Competing With Fiction: The Truth Behind Puerto Rico's Status Issue

Current Political Status

            For the past 115 years Puerto Rico has been a territory of the United States of America governed and subject to the provisions of Article IV, Section 3, Clause 2 of the U.S. Constitution. The territorial clause grants Congress the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. As an effect, the sovereignty of the people of Puerto Rico lies in the hands of the United States Congress.

Political Title

         There are multiple ways in which one can refer to Puerto Rico. First of all you have the name of “territory”, which is politically correct since the island is under the jurisdiction of the territorial clause of the U.S. Constitution. The term of “territory”, unlike the other titles with which one could refer to the island, directly designates and defines a form of status for Puerto Rico. Other than this we have the “Estado Libre Asociado de Puerto Rico” (Free Associated State of Puerto Rico, in English) which is the official name of the island as designated under the Constitution of Puerto Rico. It is imperative to specify that this “Estado Libre Asociado” does not define any form of status for island but rather is the political name for the territory of Puerto Rico. Lastly, some people refer to the territory as a “commonwealth”. This term is not wrong, Puerto Rico is in fact proclaimed as a commonwealth at the state level. However, the term “commonwealth” does not specify any form of political status for the island. This is proven as Kentucky, Massachusetts, Pennsylvania, and Virginia also bear the title of commonwealth in their respective state names.

Current Political Status for “Commonwealthers”

            In Puerto Rico there are two main political parties, the New Progressive Party (PNP, for its acronym in Spanish) and the Popular Democratic Party (PPD, for its acronym in Spanish). The PNP is the party that believes that statehood is the best option to resolve Puerto Rico’s political status problem while the PPD is the party that believes in maintaining the political status we currently have in the island. For the members of the Popular Democratic Party, Puerto Rico has a status unique from any other as it is neither territorial nor colonial. In the minds of the status-quo supporters, Puerto Rico’s status changed in 1952 with the drafting of the United States constitution and became a new kind of state, with the same powers the states have to organize themselves for purposes of local government. In short, for those who believe in the commonwealth, Puerto Rico has its unique form of government that is neither territorial nor colonial but has the potential to stay the same and become better through amendments. Lastly, they believe that the commonwealth should not be subject to the plenary powers of the United States Congress.

What do “Commonwealthers” want the status to be?

            The Popular Democratic Party, main political entity in support of the status-quo, states that the ideal solution to the status problem is maintaining the Estado Libre Asociado while carrying it to completion. This form of government is often referred by them as the “enhanced commonwealth” and consists of the following ideals:

·      Mutually-binding consent between Puerto Rico and the United States

·      Sovereignty rests with the people of Puerto Rico

·      The transfer of Puerto Rican lands from the U.S. to Puerto Rico

·      Maintain common defense and market, U.S. currency, Nutritional Aid Program, and Educational Pell Grants

·      Have the capacity and authority to enter into trade and tax agreements with other countries and belong to regional and international bodies

·      An annual economic block allotment with corresponding inflationary adjustments from the U.S. to Puerto Rico to cover the costs of:

o   social benefits

o   public works

o   infrastructure

o   incentives for the opening of jobs

o   special incentives programs for investment on the island

Is this view realistic?

            In a word, no, this view of an “enhanced commonwealth” is in no way realistic. The basis for this answer is the fact that every proposal that has ever been introduced has been rejected by both the members of Congress and the executive branch of the United States under democratic and republican administrations alike. An example of this is H.R. 4751, a bill presented into the United States House of Representatives on June 26^th, 2000 by the Hon. Doolittle of California and referred to the Natural Resources Committee. The committee celebrated one hearing on this bill and, in the end, managed to find a total of zero (0) congressional cosponsors.

