On February 4, 1952, a constitutional convention in Puerto Rico adopted a resolution styling the island, in English, “the Commonwealth of Puerto Rico”. Four American states are also styled as commonwealths: Virginia, Pennsylvania, Kentucky, and my own Massachusetts. For the most part, it’s a charming artifact left over from an earlier political era. In the case of Puerto Rico, however, things get a bit more complicated.
The term commonwealth’s closest translation into Spanish is mancomunidad – a term used with some frequency in Spain and rarely outside of it. But in the Spanish version of Puerto Rico’s constitution, the term employed is not mancomunidad, but rather the title Estado Libre Asociado, or literally: Free Associated State. If you don’t know exactly what that’s supposed to mean, don’t feel bad. It doesn’t really mean anything.
Puerto Rico first came under American control after the Spanish-American War of 1898, the same one that saw Teddy Roosevelt and his Rough Riders storm up San Juan Hill, and which was described by the Secretary of State, John Hay, as “a splendid little war.” The causes of the war were varied, but part of the backdrop was an independence movement both in Cuba and Puerto Rico against Spain’s colonial government. As a result of the war, Cuba, Puerto Rico, Guam, and the Philippines came under American control. The US then went on to establish military governments to oversee the islands. Needless to say, Cubans and Puerto Ricans were, generally, not amused.
In 1917, just in time for World War I, the United States unilaterally extended American citizenship to all residents of Puerto Rico. This, not incidentally, made Puerto Ricans eligible for the draft. It did not, however extend the full protections of the Constitution. Under American constitutional law, Puerto Rico is classified as an ‘unincorporated organized territory’, which means that the island has a government (i.e. organized) but that it is not actually part of the United States (i.e. unincorporated). Can the United States apply a duty on goods imported from Puerto Rico? No, because it isn’t a “foreign country.” Do the protections of the Bill of Rights – including the right to a trial by jury – automatically apply to Puerto Ricans? No, because Puerto Rico is “foreign to the United States in a domestic sense.” Perfectly clear.
In 1946, the United States appointed Jesús Piñero as the first Puerto Rican governor of the island. In 1950, the US authorized Puerto Rico to draft its own Constitution, which was then ratified and adopted in 1952, after receiving approval from Congress. The document provides for self-government in areas not covered under federal law.
However, it should be emphasized that, as a matter of law, the powers of self-government that Puerto Rico enjoys derive not from the Constitution or from the people, but from the Congress, a body in which it has no voting representation. This means that despite having drafted a constitution, and having had that constitution approved, and having been governed by that constitution for the last half-century, Congress could set it aside with a simple vote. It also means any law in Puerto Rico can be overridden by Congress. And in this case there’s no ‘necessary and proper’ or ‘interstate commerce’ nonsense to hold things up: if Congress wanted to require a tax on stamps or tea, it could do so.
By this point, it should be clear what Estado Libre Asociado really translates to: colony. The fact that Puerto Rico is subject to an unmitigated relationship with an overseas legislature in which it is not represented is, in essence, the condition that led to America’s war of independence against Britain. Article 4, Section 4 of the United States Constitution reads: “The United States shall guarantee to every State in this Union a Republican Form of Government.” Simply put, Puerto Rico is not afforded that guarantee.
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Puerto Rico’s status as a colony is an obvious anachronism – a sort of Gordian Knot that no one quite knows what to do with. Take the question of self-determination: have Puerto Ricans been denied the opportunity to choose how they are governed? For a long time, it has been hard to tell.
Between 1967 and 1998, Puerto Rico held three separate plebiscites on the status of the island. In each, Puerto Ricans declined to endorse either statehood or independence. But there’s a two-fold problem with reading too much into those outcomes. First, the plebiscites were non-binding, which means that they were little more than glorified opinion polls. Second, because Congress refused to endorse the votes, there was little sense of what each of the available options entailed. In 1998, partly as a an expression of frustration, the preferred outcome in the plebiscite was “none of the above.”
But in a 2012 (non-binding) referendum, voters seemed to have opted for statehood. I say ‘seemed to’ because the ballot was complicated and there were some disputes about what the outcome actually meant. In any event, it’s clear that there is very little support for outright independence: an overwhelming majority of Puerto Ricans want some sort of continued relationship with the United States. So far, the US government has been willing to accommodate them.
But everyone should be clear that accommodation is all this is. The US keeps Puerto Rico on as a colony because it’s easier than expelling it, and Puerto Rico remains tethered to the US because, frankly, it can’t afford not to be. The question for everyone involved is: does pragmatism really trump principal so thoroughly?
I, for one, find it difficult to imagine how a Puerto Rican can tolerate colonial status. I also find it corrosive for Americans to tolerate 3.6 million people living under such a reduced class of citizenship. That’s 3.6 million putative Americans who can be drafted to fight in a war declared by a foreign legislature. Sorry – a legislature that is “foreign in a domestic sense.” The argument that Puerto Rico couldn’t manage on its own might be correct, but it’s also thoroughly dispiriting: what does it mean for a people to say, “No, actually, we’re not capable of governing ourselves?”
So, should Puerto Rico become a state? It’s a fascinating question. What would it mean for Puerto Rico to send two senators to Congress? Puerto Rico has more people than twenty-two American states, which would probably entitle it to half a dozen representatives in the House. It’s interesting to contemplate. With seven or eight electoral votes, what would happen to the race for President? And what about language? Puerto Rico recognizes both Spanish and English as official languages. But, while the United States’ lingua franca is English, it doesn’t actually recognize an official language. For years, there has been a push to give English that recognition, along with a fair amount of resistance. How would allowing Puerto Rico into the Union change that debate?
On the other side, things aren’t much simpler. Puerto Ricans think of themselves as enjoying a distinct national identity. A number of international bodies – like the UN and the International Olympic Committee – recognize Puerto Rico as a separate nation. American and Puerto Rican case law both recognize Puerto Rican citizenship as distinct from, even if entirely contained within, American citizenship. All of that is incompatible with statehood, which is, after all, a two-way street. Just ask Hawaii.
Thinking about this invites us to ask tough questions about what it means to be an American and what it means to so loudly proclaim our democratic principles. Puerto Rico’s status would be repugnant to any American state. That should make us think long and hard about being on the other side of the equation.
Follow Pedro on Twitter @IamPedroA.
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