Co-Director Adi Martínez Román's presentation before the Advisory Committee of Puerto Rico to the United States Commission on Civil Rights, May 10, 2023

Good afternoon and thank you for the opportunity to testify at today's public hearing. I am Dr. Adi G. Martínez Román and I appear as a Law professor and co-director/co-founder of the organization Right to Democracy. After 20 years assisting Puerto Rican communities in their struggles to defend themselves against institutional violence and forced displacement, and more recently in their post-disaster recovery efforts, we launched a few weeks ago this new project that seeks to confront the colonial framework created by the Supreme Court of the United States (SCOTUS) through the Insular Cases, which still affects more than 3.6 million people in the territories.

Our main objectives in Right to Democracy are to create a movement that pushes the United States’ government to recognize that it maintains its 5 territories as colonies and to get SCOTUS to revoke the legal doctrine that legitimizes said colonial governance. As an organization, we seek to address these issues in a different way, transcending partisan politics and ideological agendas in general. We do not favor any specific status formula beyond rejecting the current colonial relationship, and our values include collaboration across sectors and ideologies to create collective meaning, staying focused on changing the narrative, and avoiding toxicity that only serves to divide us while we struggle for self-determination.

My transition from community-based work to the macro and systemic framework, is largely due to the frustration felt when I see at how stuck we are. Puerto Rican communities, even though they empower themselves and fight for their sustainable development, remain under the yoke of a colonial government that does not attend to their needs, because they simply do not want to, or have to, listen to their voices. The systemic discrimination of the colonial government stands as a barrier of indolence against the perennial demands for more direct participation of communities in the matters that affect them.

In January 2021, I presented testimony before the United States Civil Rights Commission (USCRC) detailing the discriminatory effect of FEMA and HUD’s public policies in Puerto Rico, both in their content and their application (attached copy of said testimony). I explained how the same agencies in charge of recovery, both at the federal and local levels, do not respond to the solutions proposed by the communities, nor do they act with the attention or urgency that these processes require. The colony is clearly reflected in the lack of agency of civil society and the impossibility of being direct participants in determining our community’s realities.

It is important to point out that the stagnation identified and the lack of agency of local communities in the construction of their realities equally affect the other US territories – the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa. In just months of talking with the directors and advisors of Right to Democracy from those territories, I’ve discovered that, underlying our differences, lie crucial similarities related to the lack of decision-making power, the disdain on the part of agencies and components of the colonial government, and how there is stagnation due to lack of political will to promote the necessary change.

For this reason, we chose the name Right to Democracy to refer to both, the urgency for all the territories to move affirmatively and directly to a truly democratic system, and that people under the jurisdiction of the US government are guaranteed all Rights, civil and fundamental, that a Democracy entails. The very existence of democracy responds to Rights, that is, to the basic respect of human dignity and the fundamental value of self-determination that serves as the basis of Rights. To achieve true democratic Rights, it is essential to confront the colonial reality from its systemic roots, and to dismantle the legal framework that normalizes its existence.

This year marks the 125th anniversary of the Spanish-American War. It is imperative to promote the revocation of the disastrous decisions contained in the Insular Cases, the doctrinal framework that has framed, legitimized, and shaped our colonial and anti-democratic governance. My colleague and co-founder of Right to Democracy, a lawyer who has been litigating against the Insular Cases for more than 10 years, Neil Weare, explains that the primary reason for the US Supreme Court to adopt a permanent colonial system was clearly the racism against the populations of the acquired territories.[1] The same racist judges who ruled Plessy v. Ferguson in order to justify the policies of racial segregation known as Jim Crow, also decided the Insular Cases, ratifying or "constitutionalizing" a system of racial hierarchy.

As critics of these decisions, including conservative critics, very well explain, the Insular Cases encode into the political DNA of the US that it is okay to have colonies,[2] and correctly argue that both originalists and non-originalists must agree that these doctrines must be repealed as abominations in Constitutional Law.[3] At Right to Democracy, in addition to promoting a movement through participatory advocacy and the creation of a collaborative ecosystem, we will continue with strategic litigation, centered on the client and their community, to put colonialism on trial and seek the revocation of the racist doctrines of the Insular Cases.

The USCRC can be a key institution to push for recognition by the US Government of the still persistent anti-democratic, racist and colonial governance, and to promote the revocation of the Insular Cases. We call upon the USCRC to express a resounding rejection to the colonial legal framework created by these cases and ask the courts to completely revoke said scheme, since it has no place in Constitutional Law. We also request that the USCRC requires the Executive, especially the US Department of State, to stop applying the Insular Cases doctrine every time the Constitutional Rights of people living in the territories are analyzed. The USCRC recommendations would have the power to fuel a movement for change.

As has undoubtedly been presented through the testimonies this afternoon, the legacy of the Insular Cases continues to affect, directly and daily, the lives of the populations of the territories and their diasporas living in the States. It is simple, a Democracy without civil and fundamental Rights does not exist. To tear down the wall that prevents self-determination as a source of democratic Rights from materializing, we must defend the collaborative and participatory ways in which Rights materialize and become real. Therefore, it is a legal and moral imperative of this body to collaborate and help us guarantee the democratic existence of the populations of the territories.

Thank you for your time.

- Adi Martínez Román

Co-Executive Director, Right to Democracy

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[1] Neil Weare, Why the Insular Cases Must Become the Next Plessy, HARV. L. REV.: BLOG (Mar. 28, 2018).

[2] Joe Taitano II, Resolution Rejecting U.S. Supreme Court Insular Cases Heard, Pacific Daily News (May 5, 2021).

[3] Michael Ramsey, Puerto Rico and the Racist, Non-Originalist Insular Cases, The Originalism Blog (October 16, 2017).