2012 Plebiscite

            On November 6^th, 2012, on the same day as the general elections, a status plebiscite was held in the territory of Puerto Rico. This plebiscite was composed of two questions in the same ballot: (1) Do you agree that Puerto Rico should continue to have its present form of territorial status? Yes or No. (2) Please mark which of the following non-territorial options would you prefer? Statehood, Independence, or Sovereign Free Association. The official results of the status plebiscite where as follows:

·      Question 1:

o   No- 53.97% (970,910 votes)

o   Yes- 46.03% (828,077 votes)

·      Question 2:

o   Statehood- 61.16% (834,191 votes)

o   Independence- 33.34% (454,768 votes)

o   Free Association- 5.49% (74,895 votes)

Why is it different from all past plebiscites?

            Throughout Puerto Rico’s history, a total of 4 plebiscites have been held: 1967, 1993, 1998, and 2012. The plebiscite held this past November 2012 is different and distinct from all others for various reasons. For example, this query had the highest voter turnout in status plebiscite history with a 79% of voters filling out the ballot. However, the main reason for which the 2012 plebiscite was so transcendental and distinct from any other previously held status consultation was that it gave the people an opportunity to vote on their opinion of the present form of territorial status that Puerto Rico holds with the United States of America. In the 1993 and 1967 status referendums, where the choice of “Estado Libre Asociado” option came out victorious, the definition of such was not that of our current territorial status but rather a variant form of it with a series of enhancements such as:

·      Making the relationship between the U.S. and Puerto Rico a permanent one with inviolable common citizenship

·      Mutually-binding consent between Puerto Rico and the United States

What are the main PPD arguments against this plebiscite?

            Since the days before the rejection of the “Estado Libre Asociado” in the 2012 plebiscite, the Popular Democratic Party already had an argument against various elements regarding the plebiscite. As mentioned, this consultation was the first one in history in which Puerto Rico’s current political status was considered as it should legally be, a territory of the United States. The “commonwealthers” fiercely opposed the mere event of holding a plebiscite, and for various reasons. First of all, in the Resolution of the Governing Board of the PPD rejecting the status query in February 11^th, 2012, it was stated that they would not tolerate the fact that a plebiscite be held on the same day as the general elections as it was “a mechanism to hide their [incumbent PNP administration] ineptitude, abuses, and lack of substantive work. It's a ruse to distract the people on an important issue, knowing that this alleged consultation lacks all legitimacy and thus prevent the people from judging him [incumbent PNP Governor Luis Fortuño] by his government.” Secondly, they created another argument in which they reclaimed, through the same document, that “Neither the current Free Associated State nor the Free Associated State in its development are on the ballot and that the Commonwealth is not and should not be subject to the plenary powers of the United States Congress”. Lastly, they protested against the consultation for the absence of the option of “None of the above” as one of the available in the ballot, which was the one they did campaign for in the 1998 plebiscite, where it came out with 50% of the votes while the “Estado Libre Asociado” got 0.3% of the votes.

What is the foundation/root of their arguments?

            The main argument the Popular Democratic Party uses to oppose the plebiscite is that they do not recognize the inclusion of the apt definition of the Free Associated State or the Free Associated State in its development. The root of this argument comes from the establishment of the “Estado Libre Asociado”. Since that very day in July 25^th, 1952 the PPD has failed to recognize a common definition for the ELA or a path to follow in the future for its “development”. Also since that day, the PPD has proclaimed that the island’s status was no longer a territorial one and that it shouldn’t be subject to the plenary powers of Congress, specifically the “territorial clause”.

Is this argument valid? Why or why not?

           

            The argument presented above specifies that Puerto Rico as an “Estado Libre Asociado” is a change from the territorial status we were proclaimed as before 1952 to a new kind of state that is neither colonial nor territorial and, consequently, should not legally be referred to as a territory. Oddly enough, this asseveration is not validated with any statement, fact or legal resolution released by anyone other than the very members and supporters of the Popular Democratic Party. In the Law 600 permitting the creation of the Puerto Rico Constitution it is clearly stated that “Puerto Rico will remain a territorial possession of the United States, as expressed in sections of the Jones Act.” Also, