Pedro A. Malavet

The Inconvenience of a “Constitution [that] Follows the Flag ... but Doesn’t Quite Catch Up with It”: from Downes v. Bidwell to Boumediene v. Bush

Pedro A. Malavet — Tue, 16 Mar 2010 21:02:44 PDT

Boumediene v. Bush, resolved by the U.S. Supreme Court in June of 2008, granted habeas corpus rights, at least for the time being, to the persons detained at Guantanamo Bay Naval Station. The majority partially based its ruling on the doctrine of the Insular Cases, first set forth in the 1901 decision in Downes v. Bidwell. Additionally, the four dissenting justices agreed with the five in the majority that the plurality opinion of Justice Edward Douglass White in Downes —as affirmed by a unanimous court in 1922 in Balzac v. People of Porto Rico— is still the dominant interpretation of the Constitution’s Territorial Clause, abandoning the rule set forth in 1856 in Dred Scott v. Sanford. The Boumediene majority labels this a “situational” standard that allows it to pick which provisions of the Constitution will be enforced in the U.S. Territorial Possessions and now extraterritorially as well.

This article provides historical context and analysis of the Insular Cases, that series of decisions on the power of the U.S. government over territory and people under the Territorial Clause, and criticizes the Boumediene majority’s use of it to justify the “situational” application of constitutional rights to subjects of United States law, especially to those who are most “inconvenienced”: the territorial U.S. citizens. The article also points out the fallacy that these legal situations are temporary and transitional given that most of the current territorial possessions have been continuously occupied since the end of the Spanish American War in 1898.

I began work on this article a few weeks after the Boumediene decision was issued in an attempt to greatly expand a short contribution to an anthology into an article, and to discuss the Supreme Court’s most recent citation of the Insular Cases. But unforeseen circumstances forced me to move on to other projects and delay its publication. Luckily, this delay has given me the opportunity to revise the draft and to review the literature produced in response to the case. A LEXIS search of published law review articles found 506 articles that referenced Boumediene in their text. When that search was refined to articles referencing Boumediene and the Insular Cases together, it produced 48 article results. The study of the published articles leaves me almost as disappointed as I was in the Fall of 2008 with the level of study of the Insular Cases by the U.S. legal mainstream.

OpEd: Breaking UF Racial Barriers

Pedro A. Malavet — Tue, 10 Nov 2009 15:14:52 PST

An OpEd describing the legal and personal struggle to desegregate the University of Florida College of Law on the 50th Anniversary of the matriculation of the first African American Student, George Starke. The essay describes how Virgil Hawkins was the last lead plaintiff in the litigation that produced Mr. Starke's matriculation and led to the graduation of W. George Allen.

The Story of Downes v. Bidwell: "The Constitution Follows the Flag ... But Doesn't Quite Catch up With It"

Pedro A. Malavet — Thu, 29 Oct 2009 10:25:48 PDT

A study of the principal decision of the Insular Cases of 1901, which has provided constitutional authorization for the U.S. territorial empire for over a century. The cases were most recently referenced by the U.S. Supreme Court in its 2008 opinion in Boumediene v. Bush.

Afterword: Outsider Citizenships and Multidimensional Borders: The Power and Danger of Not Belonging

Pedro A. Malavet — Mon, 26 Oct 2009 14:55:51 PDT

A critical review of the essays and articles included in the LatCrit VIII Symposium issue.

Introduction: LatCritical Encounters with Culture, In North-South Frameworks

Pedro A. Malavet — Mon, 26 Oct 2009 14:52:38 PDT

A critical introduction of a group of articles in the LatCrit VI Symposium issue, discussing the authors' diverse approaches to Latin American legal cultures and contextualizing the publications in the growing body of LatCrit scholarship.

Reparations Theory and Postcolonial Puerto Rico: Some Preliminary Thoughts

Pedro A. Malavet — Mon, 26 Oct 2009 14:47:54 PDT

Applying recent Critical Race Theory reparations discourse to inform Puerto Rico's transition to any one of the three legitimate post-colonial status options.

The Accidental Crit II: Culture and the Looking Glass of Exile

Pedro A. Malavet — Mon, 26 Oct 2009 14:44:48 PDT

A LatCritical look at the then-current "Latina/o Musical Moment" represented by the popularity of artists like Carlos Santana, Ricky Martin, Jennifer López, Enrique Iglesias, Marc Anthony, and Christina Aguilera. It specifically focuses on competing cultural constructs of Latinas/os generally, and Puerto Ricans in particular, re/viewed from the author's perspective of exile along the cultural borderlands of Puerto Rico and the Estados Unidos de Norteamérica (the U.S.A.).

