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, 13 S.Ct. 3, 36 L.Ed. 869 (1892); in 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, 21 S.Ct. 743, 45 L.Ed. 1041 (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 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 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, 115 S.Ct. 1426, 131 L.Ed.2d 308 (1995), and in the Ninth Circuit case, 469 U.S. 1209, 105 S.Ct. 1174, 84 L.Ed.2d 323 (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 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, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (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, 2 L.Ed. 60 (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.

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, 96 S.Ct. 1917 ("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 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, 115 S.Ct. 2137, 132 L.Ed.2d 214 (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.

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, 8 S.Ct. 456, 31 L.Ed. 386 (1888); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L.Ed. 415 (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, 542 U.S. 692, 124 S.Ct. 2739, 2767, 159 L.Ed.2d 718 (2004). This is also true of the Inter-American Democratic Charter.6 The 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 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, 38 S.Ct. 309, 62 L.Ed. 726 (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 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 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" 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.

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.

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 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, 114 S.Ct. 1673, 128 L.Ed.2d 391 (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 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 183-84 (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"; 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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (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.

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 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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 43, 96 S.Ct. 1917, 48 L.Ed.2d 450 (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, 96, S.Ct. 1917. This limitation applies with undiminished force to actions for declaratory judgment. See Calderon v. Ashmus, 523 U.S. 740, 745, 118 S.Ct. 1694, 140 L.Ed.2d 970 (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, 57 S.Ct. 461, 81 L.Ed. 617 (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 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 180 (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 (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, 112 S.Ct. 2130, that the legislature will react in the way that he hopes, the redressability requirement has not been met. Cf. Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948) ("[I]f the President may completely disregard the 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 Igartú'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, 122 S.Ct. 2191, 153 L.Ed.2d 453 (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, 122 S.Ct. 2191. 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, 122 S.Ct. 2191 (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, 122 S.Ct. 2191. After receiving 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, 122 S.Ct. 2191.

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, 122 S.Ct. 2191. 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 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, 122 S.Ct. 2191 (quoting Franklin v. Massachusetts, 505 U.S. 788, 803, 112 S.Ct. 2767, 120 L.Ed.2d 636 (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, 122 S.Ct. 2191. 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, 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, 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 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

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 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, 107 S.Ct. 2672, 96 L.Ed.2d 654 (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.

In its haste to "put [plaintiffs-appellants'] constitutional claim fully at rest,"17 maj. op. at 148, 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 bane 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 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 147. 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, 58 S.Ct. 778, 82 L.Ed. 1234 (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.").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, 2 L.Ed. 60 (1803).

Because I believe that the majority fails to meet this duty, I respectfully dissent.

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 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 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).

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 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. 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, 16 S.Ct. 1138, 41 L.Ed. 256 (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 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 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 Cases:

We are also of opinion that the power to acquire territories by treaty implies, not 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, 21 S.Ct. 770.

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, 21 S.Ct. 770. 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, 21 S.Ct. 770.

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, 21 S.Ct. 770 (Fuller, C.J., dissenting).

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, 21 S.Ct. 770. 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. . . . 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, 21 S.Ct. 770.

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) — 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, 25 S.Ct. 514, 49 L.Ed. 862 (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, 42 S.Ct. 343, 66 L.Ed. 627 (1922), in which Chief Justice William Howard Taft,36 at this point writing for a unanimous court, held that no 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, 42 S.Ct. 343 (quoting Dorr v. United States, 195 U.S. 138, 148, 24 S.Ct. 808, 49 L.Ed. 128 (1904)). Contra Duncan v. Louisiana, 391 U.S. 145, 154, 88 S.Ct. 1444, 20 L.Ed.2d 491 (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, 42 S.Ct. 343. It was locality that counted, said Chief Justice Taft, "not the status of the people who live in it." Id. at 309, 42 S.Ct. 343. In language reminiscent of the racially-tinged asseverations of Justice Brown in Downes, Chief Justice Taft went on to say:

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, 42 S.Ct. 343.

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 Rassmussen]. . . . 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, 42 S.Ct. 343 (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. 1, 98 S.Ct. 906, 55 L.Ed.2d 65 (1978) (upholding Social Security Act provisions denying benefits to U.S. citizens who move to Puerto Rico); Harris v. Rosario, 446 U.S. 651, 100 S.Ct. 1929, 64 L.Ed.2d 587 (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, 76 S.Ct. 886, 100 L.Ed. 1342 (1956), reh'd granted 352 U.S. 901, 77 S.Ct. 124, 1 L.Ed.2d 92 (1956), and Reid v. Covert, 351 U.S. 487, 76 S.Ct. 880, 100 L.Ed. 1352 (1956), reh'd granted, 352 U.S. 901, 77 S.Ct. 123, 1 L.Ed.2d 92 (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, 42 S.Ct. 343, 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 474-80, 76 S.Ct. 886; Reid, 351 U.S. at 490-91, 76 S.Ct. 880 (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, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (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, 21 S.Ct. 743 (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, 74 S.Ct. 686, 98 L.Ed. 873 (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 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 151. 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 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 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, 88 S.Ct. 1444. 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, 21 S.Ct. 770 (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, 182 U.S. at 287, 21 S.Ct. 770, 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.

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, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000); Burson v. Freeman, 504 U.S. 191, 198, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992); Tashjian v. Republican Party, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986); Buckley v. Valeo, 424 U.S. 1, 49 n. 55, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Lubin v. Panish, 415 U.S. 709, 721, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 667, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Reynolds v. Sims, 377 U.S. 533, 561-562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Wesberry v. Sanders, 376 U.S. 1, 7, 84 S.Ct. 526, 11 L.Ed.2d 481 (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, 84 S.Ct. 526. "[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, 84 S.Ct. 1362, 12 L.Ed.2d 506 (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 fundamental rights to Puerto Rico. See Balzac, 258 U.S. at 312-13, 42 S.Ct. 343. 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, 96 S.Ct. 2264, 49 L.Ed.2d 65 (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, 74 S.Ct. 693, 98 L.Ed. 884 (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.

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. See Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 2764, 159 L.Ed.2d 718 (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, 20 S.Ct. 290, 44 L.Ed. 320 (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, 3 L.Ed. 769 (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 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 (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 o