Civil Rights: Puerto Rico and United States

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In March 2, 1917, the Jones Act was approved granting U.S. citizenship to people born in P.R. and providing the residents of P.R. with a “Charter of Rights.” That Bill of Rights included inter alia …

In March 2, 1917, the Jones Act was approved granting U.S. citizenship to people born in P.R. and providing the residents of P.R. with a “Charter of Rights.” That Bill of Rights included inter alia the “due process” of law when a citizen's life, liberty or property are violated; the right to “Habeas Corpus”; prohibition of ex post facto laws; the just compensation for expropriated property; the right to bail; the right to be innocent until proven guilty; the right to freedom of speech and press; and numerous other provisions under the Constitution of the United Together. In 1948, the U.S. Supreme Court expressed in Foley Brothers Inc. v. Filardo, 336 U.S. 281, that it was a well-established principle of law that all federal legislation applies only within the territorial jurisdiction of the United States unless a contrary intent appears. It was later established that P.R. was to be subject to the Congress’ plenary powers under the “territorial clause” of Article IV, sec. 3, of the U.S. Constitution and that due to the establishment of the Federal Relations Act of 1950 all federal laws that are “not locally inapplicable” were to be automatically the law of the land in P.R.

In 1951, the U.S. Congress approved Public Law 600, authorizing P.R. to draft its own constitution. In July 25, 1952, the Puerto Rican Constitution was approved by a popular referendum and ratified by the U.S. Congress, with a “few amendments.” U.S. maintained an ultimate sovereignty over P.R. while at the same time it gave Puerto Ricans certain degree of autonomy over the island. Under the Territorial Clause, the autonomy recognized to the island has being interpreted by the U.S. Congress as recognition of the sovereignty over the island. In 1976 the U.S. Supreme Court indicated that the purpose of Congress in the legislations of 1950 and 1952 was to accord to P.R. the degree of autonomy and independence normally associated with a State of the Union. In that same year the Puerto Rican Supreme Court, posed with the question of what should be the relationship between the 4th Amendment of the Federal Constitution, and section 10 of article II of the Puerto Rican Constitution, concluded that P.R. remains subject to the will of Congress as to what rights are applicable and which not and that 4th Amendment describes the minimum level of security to be recognize by states, borders that can be expanded but not reduced. In short, because more than 150 years of constitutional development and civil rights struggles around the world as well as the “Universal Declaration of Human Rights” and the “American Declaration of the Rights and Duties of Man,” both from 1948, were taken into account, P.R. was be able to draft a Bill of Rights more extensive and progressive than the one written by the drafters of the U.S. Constitution in the 18th century. In response to that struggle the P.R. Constitution recognizes the constitutional rights of the U.S. Constitutio

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  • 1. P.R. & U.S. Civil Rights Aitza M. Haddad, JD LL.M. Comparative Law Seminar 2011
  • 2. 2 Overview  P.R. as a U.S. Territory  P.R. Constitution  P.R. Bill of Rights  Right to Dignity  Right to Life  Right to Equality  Right to Property  U.S. Right to Privacy  P.R. Right to Privacy  Privacy & the Family in P.R.  Freedom of Speech, Press & Association  Right to Consciousness  P.R. Right to Keep & Bear Arms  U.S. Right to Keep & Bear Arms  Future of Act 140 of 2000  Section 20
  • 3. P.R. as a U.S. Territory The application of the US Constitution to PR is limited by the Insular Cases;  Juan R. Torruella, a judge on the US Court of Appeals for the 1ST Circuit (the federal appeals court with jurisdiction over the Federal Court for the District of PR) considers that the landmark decisions consisted only of six fundamental cases; all decided in 1901:  "strictly speaking the Insular Cases are the original six opinions issued concerning acquired territories as a result of the 1898 Treaty of Paris."  These six cases were:  De Lima v. Bidwell, 182 U.S. 1  Goetze v. United States, 182 U.S. 221  Dooley v. United States, 182 U.S. 222  Armstrong v. United States, 182 U.S. 243  Downes v. Bidwell, 182 U.S. 244  Huus v. New York and Porto Rico Steamship Co., 182 U.S. 392  Foley Brothers Inc. v. Filardo 336 U.S. 281 (1948) - "It is a well established principle of law that all federal legislation applies only within the territorial
  • 4. P.R. Constitution  Puerto Rico is subject to the Congress’ plenary powers under the “territorial clause” of Article IV, sec. 3, of the U.S. Constitution.  Due to the establishment of the Federal Relations Act of 1950 all federal laws that are “not locally inapplicable” are automatically the law of the land in Puerto Rico.  In 1951 the US Congress approved the Public Law 600 which authorized PR to draft its own constitution;  In July 25 of 1952 the PR Constitution was approved by a popular referendum and ratified by the US Congress with a “few amendments”;  It maintained an ultimate sovereignty over PR while at the