Puerto Rico: Cultural Nation, American Colony

Pedro A. Malavet — Mon, 26 Oct 2009 14:41:31 PDT

A study of Puerto Rico's century-old legal relationship with the United States, and how it constructs Puerto Ricans as legal and social second-class citizens because of their cultural nationhood. The discriminatory treatment conflicts with contemporary notions of justice and morality in postmodern political and legal philosophy. The article articulates a framework for legal reform that is consistent with a new progressive theoretical construct of a pluralistic and communitarian form of liberalism. I further developed the material that I discuss in this article in my book: America's Colony: The Political and Cultural Conflict Between the United States and Puerto Rico (NYU Press 2005) (paperback edition 2007).

[The Accidental Crit I:] Literature and Arts as Antisubordination Praxis LatCrit Theory and Cultural Production: The Confessions of an Accidental Crit

Pedro A. Malavet — Mon, 26 Oct 2009 14:37:56 PDT

This short article: (1) explains the development the Arts Panel at the LatCrit IV Conference and provides an account of its substantive content; (2) it gives the author's reactions to the presentations, while placing them within the planned description and written questions, locating them within the contemporary debate over the use of narrative in legal scholarship and in postmodern philosophical discourse more generally; and (3) the author gives a narrative about his own reluctant, difficult, and ultimately accidental gravitation towards LatCrit theory.

The Foreign Notarial Legal Services Monopoly: Why Should We Care?

Pedro A. Malavet — Mon, 26 Oct 2009 14:33:08 PDT

This piece serves three purposes: (1) briefly to take issue with the current treatment of comparative scholarship, especially how it is ignored by main law reviews; (2) to be a succinct introduction to the Latin Notary; and (3) to point out that the adversarial ethic and notarial impartiality can co-exist and even complement one another. It presents the notary as an example of a non-adversarial ethic, in a system that has other professionals who are ruled by the adversarial ethic. It does not advocate the abandonment of the adversarial ethic, but, rather, argues that in certain legal situations a non-adversarial approach can work best.

The Non-Adversarial, Extra-Judicial Search For Legality And Truth: Foreign Notarial Transactions As An Inexpensive And Reliable Model For A Market-Driven System Of Informed Contracting And Fact-Determination

Pedro A. Malavet — Mon, 26 Oct 2009 14:29:37 PDT

Notarial transactions are specialized contracts, which in most of the world are written and certified by a legal professional known as a notary, who obviously is not the U.S. notary public. These, in effect, lawyers, practice a liberal profession so endowed of the public trust that they are expressly made alternatives to judicial proceedings. Hence, the notarial form is an extra-judicial certification of legality and truth, often comparable to our court judgments. This system guarantees honesty and legality while avoiding or resolving disputes, at a very low cost, when compared to American law practice and certainly when compared to litigation.

Counsel for the Situation: The Latin Notary, a Historical and Comparative Model

Pedro A. Malavet — Mon, 26 Oct 2009 14:24:31 PDT

Can a lawyer, in certain matters, be an impartial counsel for the situation, rather than an advocate for either party? The Latin Notary is a legal professional of the Civil Law world that is expected to be a non-adversarial, expert legal counselor to every party to a transaction. The State seeks to ensure impartiality by imposing on the notary very strict training, admission and ethical requirements. In exchange for such high demands, the state often grants the notaries profitable subject-matter and geographic monopolies. Covers historical development, current definition and scope, relation to "lawyer as intermediary" of Model Rule 2.2.

From Downes v. Bidwell to Boumediene v. Bush: "The Constitution Follows the Flag ... but it [still] Doesn't quite catch up with It"

Pedro A. Malavet — Fri, 29 Aug 2008 12:20:30 PDT

Boumediene v. Bush, resolved by the U.S. Supreme Court in June of 2008, granted habeas corpus rights, at least for the time being, to the persons detained at Guantanamo Bay Naval Station. The majority partially based its ruling on the doctrine of the Insular Cases, first set forth in the 1901 decision in Downes v. Bidwell. Indeed, the court was unanimous that the plurality opinion of Justice Edward Douglass White in Downes is still the dominant interpretation of the Constitution’s Territorial Clause, abandoning the rule set forth in Dred Scott v. Sanford. This article provides historical context and analysis of the Insular Cases, that series of decisions on the power of the U.S. government over territory and people under the Territorial Clause and criticizes the majority’s use of it to justify the “situational” application of constitutional rights to subjects of United States law. The article also points out the fallacy that these situations are temporary and transitional given that most of the current territorial possessions have been continuously occupied since the end of the Spanish American War in 1898.