived the voters of standing. See id.

The Court explained that, even though the FEC might ultimately

decline to act on the voters' complaint, the voters' injury was

redressed by assuring that the FEC's discretionary decision was

based on a correct understanding of the relevant law.

This case presents an analogous circumstance. The

plaintiffs have alleged that Congress has an obligation under the

ICCPR and customary international law to further their right to

vote for President and that since the ICCPR was ratified, Congress

has taken no action in this regard. It is possible that Congress

has not acted in accord with its obligations because it is unaware

of them. By issuing a declaration stating the plaintiffs' rights

under the ICCPR and customary international law, the court can

correct this potential misunderstanding. To be sure, an Article

III court cannot order Congress to pass a law, just as it cannot

order the executive to prosecute a particular case. But, as in

Akins, a declaration can ensure that the government actor in

question (here Congress) exercises its responsibility with a

correct understanding of the relevant legal principles. This is no

guarantee that the Congress will exercise its discretion favorably

to the plaintiff. But, as Akins makes clear, there is no such

requirement. See id. at 25; Evans, 536 U.S. at 464 (stating that

redressability is established where court action "would amount to

-84-
a significant increase in the likelihood that the plaintiff would

obtain the relief that directly redresses the injury suffered").

Ultimately, I simply do not agree with Judge Lipez's

reading of the Utah and Juda cases, nor with his conclusions

regarding redressability. Obviously, the ideal remedy would be if

we could order that plaintiffs be allowed to vote. Barring a

finding that the ICCPR is self-executing, that remedy is not

available. Continued non-compliance, however, is a circumstance

that cannot be ignored any longer. The honor and credibility of

the United States are at stake.

Plaintiffs-appellants, citizens of the United States, are

denied the right to vote for the offices of President and Vice

President of our nation in violation of the ICCPR and customary

international law. Further, it is an unquestionable fact that the

United States has not met its obligation under the ICCPR to take

steps toward allowing these citizens to exercise this fundamental

right. See ICCPR art. 2, para. 2. It must be assumed that the

United States will give effect to a judicial declaration stating

its failure to meet its obligations in this respect, and, at a

minimum, we must ensure that any future inaction by the government

is not based on an inaccurate understanding of its obligations

under international law.

-85-
 2. "Embarrassment" v. Equality

If the majority were to conclude that plaintiffs-

appellants' allegations are not supported by the law, although I

obviously disagree with this conclusion, I would accept it as part

of the judicial process in which diversity of opinion is a fact of

judicial review. However, I cannot accept, and am highly disturbed

by, the proposition espoused by the majority that the outcome of

this appeal should in any way be dictated by its perception that a

declaration by this court that the United States has failed to

comply with its treaty obligations might "embarrass" the United

States and "could be trumpeted as propaganda in international

bodies and elsewhere." Maj. op. at 12. These statements are

worrisome because they demonstrate a misperception of the role of

federal courts vis-à-vis treaties and other international law. The

interpretation of treaties and international law, as an integral

part of the law of the land, is a nondelegable judicial duty and

function that cannot be avoided by this court. Indeed, federal

courts are the final interpreters of treaties. Juda, 13 Cl. Ct. at

678. The United States is just another party in this case, as it

is in the thousands that are heard before the federal courts

throughout the nation. It has no higher standing than any other

party, and is entitled to no higher privilege than private

citizens. It is precisely because the courts of the United States

are perceived by the world at large as upholding these high

-86-
standards of impartiality that a declaration exposing the

government's failure to comply with its treaty obligations, rather

than "embarrassing" the U.S., as the majority suggests, would have

a highly salutary effect by showing the world that we practice what

we preach: the rule of law.

Embarrassment indeed! The U.S. should be embarrassed at

its denying equal rights to four million of its citizens in this

day and age. That fact itself -- particularly in light of the

government's intense encouragement of democratic reform in other

nations and purported commitment to international instruments that

guarantee equal political participation by all citizens -- could be

"trumpeted as propaganda in international bodies and elsewhere."

Maj. op. at 12. Was it "embarrassment" that finally reversed

Plessy? If embarrassment is what it takes to give equal rights to

the United States citizens of Puerto Rico, maybe a dose is

appropriate.

III.

