All but a handful of the protections of the Bill of Rights have been applied to the states through the doctrine of incorporation.1 In 2010, the Supreme Court entered its latest pronouncement on incorporation, applying the Second Amendment to the states in McDonald v. City of Chicago.2 This case seemed to open the door for applying the remaining unincorporated rights to the states by casting doubt on the Court’s pre–selective incorporation3 precedents and articulating a “single, neutral principle”4 for assessing rights by focusing on their importance specifically within the American tradition.5 Recently, in Gonzalez-Oyarzun v. Caribbean City Builders, Inc.,6 the federal district court in Puerto Rico declared that the Seventh Amendment right to a civil jury trial7 applied to both the states and the territories in order to enforce a forum-selection clause directing the parties to a jurisdiction that did not provide for civil juries. The court’s move on the Seventh Amendment issue was a bold one in light of contrary, binding First Circuit precedent8 and the Supreme Court’s previous refusal to apply the Seventh Amendment to the states.9 But perhaps initially more remarkable was the district court’s almost complete reluctance to discuss Puerto Rico’s territorial status and its relevance to a Bill of Rights incorporation analysis. Under a typical reading of the Supreme Court’s Insular Cases,10 the “unincorporated territories” of the United States — which traditionally include Puerto Rico — do not enjoy the full protections of the U.S. Constitution.11 The analytical gap in Gonzalez-Oyarzun can be explained by the presiding judge’s prior decision in Consejo de Salud Playa de Ponce v. Rullan,12 which held — in seeming contradiction to the Insular Cases — that Puerto Rico was an “incorporated territory.”13 But by dodging the question of Puerto Rico’s territorial status and implicitly affirming Consejo de Salud’s holding, the federal district court spoke on a question best left to Puerto Rico’s political process.
Gonzalez-Oyarzun originated as a simple employment dispute. Faustino Gonzalez-Oyarzun began working as an administrator for Caribbean City Builders14 on February 5, 2007.15 Entrusted with handling the joint defendants’ real estate properties, he was by all accounts an excellent worker and was never disciplined.16 Despite Gonzalez-Oyarzun’s record, Caribbean City Builders fired him five-and-a-half years later.17 They never stated a reason for firing him, but weeks earlier had hired Pilar González and Ana Pabón, both in their late thirties to early forties, as his replacements.18 Gonzalez-Oyarzun was sixty-five years old at the time of his termination.19 Upon his release, he entered into a termination agreement waiving certain potential causes of action against Caribbean City Builders.20 The agreement also contained a clause directing the parties to the San Juan Court of First Instance — a territorial court of Puerto Rico — for resolution of any controversy arising from it.21
Notwithstanding the waiver, Gonzalez-Oyarzun filed a complaint against his former employers in federal district court under the Age Discrimination in Employment Act and subsequently submitted an amended complaint requesting a jury trial.22 Caribbean City Builders moved to dismiss the case on several grounds including failure to exhaust administrative remedies, waiver and release of causes of action under Puerto Rico law, and finally forum non conveniens based on the forum-selection clause.23 Gonzalez-Oyarzun contested the validity of the forum-selection clause on the grounds that the selected forum did not allow for civil jury trials in violation of his Seventh Amendment right.24 On May 1, 2014, the court ordered both parties to submit supplemental briefing on the question of whether the Seventh Amendment right to civil jury trial had been incorporated to the states, commonwealths, and territories.25
Authoring the opinion, Judge Gelpí began his evaluation of the validity of the forum-selection clause with a quick paragraph.26 First he quoted the seemingly unambiguous language of the clause.27 Then he declared the clause presumptively valid under the Supreme Court’s forum-selection precedents in Atlantic Marine Construction Co. v. U.S. District Court28 which together stand for the proposition that “forum-selection clauses should control except in unusual cases.”29
In evaluating forum-selection clauses, Bremen specifically requires enforcement unless doing so would be unreasonable or unjust or otherwise against public policy.30 Gonzalez-Oyarzun maintained that deprivation of the Seventh Amendment fell within the exception and so the presumptive validity of the clause should not hold here. Judge Gelpí acknowledged that in 2009 the First Circuit in Rivera v. Centro Médico de Turabo, Inc.31 had considered and rejected the “exact argument” raised by Gonzalez-Oyarzun.32 Rivera held that a forum-selection clause directing parties to a Puerto Rican territorial court constituted a valid jury trial waiver since the Seventh Amendment had not been incorporated through the Due Process Clause of the Fourteenth Amendment.33 Nevertheless, Judge Gelpí determined that recent, post-Rivera legal developments suggesting the Seventh Amendment right had been incorporated to the states changed the usual analysis by which courts evaluated forum-selection clauses.34 Persuaded that deprivation of a fundamental liberty interest would be unreasonable and unjust, and that protection of such an interest would be in furtherance of public policy, Judge Gelpí felt compelled to reevaluate the Seventh Amendment incorporation question despite Rivera’s mandate.35
The court began by establishing the Seventh Amendment’s historical significance as a “fundamental” fixture in American jurisprudence.36 Citing jurists who considered the jury trial “the most transcendent privilege”37 and judges who considered it a “bulwark against tyranny,”38 the court conveyed the “well-documented”39 attitudes of respected commentators to root the jury trial right in the nation’s history and tradition.40 Swimming in historical evidence, the court felt it could not but affirm the “paramount importance” and fundamental status of the civil jury trial right.41
