Constitution is what we make of it

In March, President Trump declared a national emergency at the southern border. In a brazen lie, he declared that a wall was needed to stop a surge of drugs, terrorists, criminals, and individuals seeking to enter the United States illegally. In fact, many migrants follow the rules as they exercise their legal right to flee horrific conditions at home. No matter, the president declared, he will “win in the Supreme Court.”

It is tempting to conclude that our civil liberties will soon be confined to the bounds of a conservative judicial blueprint, especially hearing comments by Senate Majority Leader Mitch McConnell that the Senate would fill any vacancy on the Supreme Court even during an election year. The president’s judicial appointments so far have consolidated a conservative majority on the Court. But if justices matter, so do litigants – potentially including migrants reaching the border.

Rights are made and maintained by those who demand them. Take, for example, a Puerto Rican migrant named Isabel Gonzalez who faced deportation at a U.S. port of entry, fought back, and won. As the result of her fight, in 1904, the Supreme Court unanimously declared that Puerto Ricans were Americans and admitted her to the United States.

Gonzalez succeeded despite her day’s racist, rightward lurching Supreme Court. Those justices condoned Jim Crow segregation, disfranchisement of African Americans, virulently anti-Chinese laws, suppression of organized labor, and violations of treaties with American Indians. When the United States annexed Puerto Rico and placed it under colonial rule, the justices also upheld a new policy of indefinitely withholding statehood and full constitutional rights. The reason was blatantly racist – the belief that Puerto Ricans were unfit for self-government.

Like many migrants today, little about Isabel Gonzalez initially suggested that she would shift the course of constitutional history.  The young, poor, unmarried and pregnant mother was excluded from entry by Ellis Island immigration inspectors who judged her to be an undesirable alien.

But Gonzalez, who was well-educated and believed her personal and national honor were at stake, did not go quietly. She filed suit, asserting that she and all Puerto Ricans were U.S. citizens.  When she lost at trial, she appealed to the Supreme Court. She secured the best lawyer in the country for such cases, Frederic Coudert. He had just litigated blockbuster cases on U.S. colonialism and written the leading law article on Puerto Ricans’ citizenship.

Puerto Rico’s elected representative in Washington, the brilliant and charismatic Federico Degetau, also took Gonzalez’s side as a friend of the Court.

To press her cause, Gonzalez sacrificed her good name. She married during the appeal, which likely made her eligible to remain regardless of her citizenship. But she hid her marriage to maintain her case, a personally costly decision for the devoutly Catholic Gonzalez. She only disclosed the marriage to the press after her case ended.

As Gonzalez explained in published letters to the New York Times, the larger matter of national honor was at stake: The good word of the United States would be “nothing but bitter mockery and waste paper” if U.S. annexation did not bring Puerto Ricans the honorable status of citizens.

As the named litigant and Coudert’s client, Gonzalez also influenced his litigation goals. Just months before, Coudert had written an article recommending that Puerto Ricans be considered American nationals, occupying an intermediate status between citizens and aliens.  But Gonzalez rejected that “incongruous position.” When Coudert filed the brief on Gonzalez’s behalf, it advocated her goal of citizenship.

Finally, Gonzalez herself was a sympathetic metaphor for all Puerto Ricans. The government’s case rested on convincing the Court to treat Puerto Ricans as savages unfit for citizenship. The solicitor general equated citizenship for Puerto Ricans with the ostensible tropical “evils” of “overcrowding,” “primitive hygiene,” “low … standards of living and moral conduct,” and “extreme and willing indigency.”

Coudert played to the justices’ paternal sensibilities instead. He equated Puerto Rico with his client’s romantic distress: Will the United States leave “Miss Gonzalez … an undefined waif, on the sea of political uncertainty” or symbolically marry her, acknowledging that “she belongs to the United States, and may look to it for protection?”

Their efforts paid off. The Supreme Court issued a unanimous, if narrow, decision. It did not decide whether Puerto Ricans were citizens. But it did declare them to be Americans free to enter the mainland United States. Congress then went the rest of the way, collectively naturalizing Puerto Ricans in 1917. Soon, many other Puerto Ricans exercised the freedom of movement that Gonzalez had secured for herself and her family. Today, more Americans of Puerto Rican descent reside stateside than on the island.

As the Supreme Court again tilts rightward, Isabel Gonzalez reminds us not to despair. Individuals of conscience willing to sacrifice and struggle can still make the world better. They can even do so in court. After all, conservatism is no monolith, and Supreme Court justices are more than ideologies. A compelling litigant with a sympathetic cause may not reverse the retrogressive constitutional tide. But, as Gonzalez demonstrated, she can shore up sea walls around cherished constitutional values.

Sam Erman is professor of law at USC Gould School of Law. He is the author of Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (Cambridge University Press, 2018). Prior to joining USC Gould, Erman clerked for Judge John Paul Stevens and Judge Anthony M. Kennedy of the United States Supreme Court and Judge Merrick B. Garland of the United States Court of Appeals.