There comes a point when the courts must intervene to

correct a great wrong, particularly one of their own creation,

because the political branches of government cannot or will not

act. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483. This case is

such a crossroads in history. This court cannot further "avert its

gaze," Sosa, 124 S.Ct. at 2764-65, without becoming an accomplice

-87-
to this monumental injustice to Puerto Rico's nationally

disenfranchised United States citizens.

Shortly before the Civil War, Abraham Lincoln said: "As

I would not be a slave, so I would not be a master. This expresses

my idea of democracy. Whatever differs from this, to the extent of

the difference, is no democracy." President Abraham Lincoln,

Address to Indiana Regiment (Aug. 1, 19858) in II The Collected

Works of Abraham Lincoln 532 (Roy P. Basler ed., 1953) (emphasis

removed from original). Substitute "colonized" for "a slave" and

"colonizer" for "master" in this quote, and we are where the United

States citizens of Puerto Rico find themselves today in their

subservient political condition within the United States' political

hegemony.

The opinion of the district court should therefore be

reversed, and the case remanded for the entry of a declaratory

judgment to the effect that the United States has taken no steps to

meet its obligations under the ICCPR and customary international

law to grant equal voting rights to all citizens in the election of

the President and Vice President of the United States.

E pluribus unum.

-88-
 HOWARD, Circuit Judge, (dissenting). The inability of

American citizens residing in the territories to participate in the

election of our nation's leaders is antithetical to our

foundational democratic values. Like Judge Torruella, Judge Leval

of the Second Circuit49 has observed that excluding these United

States citizens from voting for President of the United States

poses serious “problems of fairness, resentment and impaired

reputation in the community of nations.” Romeu v. Cohen, 265 F.3d

118, 128 (2nd Cir. 2001)(Leval, J., writing separately).

Constructively, Judge Leval has explained in some detail

how legislation could constitutionally provide for participation by

Puerto Ricans in Presidential elections. See id. at 128-30; but

see id. at 131-36 (Walker, C.J., disputing that Congress has such

power, while sharing the concern "that the U.S. citizens residing

in the territories are not being afforded a meaningful voice in

national governance."). There is every reason to expect that

people of good will serving in our legislative and executive

branches would seriously consider Judge Leval’s proposal among

other options, were the plaintiffs to successfully prosecute this

action. But this is not to endorse any particular implementation

of voting rights – the preferences of the people of Puerto Rico are

of paramount consideration. It is instead to acknowledge that

there could be approaches beyond what many have assumed.

49
Now Senior Circuit Judge.

-89-
 More generally, while it may be that the Constitution

does not itself confer voting rights upon citizens, generations of

Americans have rightly taken as an article of faith their ability

to participate in the selection of our national leaders through the

franchise.50 In seeking to participate in the Presidential

election, the plaintiffs attempt to assert a right long held by

law abiding United States citizens of age, whether at home or

abroad, so long as they are not residents of one of the

territories. Because the interest represented by the plaintiffs'

claim is of paramount importance to our democratic structure, we

ought to approach their claim searchingly rather than skeptically,51

with the understanding that the court’s declaratory authority

should be exercised to its outermost limits if the claim is

50
"[T]he right to vote, as the citizen's link to his laws and
government, is protective of all fundamental rights and
privileges." Evans v. Cornman, 398 U.S. 419, 422 (1970). "[M]ost
U.S. citizens have a limited, constitutionally enforceable right to
vote in presidential elections as those elections are currently
configured. The States have uniformly exercised their Article II
authority by delegating the power to appoint presidential (and
vice-presidential) electors to U.S. citizens residing in the State
to be exercised in democratic elections." Romeu, 265 F.3d at 123.
51
"Since the right to exercise the franchise in a free and
unimpaired manner is preservative of other basic civil and
political rights, any alleged infringement of the right of citizens
to vote must be carefully and meticulously scrutinized." Reynolds
v. Sims, 377 U.S. 533, 562 (1964); see also Kramer v. Union Free
School District, 395 U.S. 621, 626 (1969) ("[C]areful examination
is necessary because statutes distributing the franchise constitute
the foundation of our representative society. Any unjustified
discrimination in determining who may participate in political
affairs or in the selection of public officials undermines the
legitimacy of representative government.").

-90-
otherwise viable. We should take care that the claims of American

citizens who assert a basic right to participate in the democratic

process do not suffer stillbirth through exacting application of

redressability doctrines that, as Judge Torruella has pointed out,

have significant flexibility.