The court turned from the Seventh Amendment’s historical pedigree to its incorporation status under Supreme Court and First Circuit jurisprudence. On the one hand, the Supreme Court held in Minneapolis & St. Louis Railroad Co. v. Bombolis42 Moreover, in Rivera the First Circuit had relied on Bombolis to reject the argument that a forum-selection clause directing litigants to a Puerto Rican court violated the Seventh Amendment.43 On the other, the district court noted that McDonald, decided just one year after Rivera, “open[ed] the door to selective incorporation of the Seventh Amendment.”44 By holding that the right to bear arms was “fundamental to our scheme of ordered liberty and system of justice,”45 McDonald seemed to “shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause.”46 Moreover, the Court explicitly cast doubt on cases like Bombolis that “long predate the era of selective incorporation.”47 Adhering to McDonald’s refusal to apply a “watered-down, subjective version” of the Bill of Rights to the states,48 the court held that — notwithstanding Rivera and Bombolis — the Seventh Amendment was incorporated.49
The court ended on a deferential note despite its consequential holding. While recognizing that the prerogative of expanding McDonald beyond the Second Amendment would “[o]rdinarily . . . belong[] to the Supreme Court,” the district court determined that McDonald directly controlled and thus compelled the present decision despite the contrary holdings of Bombolis and Rivera.50 The court expressed a hope that its reviewing court would not “construe [its] opinion as an effort by a lower court to avoid a directive of a circuit decision.”51 After all, according to the district court, ignoring McDonald’s mandate and instead following Rivera “would be a dereliction of duty” when the Seventh Amendment right hangs in the balance.52
More than merely incorporating the Seventh Amendment to the states, Gonzalez-Oyarzun incorporated the right to the commonwealths and territories of the United States.53 Significantly, the decision came down in the district court of Puerto Rico, a U.S. territory whose legal status is and has been a subject of intense debate. But the court largely omitted discussion of Puerto Rico’s legal status, assuming that a Seventh Amendment right incorporated to the states would necessarily be incorporated to Puerto Rico as well. The district court previously held that Puerto Rico is an incorporated territory in Consejo de Salud, and that decision is the necessary background that makes sense of the Gonzalez-Oyarzun court’s analysis. By delivering an avoidable Seventh Amendment ruling that bolsters Puerto Rico’s legal parity with the states, Gonzalez-Oyarzun represents a continued commitment to the principle that Puerto Rico is “incorporated” as articulated in Consejo de Salud. While the decision entailed a seeming expansion of individual rights, it interposes itself in an institutional question best decided by Puerto Rico’s own political processes.
At the outset, the district court seemed to miss a crucial step in its Seventh Amendment inquiry: whether Puerto Rico’s legal status affected the outcome of Seventh Amendment incorporation.54 The Insular Cases, beginning with Justice White’s concurrence in Downes v. Bidwell,55 introduced the concept of territorial incorporation to address whether the “Constitution follow[ed] the flag” in the newer territories acquired after the Spanish-American War.56 Unlike the Western continental territories that ultimately achieved statehood, these new island territories were perceived as different: they were “far off, not contiguous to the continent, . . . and, above all, inhabited by alien peoples untrained in the arts of representative government.”57 The territorial incorporation doctrine ultimately held that the Constitution applies fully in incorporated territories destined for statehood but only partially in those newer “unincorporated” territories.58 The Insular Cases, beginning with Downes v. Bidwell, and the subsequent case, Balzac v. Porto Rico,59 settled the question of whether Puerto Rico specifically had been incorporated into the United States, deciding it had not.60
Over one hundred years after the acquisition of Puerto Rico, its status as an unincorporated territory has been cast into some doubt and remains unclear. The Insular Cases have been condemned quite fairly for their racist undercurrents,61 but their holdings have not been outright overruled. Over time the Court has whittled away at the controversial unincorporated status that Puerto Rico ostensibly holds, lending credence to the notion that the island’s status may have evolved.62
A 2008 District Court of Puerto Rico case, Consejo de Salud, also decided by Judge Gelpí, purported to settle the question of Puerto Rico’s legal status. Amidst the growing uncertainty regarding Puerto Rico’s status, Consejo de Salud held that Puerto Rico was an incorporated territory, and therefore protected against disparate treatment in the granting of Medicaid monies.63 Judge Gelpí acknowledged the unfavorable precedents of the Insular Cases but held that case law and congressional action in Puerto Rico’s 110-year history as a U.S. territory had effectively incorporated the island.64 The court concluded that Puerto Rico was “chiseled in the very image and likeness of the United States system of government and laws,”65 and that allowing Puerto Rico’s status as unincorporated to persist was tantamount to allowing Congress to “switch on and off the Constitution.”66
Gonzalez-Oyarzun unmistakably depended on what was established in Consejo de Salud, without which the court would have had to engage in two separate analyses to apply the Seventh Amendment. First, for Bill of Rights incorporation of the Seventh Amendment, it would have had to prove the right was “fundamental to our scheme of ordered liberty and system of justice” or deeply rooted in the nation’s history under McDonald. Second, to determine whether the right applied in unincorporated territories, the court would have had to prove the Seventh Amendment was one of “those fundamental limitations in favor of personal rights”67 which are “the basis of all free government.”68 This latter inquiry was absent from the analysis.