  • 5. P.R. Constitution Under the Territorial Clause the autonomy recognized to the island is interpreted by the US Congress as a recognition of the sovereignty of the island.  Examining Board v. Flores de Otero, 426 U.S. 572 (1976) - The U.S. Supreme Court indicates that the purpose of Congress in the legislations of 1950 and 1952 was to accord to PR the degree of autonomy and independence normally associated with a State of the Union.  Pueblo v. Dolce, 105 D.P.R. 422 (1976) – Plain Evidence – PR Supreme Court was posed with the question of what should be the relationship between the 4th Amendment of the Federal Constitution which protects against unreasonable searches and seizures, and section 10 of art. II of the Constitution of PR which offers a similar protection.  The Court concluded that PR remains subject to the will of Congress as to what rights are applicable and which not. The 4th Amendment describes the minimum level of security to be recognize by the states and those borders can not be reduced but they can be expanded.
  • 6. 6 P.R. Bill of Rights The Jones Act of March 2, 1917, in addition to grant US citizenship to people born in PR gave the residents of PR a “Charter of Rights”.  This Bill of Rights included inter alia the “due process” of law when a citizen's life, liberty or property are violated; the right to “Habeas Corpus”; prohibition of ex post facto laws; the just compensation for expropriated property; the right to bail; the right to be innocent until proven guilty; the right to freedom of speech and press; and numerous other provisions under the Constitution of the United Together.  Art. II of the PR Constitution is better known as the “Bill of Rights of Puerto Rico”.  It was created in order to comply with the requirements of Public Law 600  The first was the establishment of a republican form of government for the island.  The second was the inclusion of a Bill of Rights  It is divided into nineteen sections, each one listing one or several rights which are deemed fundamental under Puerto Rican constitutional law.  The PR Constitution and its Bill of Rights was strongly influenced by “The Universal Declaration of Human Rights” and the “American Declaration of the
  • 7. Right to Dignity  Art. II Sec. 1  The dignity of the human being is inviolable. All men are equal before the law. No discrimination shall be made on account of race, color, sex, birth, social origin or condition, or political or religious ideas. Both the laws and the system of public education shall embody these principles of essential human equality.  The first two sentences have traditionally been interpreted by scholars as granting an unlimited amount of rights, since anything that violates the dignity of a human being will be deemed unconstitutional.  The remainder of the section concretely establishes the kinds of discriminations that are outlawed.  The U.S. Cosntitution does not expressly prohibited discrimination for reasons of gender nor social origin or
  • 8. Right to Dignity  Zachry Int'l v. Tribunal 104 DPR 267 (1975) - Group of female employees challenge the constitutionality of a law that required for female employees “to take a break” after 4 hours of work.  Because gender is expressly prohibited by the constitution, the category was found to be “inherently suspect”; these categories are considered by the Court as areas that are part of being a human being, circumstances that can not be avoid.  The Court found that the classification made by the regulation, even when its purpose was to protect the women’s health, in practice was pitting them in disadvantage over men  The regulation was found to be unconstitutional because the interest of the State was not compelling and there was no relationship between the regulation and the real purpose at stake.  For a classification to be valid it must be for the intended purpose. If the law had said "pregnant women" would it would not have been wrong because the law was not designed to protect woman over man but to protect pregnant woman; man can not get pregnant  Sex is not mention in the US Constitution; A classification will always be
  • 9. Right to Life  PR abolished the death penalty in 1929 with the Law 42  The last execution occurred in 1927  Art. II Sec. 7 establishes that the right to life is fundamental in PR.  Because of this, the section determines that the death penalty will not exist under the jurisdiction of the commonwealth.  48 U.S.C. 734 – Because of PR's status as a Commonwealth of US, PR is subject to section 9 of the Federal Relations Act leaving no doubt that US authorities can impose the death penalty to citizens of PR through federal legislation (18 USC 3591 – Sentence of Death).  U.S. v. Acosta-Martínez 252 F. 3d (1st. Cir. 2001) – Appellate Court held that the federal death penalty applies in PR.  The ruling overturns a district court decision of 2000 that held that the death penalty could not apply to PR because PR citizens
  • 10. Right to Equality Sec. 7 also contains the due process of law as well as the equal protection clauses.  Extension of civil rights to private sector  Sec. 14 specifies the no conferring of titles and dignities hereditary  Sec. 12 - There shall be no slavery, servitude or any form of involuntary, except that which may be imposed because of offense after conviction  Statutory prohibitions of discrimination  Act No. 100 of June 30, 1959, as amended.  Discrimination on grounds of age, race, color, religion, sex, national or social origin or social status  Act No. 69 of July 6, 1985  Employment discrimination based on sex  Act No. 17 of April 22, 1988