Turning directly to the plaintiffs' treaty claim, even if

there were a persuasive argument not to accept Judge Torruella's

reasoning, the case still should not end at this stage. This is

because plaintiffs' claim under the ICCPR should not be resolved on

a motion under Fed. R. Civ. P. 12(b)(6) without an opportunity for

record development.52

The United States signed the ICCPR in 1977. Among its

provisions, Article 25 provides:

Every citizen shall have the right and
opportunity and without unreasonable
restrictions to take part in the conduct of
public affairs, directly or through freely
chosen representatives and to vote and to be
elected at genuine periodic elections which
shall be by universal and equal suffrage and
shall be held by secret ballot, guaranteeing
the free expression of the will of the
electors.

999 U.N.T.S. 171 (opened for signature Dec. 19, 1966). The Senate

did not provide its advice and consent for the ICCPR until 1992. In

consenting to the Treaty, the Senate added a declaration stating

52
Beyond my own views expressed here, I agree with much of
Judge Torruella's dissent. In particular, I agree substantially
with his reasoning in Parts I., II. B. 1., and II. C. 1. and join
him in those respects.

-91-
that the ICCPR will be "non-self-executing,"53 as requested by the

executive. S. Exec. Rep. No. 102-23 at 23 (1992) ("[T]he United

States declares that the provisions of Articles 1 through 27 of the

Covenant are not self-executing.").54 From this declaration, one

might conclude that the plaintiffs do not have enforceable rights

under Article 25 of the Treaty.55 But in my view, separation of

powers considerations prevent a court from relying exclusively on

the Senate's declaration to determine that a treaty is non-self-

executing. The Supremacy Clause and Article III require a court to

examine independently the intentions of the treatymakers to decide

if a treaty, by its own force, creates individually enforceable

53
Courts and commentators have used the term "non-self-
executing" to mean many things. See D. Cinotti, Note, The New
Isolationism: Non-Self-Execution Declarations and Treaties as the
Supreme Law of the Land, 91 Geo. L. Rev. 1277, 1279 (2003). For
purposes of this opinion, I understand the term to mean that a
treaty does not create individually enforceable rights without the
passage of implementing legislation. See Columbia Marine Servs.,
Inc. v. Reffet Ltd., 861 F.2d 18, 21 (2d Cir. 1988) (stating that
in order for an action to arise under a treaty for purposes of 28
U.S.C. § 1331, "the treaty must be self-executing, i.e., it must
prescribe rules by which private rights may be determined"); J.
Paust, Avoiding "Fraudulent" Executive Policy: Analysis of the
Covenant on Civil and Political Rights, 42 De Paul L. Rev. 1257,
1258 n.4 (1992) (explaining that the purpose of the non-self-
execution declaration in the ICCPR was intended to assure that the
Treaty would not create a private cause of action in U.S. courts).
54
Articles 1 through 27 are the rights-granting provisions of
the ICCPR.
55
It might also be said that as a prudential matter the
Senate's declaration precludes relief under the Declaratory
Judgment Act. For the reasons expressed herein, I would not decide
this prudential question at the motion to dismiss stage.

-92-
rights. While the Senate's preratification view on the matter is

entitled to some weight, other facts, including extrinsic evidence

concerning the Treaty's negotiation history and international

practice under the Treaty, are relevant. Because the procedural

posture of this case has precluded introduction of evidence

regarding the ICCPR's negotiation and enforcement history, it is

premature to dismiss on the ground that the Treaty does not provide

the plaintiffs with enforceable rights.

The Senate's practice of declaring certain treaties to be

non-self-executing is of relatively recent origin.56 See L. Henkin,

Foreign Affairs and the United States Constitution, 201-02 (2d ed.

1996). This practice has become commonplace especially, although

not exclusively, for human rights treaties, see L. Damrosch, The

Role of the United States Senate Concerning "Self-Executing" and

"Non-Self-Executing" Treaties, 67 Chi-Kent L. Rev. 515, 519-26

(1991), and has been accepted in some quarters, see Restatement

(Third) of Foreign Relations Law of the United States § 303, cmt.

56
This practice appears to be, at least in part, a response to
the proposed Bricker Amendment, which would have amended the
Constitution to require implementing legislation before a treaty
could have domestic effect. See S.J. Res. 130, printed at 98 Cong.
Rec. 907-08 (1952). Some scholars have concluded that the Senate
viewed non-self-executing declarations as a way to achieve the
objectives of the Bricker Amendment without having to amend the
Constitution. See L. Henkin, U.S. Ratification of Human Rights
Conventions: The Ghost of Senator Bricker, 89 Am. J. Int'l L. 341,
348-50 (1995). See also D. Sloss, The Domestication of Int'l Human
Rights: Non-Self-Executing Declarations and Human Rights Treaties,
24 Yale J. Int'l L. 129, 173 (1999).