Though the word “fundamental” seems central to each question, there is reason to believe the two doctrines embrace different understandings of what qualifies as such.69 The Insular Cases conducted a hierarchical line-drawing between rights that could be considered “fundamental limitations in favor of personal rights” which are “the basis of all free government” and “artificial or remedial rights” that were “peculiar to Anglo-Saxon jurisprudence.”70 For example, at the time of Puerto Rico’s acquisition, much of the Bill of Rights was considered applicable to Puerto Rico;71 the right to trial by jury, however, was not deemed “necessary and fundamental,” but instead found to “concern[] procedure mainly” and “constitut[e] a remedial right and a particular method of procedure peculiar to our Anglo-Saxon jurisprudence.”72 Under these precedents and considering the fact that Puerto Rican courts do not provide for juries in their civil system, it would seem incumbent upon the court to show not only that the Seventh Amendment was rooted in the nation’s history, but also that it was more than a mere procedural quirk of the American system.
Rather than engage in this analysis, the court not only tacitly affirmed its prior holding that Puerto Rico is an incorporated territory, but may have gone out of its way to recommit itself to this holding by ruling unnecessarily on the Seventh Amendment’s incorporation status. The Gonzalez-Oyarzun court viewed McDonald as all but dictating incorporation of the Seventh Amendment, but it is not altogether obvious that the court had to extend its opinion beyond a narrow ruling on the motion to dismiss. The most straightforward reason to avoid Seventh Amendment incorporation was the binding precedent of Rivera.73 Rivera enforced a similar forum-selection clause identifying a territorial Puerto Rican court and conveniently held that such a clause constituted a perfectly valid jury trial waiver.
Even after minimizing Rivera, the Seventh Amendment issue was factored somewhat unnaturally into the court’s Bremen analysis. To be sure, the court was careful to explain why the Seventh Amendment discussion is unavoidable during the Bremen forum-selection analysis: forum-selection clauses are not to be enforced if they are unreasonable or unjust or if they violate public policy; if enforcement of a forum-selection clause were to deprive a litigant of an important right because that right was not available in the chosen forum, such enforcement might be considered unreasonable or unjust.74 But Bremen itself only offered serious inconvenience, “fraud, undue influence, or overweening bargaining power”75 as the features that might work to make enforcement of a forum-selection clause unjust, unreasonable, or against public policy.76 In fact, courts routinely enforce forum-selection clauses directing litigants to local fora where civil cases are not tried by jury.77 The court’s expansive understanding of public policy violations would similarly threaten the enforceability of arbitration clauses, which are effectively jury trial waivers, and which lower courts and the Supreme Court have seemed indisposed to call “contrary to public policy.”78 Thus, the court could have enforced the forum-selection clause without deciding the constitutional question.
Consejo de Salud made much of the fact that Puerto Rico had governed itself through a well-functioning representative democracy during its time as a U.S. territory.79 But, perhaps in its zeal to equate Puerto Rico with the U.S. states, Gonzalez-Oyarzun ignored the unique legal features and experiments of that history.80 The resolution of Puerto Rico’s status should depend on principles of self-determination rather than judicial interpretation, but Gonzalez-Oyarzun focused on individual rights and wrests the decision of both territorial incorporation and, by extension, Bill of Rights incorporation away from the people most invested in its outcome.81 Affirming the conclusion of Consejo de Salud here circumvents democratic resolution of the issue of Puerto Rico’s territorial status.82 As recently as 2012, a plebiscite revealed the deep fissures surrounding residents’ preferences about the island’s future legal status.83 Given that the island’s residents themselves have not spoken with a unified voice regarding how they want Puerto Rico’s status to change, if at all, it seems particularly inadvisable for one federal court to speak for them.