Annual Meeting on Law and Society

Separate and Unequal

Between 1898 and 1901, the United States invented a new tradition of territorial expansionism with a corresponding constitutional doctrine to rule the Spanish ultramarine territories annexed during the War of 1898. Anchored on the prevailing racist ideologies of Anglo-American exceptionalism, the ensuing constitutional interpretation has been described as the “doctrine of territorial incorporation,” the “Third View,” the “Insular Cases doctrine” or the doctrine of “separate and unequal.” Central to this constitutional interpretation is the idea that the United States can selectively rule “unincorporated territories” as foreign territorial possessions that belong to but are not a part of the United States.

For more than a century, the federal government has used this doctrine to develop contradictory laws and policies. Examples abound. Although Congress has enacted legislation extending birthright citizenship to persons born in the U.S. Virgin Islands, Puerto Rico, Guam and the Commonwealth of the Northern Marianas, other legislation and jurisprudence can treat these territories as foreign possessions in a domestic or constitutional sense. Presently, federal legislation ascribes a non-citizen nationality to persons born in American Samoa. Constitutional rights and federal laws can be withheld or applied differently in unincorporated territories.

The 2023 Law and Society Association’s meeting in Puerto Rico invites participants to experience a conference in a separate and unequal territory within the United States empire. Drawing on multiple disciplinary interpretations of the relationship between law and society, this meeting invites participants to reflect on the ways that the law normalizes discrimination and inequalities in unincorporated territories like Puerto Rico. We invite participants to reflect on how this year’s theme can become a lens to understand other relationships of power and visions of the relationship between law and society.