-93-
d (1986) (stating that there is no accepted doctrine indicating

limits on the conditions that the Senate may impose on its

provision of consent), but "without significant discussion,"

Henkin, Foreign Affairs, supra at 202.

Unlike in some other countries, treaties become part of

the fabric of our domestic law upon ratification. Carlos Manuel

Vázquez, Treaty-Based Rights and Remedies of Individuals, 92 Colum.

L. Rev. 1082, 1111 (1992) (describing the rule under British law

that a treaty does not have domestic effect until Parliament passes

implementing legislation). This is a direct result of the

Supremacy Clause, which makes treaties part of the "supreme law of

the land" along with federal statutes, federal common law, and the

Constitution itself. U.S. Const. art. VI., cl. 2.57 The

Constitution's grant of power to the federal judiciary also

recognizes that treaties constitute domestic law. Under article

III, § 2, cl. 1, the federal judicial power "extend[s] to all

Cases, in Law and Equity arising under . . . Treaties." The

57
The Supremacy Clause states:

This Constitution, and the Laws of the
United States made in Pursuance Thereof;
and all which shall be made in Pursuance
Thereof; and all Treaties made, or which
shall be made, under the Authority of the
United States, shall be the supreme law
of the land; and the judges in every
State shall be bound thereby, any Thing
in the Constitution of Laws of any State
to the Contrary notwithstanding.
(Emphasis supplied).

-94-
express language of the Constitution thus provides that a treaty

ratified by the President, after the Senate's advice and consent,

see U.S. Const. art. II, § 2, cl. 2, is part of our domestic law

and may be enforced in a domestic court.

This is not a historical accident, for incorporating

treaties into the domestic law was one of the purposes for drafting

the Constitution. Under the Articles of Confederation, the States

were reluctant to enforce treaties entered into by the national

government. In proposing the Virginia Plan as the working draft

for the new Constitution, Edmund Randolph complained about the

Articles' powerlessness to "cause infractions of treaties . . . to

be punished." 1 M. Farrand, The Records of the Federal Convention

of 1787 19 (rev. ed. 1996). James Madison shared this view. He

claimed that "experience [under the Articles] had evidenced a

constant tendency in the States to . . . violate national Treaties

. . . ." Id. at 164. The Constitution sought to remedy this

tendency by making treaties "the supreme law of the land."

The Framers' intention to establish treaties as law,

without further legislative action, is demonstrated by several of

the proposals that the Constitutional Convention rejected. One

such proposal would have required that treaties be sanctioned by

legislation if they were to have "the operation of laws." J.

Madison, Notes of Debates in the Federal Convention of 1787 520

(1966 ed.). Another would have established two types of treaties:

-95-
one requiring only action by the President and the Senate, and a

second requiring additional action by the House of Representatives.

See 2 Farrand, supra at 394. The rejection of these proposals

illustrates the Framers' intention that all treaties constitute law

under the Supremacy Clause.58 As James Wilson stated: "[The

Supremacy Clause] will show the world that we make the faith of

treaties a constitutional part of the character of the United

States; that we secure [their] performance no longer nominally, for

the judges of the United States will be enabled to carry [them]

into effect." 2 J. Elliot, The Debates in the Several State

Conventions on the Adoption of the Federal Constitution 490 (2d ed.

1881).

The expectation that treaties would become operative as

domestic law upon ratification is also expressed in the Federalist

Papers and the ratification debates within the States. For

example, in Federalist No. 22, Alexander Hamilton explained that

"the treaties of the United States, to have any force at all, must

be considered as part of the law of the land. Their true import,

as far as respects individuals, must, like all other laws, be

ascertained by judicial determinations." The Federalist No.22 at

58
In a similar vein, the Committee on Style removed from the
final version of the Supremacy Clause language that would have
given the national government the power to "enforce treaties." The
Committee removed this language because it was redundant; the
Supremacy Clause already declared that treaties were law.
See Farrand, supra, at 389-90.