  • 11. Right to Property In the second part of Sec. 7 Property is mentioned as a fundamental right:  “No laws impairing the obligation of contracts shall be enacted. A minimum amount of property and possessions shall be exempt from attachment as provided by law”.  The U.S. Constitution only makes reference to property to indicate that the same cannot be taken without due process of law.  Although, its interpretation in both jurisdictions had been almost the same.  Art. II Sec 9 also mentioned that “Private property shall not be taken or damaged for public use except
  • 12. U.S. Right to Privacy Griswold v. Connecticut 381 U.S. 479 (1965) – US Supreme Court struck down a law barring the use of contraceptives by married couples.  1st US Supreme Court case that recognize a right to privacy, but as part of the "penumbras formed by emanations from those guarantees [of freedom] that help give them life and substance“ - It’s a case by case basis determination.  Such guarantees include those of the Fourth Amendment, which protects private homes from searches and seizures without a warrant based on probable cause; of the Fifth Amendment, which prohibits the deprivation of liberty without due process of law; and the Ninth Amendment, which specifies that the enumerated rights in the Bill of Rights cannot be construed as being an exhaustive list of rights.  Lawrence v. Texas 539 U.S. 558 (2003) – Rectified that the right to dignity & privacy, even when not present in the U.S. Constitution, is a substantive right that emanates from the 14th Amendment; Is not enforceable against private individuals.  The Court mentioned some elements of dignity but did not used them as a basis for the protection of privacy.  If a fundamental right is violated (not only affected) strict scrutiny is triggered  In order to allow the State to violate the right to privacy it has to prove that it has a compelling interest and that it has no other measure to advance such interest - This protection aims to prevent the State from abusing its powers and to use it as an instrument of oppression or from
  • 13. P.R. Right to Privacy Art. II Sec. I establishes that the dignity of the human being is inviolable.  Art. II Sec. 8 specifies that everyone is entitled to protection of law against abusive attacks upon his honor, his reputation, his private life and family.  Art. II Sec. 10 expresses the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated.  Wire-tapping is prohibited.  No warrant for arrest or search and seizure shall issue except by judicial authority and only upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons to be arrested or the things to be seized.  Evidence obtained in violation of this section shall be
  • 14. P.R. Right to Privacy Figueroa Ferrer v. ELA 107 DPR 250 (1978) (No Fault Divorce) – In PR the right to privacy emanates from Art. II, Sections 1 and 8 of the Constitution. The PR Bill of Rights comes from the 1948 Universal Declaration of Human Rights; The PR constitution includes greater individual rights than the U.S. Constitution.  The state should not interfere in the natural activities of a family;  It is necessary to take into account the area where there is action in dispute.  In PR you can not talk about the right to privacy without reference to human dignity.  Belk Arce v. Martínez, 1998 TSPR109 – (dismissal by reason of pregnancy) The Court again mention that the right of privacy under Art. II, Sec. 8 operates ex propio
  • 15. Privacy & the Family in P.R. Rexach v. Ramírez 2004 TSPR 97 (Part III) - The right to privacy in PR and the protection of human dignity have an explicit constitutional origin; The State must refrain from intervening in the family sphere because that is where individuals develop their identity, which is an essential element of the concept of freedom.  Art. II, Sec. 1 of the PR Constitution provides for the inviolability of human dignity as cardinal principle of interpretation for all the rights recognized therein.  The Sec. 8 of provides that any person is entitled to protection of law against abusive attacks upon his honor, his reputation and family life.  In determining the extent of government intervention in family relations, the PR Supreme Court has found that in a democratic society organized around the fundamental human rights, the State must minimize its involvement.  No fundamental right is absolute; interference with private life be tolerated only when required extreme factors of public health and safety or the right to life and happiness of human being are affected.  In order to protect a compelling state interest, as is the welfare of children, parental rights may be limited; when they can not meet the needs of children, protect them properly or when children are abused they may be deprived, suspended or restricted of custody rights, parental authority
  • 16. Freedom of Speech, Press & Association  1st Amendment of the US Constitution:  “Congress shall make no law … abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  Art. II § 4 of the PR Constitution:  No law shall be made abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.  Art. II § 6 of the PR Constitution:  Freedom of association and organization - Persons may join with each other and organize freely for any lawful purpose, except in military or quasi-military organizations.
