Luis E. Fuentes-Rohwer & Guy-Uriel Charles, The Shame of the Territories (Indiana Legal Stud. Rsch. Paper No. 458, 2021).
Abstract: The US Supreme Court created a new doctrine—incorporation—as a temporary way station for newly acquired territories. The doctrine allowed Congress whatever time it needed to ensure that these new lands and its inhabitants were fit to join the United States permanently. The doctrine was also intended to serve an educative role, allowing for what the political elites of the day viewed as the uncivilized territorial subjects the needed time to acculturate to a supposedly superior Anglo-Saxon civilization. Yet a century later, territorial subjects remain unincorporated—and presumably implicitly uncivilized. Territorial subjects are stuck in a colonial status with no obvious path forward. All relevant institutions have shamefully failed them, from Congress and the President to the Supreme Court and federal agencies. In response to these failures, this Article argues that the status of Puerto Rico is a shame on the Constitution and our constitutional culture. It suggests that given that both the courts and the political process have been closed off to advocates who are seeking the end of colonialism in Puerto Rico, the only path forward is to shame the nation as a way to shift the constitutional norms at the heart of the colonial status of the territories. The Article draws from past historical moments to sketch out what role shame can play in constitutional interpretation and changing constitutional norms and jurisprudence.