-96-
150 (C. Rossiter ed. 1961). Similarly, at the North Carolina

ratifying convention, one of the Constitution's supporters

explained:

It was necessary that treaties should operate
as laws on individuals. They ought to be
binding upon us the moment they are made. They
involve in their nature not only our own
rights, but those of foreigners and should be
protected by the federal judiciary.

4 Elliot, supra at 158. Even those opposing ratification shared

in this view. "Brutus," in criticizing Article III, stated that

he could "readily comprehend what is meant by deciding a case

under a treaty. For as treaties will be the law of the land,

every person who has rights or privileges secured by a treaty,

will have the aid of courts in recovering them." 16 J. Kaminski

and G. Saladino, The Documentary History of the Ratification of

the Constitution 172 (1984).

One commentator has summarized the founding period

evidence as follows:

[The] historic patterns of expectation
demonstrate that most Framers intended all
treaties immediately to become binding on
the whole nation, superadded to the laws of
the land; to be observed by every member of
the nation, to be applied by the courts
whenever a cause of action arose from or
touched upon them; and to prevail over and
preemept any existing state action. In
these ways, at least, all treaties (to the
extent of their grants, guarantees, or
obligations) were to be self-executing.

See J. Paust, Self-Executing Treaties, 82 Am. J. Int'l L.

-97-
760, 764 (1988).59

This understanding quickly found its way into the United

States Reports. See Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).

Ware concerned the 1783 Peace Treaty with Great Britain. The

plaintiff, a British citizen, claimed that he was owed a debt by a

Virginia citizen. See id. at 199-201. The defendant claimed that

the debt had been extinguished by a 1777 Virginia statute. See id.

The treaty provided, however, that "creditors, on either side, shall

meet with no lawful impediment to the recovery of full value of all

bona fide debts heretofore contracted." Id. at 277. The British

plaintiff argued that this treaty provision overrode the Virginia

statute and reinstated the debt. See id. at 209.

Justice Iredell, sitting as a circuit judge, considered

whether the treaty was operative without the passage of any

additional domestic legislation. He recognized that, under the law

of Great Britain, a treaty would not be operative domestically

without implementing legislation, but that the purpose of the

Supremacy Clause was to differentiate the effect of treaties under

American law:

59
For a fuller discussion, see Paust, supra; Vázquez, supra;
and M. Flaherty, History Right?: Historical Scholarship, Original
Understanding, and Treaties as "Supreme Law of the Land", 99 Colum.
L. Rev. 2095 (1999). For an alternate interpretation of the
Founding period, see J. Yoo, Globalism and the Constitution:
Treaties, Non-Self-Execution, and the Original Understanding, 99
Colum. L. Rev. 1955 (1999).

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 Under this constitution, therefore, so far as
a treaty constitutionally is binding, upon
principles of moral obligation, it is also, by
the vigor of its own authority, to be executed
in fact. It would not otherwise be the
supreme law, in the new sense provided for,
and it was so before, in a moral sense. . . .
[W]hen the constitution was ratified, the case
as to the treaty in question stood upon the
same footing, as if every act constituting an
impediment to a creditor's recovery had been
expressly repealed, and any further act
passed, which the public obligation had before
required, if a repeal alone would not have
been sufficient.

Id.

The case went to the Supreme Court, where each Justice

wrote his own opinion. No Justice disagreed with Justice Iredell's

explanation of the domestic effect of the treaty. See id. at 237

("[E]very treaty made by authority of the United States, shall be

superior to the constitution and laws of any individual state. . .

.") (Chase, J.). Ware thus supports the view that, when a treaty

creates obligations favoring an individual, the individual may

enforce the obligation directly in a United States court, even

though there is no implementing legislation.60 In other words,

under American law, treaties can be self-executing. See Head Money

Cases, 112 U.S. 580, 598-99 (1884) ("A treaty . . . is a law of the

land as an act of Congress is, whenever its provisions prescribe a

60
In another early case, Chief Justice Marshall echoed this
sentiment. Owings v. Norwood Lessee, 9 U.S. (5 Cranch) 344, 348-49
(1809) ("Whenever a right grows out of, or is protected by a
treaty, it is to be protected.").

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rule by which the rights of the private citizen . . . may be

determined. And when such rights are of a nature to be enforced in

a court of justice, that court resorts to the treaty for a rule of

decision for the case before it as it would to a statute.").