  • 17. Right to Consciousness  Art. II Sec. 3 also prohibits the establishment of religion and protects the free exercise of religion. It reads;  No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof. There shall be complete separation of church and state.  The last sentence specifically and concretely establishes the separation of church and state; a clause that is not found in the US Constitution, leaving no doubt about the existence of such separation in PR.
  • 18. P.R. Right to keep & bear Arms  There is no mention of the “right to keep and bear arms” in the PR Constitution.  Act 140 of 2000 (Ley de Armas de PR) prevents the right of citizens to own guns freely as required by the 2nd Amendment of the US Constitution; The PR Government stated that “By enacting this law, the State exercised its inherent power of regulation”.  Gun Registration Scheme - “Any legal firearm…shall be registered in the registry of weapons”.  Carrying a gun depends on approval by the Police of PR and is subject to limitations in their possession, carrying and use, among other things.  If you fail to license all of your activities including “target shooting” you are guilty of a felony and will be imprisoned.  Government officials have special privileges to carry and
  • 19. U.S. Right to keep & bear arms  The 2nd Amendment provides Americans a fundamental right to bear arms that cannot be violated by state and local governments.  District of Columbia v. Heller, 554 U.S. 570 (2008) – landmark case in which the US Supreme Court held that the 2nd Amendment of the US Constitution protects the individual's right to possess a firearm for private use within the home in federal enclaves.  The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to the states.  It was the first case in the history of the US Supreme Court that it is decide whether the 2nd Amendment protects an individual right to keep and bear arms for self defense.
  • 20. Future of Act 140 of 2000 (Ley de Armas de PR)  McDonald v. Chicago, 561 U.S. ___, 130 S.Ct. 3020 (2010) - The US Supreme Court hold that the 2nd Amendment applies to the individual states and that the right of an individual to "keep and bear arms" protected by the 2nd Amendment is incorporated by the Due Process Clause of the 14th Amendment and applies to the states.  Pueblo de PR v. Leonard Galleti Parrilla (2010)- Defendant claims that the Act 140 contradicts the determination of the US Supreme Court in McDonald (that should be applicable to the island because it is a fundamental right) insofar as it provides that the possession and carrying of weapons is a privilege not a right, and that mere possession is a felony; the statute establishes evidentiary presumptions that lead to the conclusion that the mere possession of a weapon is to be held and carried with the intent to commit a crime.  “Act 140 of 2000 in PR, impedes, in an irrational and exaggerated way, that decent citizens, lovers of law and order, could exercise their constitutional right to keep and bear arms for their protection”
  • 21. Section 20  The following section was adopted by the Constituent Assembly of the Commonwealth but rejected by the US Congress when approved the PR Constitution by a Joint Resolution on July 3, 1952;  Art. II Sec 20 - The Commonwealth also recognizes the existence of the following rights:  The right of everyone to receive free elementary and secondary schools.  The right of everyone to get a job.  The right of everyone to enjoy a standard of living adequate for themselves and their family's health, welfare and especially to food, clothing, housing, medical care and necessary social services.  The right of everyone to social protection in unemployment, sickness, old age or disability.  The right of every woman in critical condition and the nursing period and the right of every child to receive special care and assistance.  The rights set forth in this section are closely linked to the progressive development of the economy of the Commonwealth and require, for full effectiveness, sufficient resources and agricultural and industrial development has not reached the Puerto Rican community.  In its duty to foster freedom of the citizen, the people and government of Puerto Rico will endeavor to promote the widest possible expansion of its productive system, to ensure the fairest distribution of economic performance, and achieve better understanding between the initiative individual and collective cooperation. The executive and judicial branches shall bear in mind this duty and shall construe the laws that tend to fulfill in the most favorable way possible.
  • 22. 22 QUESTION S?