The suggestion that some treaties are not self-executing

first appeared in Foster v. Nielson, 27 U.S. (2 Pet.) 253 (1829),

overruled in part by United States v. Percheman, 32 U.S. 51 (1833)

(reinterpreting treaty in light of new evidence regarding meaning

of ambiguous term). There, a treaty with Spain, designed to protect

private land grants, provided that "grants shall be ratified and

confirmed." Id. at 309. Writing for the Court, Chief Justice

Marshall concluded that the treaty was not self-executing because,

by its terms, it did not establish a right in an individual but

rather placed an obligation on the legislative branch to act.

See id. at 314. As Chief Justice Marshall explained:

Our constitution declares a treaty to be the law
of the land. It is consequently to be regarded
in courts of justice as equivalent to an act of
the legislature, whenever it operates of itself,
without the aid of any legislative provision.
But when the terms of the stipulation import a
contract, where either of the parties engages to
perform a particular act, the treaty addresses
itself to the political, not the judicial
department; and the legislature must execute the
contract before it can be become a rule for the
court.

Id.

The Foster rule -- that certain treaties are non-self-

executing -- is a judicially-created doctrine. See Henkin, The

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Ghost of Senator Bricker, supra at 347. Under this doctrine, a

court must ascertain whether the instrument was intended by its

makers to establish directly enforceable rights, or only to impose

an obligation on one of the political branches. See Frolova v.

Union of Soviet Socialist Republics, 761 F.2d 30, 373 (7th Cir.

1985) ("Whether a treaty is self-executing is an issue for judicial

interpretation."); Restatement supra at § 111, cmt. h ("Whether an

agreement is to be given effect without further legislation is an

issue that a court must decide when a party seeks to invoke the

agreement as law."). Such an intent is to be gleaned from the

treaty's terms and history. See Diggs v. Richardson, 555 F.2d 841,

851 (D.C. Cir. 1976) (stating that, "[i]n determining whether a

treaty is self-executing courts look to the intent of the signatory

parties as manifested by the language of the instrument, and if the

instrument is uncertain, recourse must be had to the circumstances

surrounding its execution").

Given this constitutional and judicial history, a court

ought not quickly conclude that treaties are non-self-executing.

Cf. United States v. Li, 206 F.3d 56, 61 (1st Cir. 2000) (en banc)

(stating that there is a presumption against self-executing

treaties under American law).61 Rather, a court must conduct an

independent and searching inquiry into the treaty's purpose. And

61
Judge Torruella took a similar view in his dissent in Li.
See 206 F.3d at 70-71.

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on this point a declaration by the Senate that a treaty is non-

self-executing should not be dispositive.

Those holding a contrary view tend to regard the Senate's

power to declare a treaty non-self-executing to be an adjunct of

its general power to consent to ratification. See Restatement

supra at § 303, cmt. d. There is no doubt that the Senate may

hinge its consent to ratify a treaty on a reservation. See Haver

v. Yaker, 76 U.S. (9 Wall.) 32, 35 (1869). But a reservation is a

"unilateral statement . . . whereby [one party] purports to exclude

or to modify the legal effect of certain provisions of the treaty

in the application to that State." Vienna Convention on the Law of

Treaties, art. 2(1)(d) (1969). A reservation thus has an actual

effect on the terms of the treaty. See M. Glennon, The

Constitutional Power of the United States Senate to Condition Its

Consent to Treaties, 67 Chi.-Kent. L. Rev. 533, 542 n. 63 (1991)

(citing authority). And the reservation will vitiate the Senate's

consent if its terms are not incorporated into the treaty.

See Henkin, Foreign Affairs, supra at 180-81.

A non-self-execution declaration differs materially from

a reservation. See Restatement, supra at § 314, cmt. d. The

declaration is not presented to the other international signatories

as a request for a modification of the treaty's terms. Rather, it

is directed primarily toward United States courts to express "the

sense of the Senate" that the treaty should not be interpreted to

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establish individually enforceable rights. As two leading

commentators have explained, the Senate does not have the power to

bind a court to such declarations:

[T]he Senate lacks the constitutional authority
to declare the non-self-executing character of
a treaty with binding effect on U.S. courts.
The Senate has the unicameral power only to
consent to ratification of treaties, not to
pass domestic legislation. A declaration is
not part of a treaty in the sense of modifying
the legal obligations created by it. A
declaration is merely an expression of an
interpretation or of a policy or position.
U.S. courts are bound by the Constitution to
apply treaties as the law of the land. They
are not bound to apply expressions of opinion
adopted by the Senate (and concurred in by the
President). The courts must undertake their
own examination of the terms and context of
each provision in a treaty to which the United
States is a party and decide whether it is
self-executing. The treaty is law. The
Senate's declaration is not law. The Senate
does not have the power to make law outside the
treaty instrument.

S. Riesenfeld & F. Abbott, Foreword: Symposium of Parliamentary

Participation in the Making and Operation of Treaties, 67 Chi.-

Kent L. Rev. 293, 296-97 (1991).62

62
Other commentators, including Professor Henkin, share this
view. See Henkin, Foreign Affairs, supra at 202 (describing the
Senate's practice of declaring treaties as non-self executing to be
"anti-Constitutional in spirit and highly problematic as a matter
of law"); Henkin, The Ghost of Senator Bricker, supra at 346
(stating that non-self-execution declarations by the Senate "may be
unconstitutional"). See also D. Cinnoti, supra; J. Quigley, The
Rule of Non-Inquiry and Human Rights Treaties, 45 Cath. L. Rev.
1213 (1995); J. Quigley, The Int'l Covenant on Civil and Political
Rights and the Supremacy Clause, 42 De Paul L. Rev. 1287 (1993);
Paust, Avoiding Fraudulent Executive Policy, supra; C. Dearborn,
Note, The Domestic Legal Effect of Declarations that Treaty

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 Stated differently, the Senate's power under Article II

extends only to the making of reservations that require changes

to a treaty before the Senate's consent will be efficacious. A

declaration that only has domestic effect is, in reality, an

attempt to legislate concerning the internal implementation of a

treaty. But the power to legislate is not granted to the Senate

under Article II. Legislation may only be enacted through

bicameral adoption and presentation to the President as set forth

in Article I. See INS v. Chada, 462 U.S. 919 (1983).

The only case that I am aware of that addresses a similar

question supports this view. In Power Authority of New York v.

Federal Power Commission, 247 F.2d 538 (D.C. Cir.), vacated and

remanded with instructions to dismiss as moot 355 U.S. 64 (1957),

the United States entered a bilateral treaty with Canada concerning

the use of the Niagara River to produce power along the United

States/Canada border. See id. at 539. In its resolution

consenting to the treaty, the Senate included a reservation whereby

the United States reserved the right to redevelop its portion of

the power generated on the river only through an act of Congress.

See id. The United States and Canada agreed that the reservation

only concerned American domestic law and did not require any

changes to the treaty. See id. at 540-41.

Provisions Are Not-Self-Executing, 57 Tex. L. Rev. 233 (1979).

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 The Power Authority of the State of New York sought a

license from the Federal Power Commission to use the Niagara River

for the state's anticipated power project. See id. at 539. The

Commission dismissed the authority's license application,

contending that the Senate's reservation precluded it from granting

such a license because federal legislation was required. See id.

at 539-40.

The D.C. Circuit held that the reservation was

ineffective because it involved only United States domestic law.

For the reservation to be binding on the judiciary, the court

reasoned, it had to constitute an actual part of the treaty:

A true reservation which becomes a part of a
treaty is one which alters the effect of the
treaty insofar as it may apply in the relations
of the State with the other State or States
which may be parties to the treaty. It creates
a different relationship between the parties
and varies the obligations of the parties
proposing it.

Id. at 541. Because the reservation was merely an expression of

the Senate's view of domestic policy it had no domestic effect.

See id.63

63
Sosa v. Alvarez-Machian, 124 S. Ct. 2739 (2004) is not to the
contrary. That case involved whether the right to be free from
arbitrary abduction and detention was protected under customary
international law. The plaintiff in Sosa did not sue directly
under the ICCPR but rather argued that the Treaty's terms helped
establish the relevant principle of customary international law for
purposes of his Alien Tort Act claim. The Court relied on the
Senate's non-self-execution declaration in the ICCPR as one factor
to support its conclusion that the ICCPR could not, by itself,
establish a rule of customary international law. See id. at 2763

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 The non-self-execution declaration in the ICCPR is a

similar expression of the Senate's desire concerning a purely

domestic issue. Like the reservation in Power Authority, the

declaration was not intended to modify the Treaty terms in any way.

Thus, it lacks binding force. Cf. Fourteen Diamond Rings v. United

States, 183 U.S. 176, 178-80 (holding that a Senate resolution

purporting to interpret a treaty adopted after ratification was not

binding). Of course, the Senate's view is relevant. Cf. United

States v. Stuart, 489 U.S. 353, 366-67 (1989) (stating that Senate

preratification debate is relevant to determining the meaning of

a treaty). But, in the end, whether there is a private right of

action under the ICCPR should be decided on the basis of the

totality of available evidence. See Volkswagenwerk A.G. v.

Schlunk, 486 U.S. 694, 700 (1988) ("Treaties are construed more

liberally than private agreements, and to ascertain their meaning

we may look beyond the written words to the history of the treaty

negotiations, and the practical construction adopted by the

parties."); see also Societe Nationale Industrielle Aerospatiale v.

& 2767. But the Court was not faced with (and did not decide)
whether the Senate's declaration ipso facto prevents a plaintiff
from suing directly under the Treaty. Because the question in Sosa
was not the binding effect of the Senate's non-self-execution
declaration in determining whether the ICCPR establishes a private
cause of action, the parties did not present the Court with (and it
did not address) the separation of powers arguments questioning the
Senate's authority to issue such declarations. See, e.g., Reply
Brief of United States at 8, Sosa, supra.

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U.S. Dist. Ct. for the S. Dist. of Iowa, 482 U.S. 522, 534 (1987)

(stating that treaty interpretation begins with the text of the

treaty, but that the treaty's history and practical construction

adopted by the parties are relevant); Air France v. Saks, 470 U.S.

392, 400 (1985) (stating that "in interpreting a treaty it is

proper . . . to refer to the records of its drafting and

negotiation"); Islamic Rep. of Iran v. Boeing Co., 771 F.2d 1279,

1283 (9th Cir. 1985) (explaining that the most important factor in

determining whether a treaty is self-executing is the language,

purpose, and intent behind the treaty).

Given the broad judicial inquiry required to determine if

a treaty establishes individually enforceable rights and the non-

binding nature of the Senate's non-self-execution declaration, I do

not think it proper to affirm the dismissal under Fed. R. Civ. P.

12(b)(6). See Paust, Avoiding "Fraudulent" Executive Policy, supra

at 1259-62 (suggesting that text of ICCPR indicates that it was

intended to be self-executing). We do not have before us

sufficient information concerning the negotiation history of the

ICCPR or the way in which the other signatories have enforced it.

Without such information, we lack the full spectrum of sources

necessary to evaluate the extent to which, if at all, the

plaintiffs may possess one or more enforceable rights under the

Treaty.

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 A "court should be especially reluctant to dismiss on the

basis of the pleadings when the asserted theory of liability is

novel or extreme, since it is important that new legal theories be

explored and assayed in the light of the actual facts rather than

a pleader's suppositions." 5A Wright & Miller, Federal Practice &

Procedure, § 1357; see also Doe v. Walker, 193 F.3d 42, 46 (1st

Cir. 1999)("Our preference for a better record is well supported

and . . . is one which we are entitled to require for reasons of

prudence."). When looked at the way I see it, this suit presents

a novel claim concerning the right to vote – a right which, as I

have said, has special significance. See Wesberry v. Sanders, 376

U.S. 1, 17 (1964) (stating that "no right is more precious in a

free country than that of having a voice in the election of those

who make the laws, under which, as good citizens, we must live").

Given the sensitive nature of the dispute and its implications, I

would permit the parties to develop a record concerning the ICCPR.64

64
I am less sanguine about whether plaintiffs may successfully
press a claim under customary international law. The most
promising avenue for challenging Puerto Rico's status as violative
of a customary international norm -- a claim arguing that customary
international law recognizes a right of peoples to self-
determination and imposes on nations an obligation to decolonize --
more properly belongs not to an individual Puerto Rican, but to the
Commonwealth of Puerto Rico itself, the political leadership of
which is elected by individual Puerto Ricans and, presumably, would
be responsive to the electorate. See, e.g., Duke Power Co. v.
Carolina Env. Study Group, Inc., 438 U.S. 59, 80 (1978); Laurence
H. Tribe, American Constitutional Law, § 3-19 (3d ed. 2000); Erwin
Chemerinsky, Constitutional Law Principles and Policies, § 2.5.4
(2d ed. 2002). In such a lawsuit, there would be less reason for
concern that the plaintiffs might be seeking a fundamental change

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in the relationship between the Commonwealth and the United States
that many of their fellow Puerto Ricans may not desire.

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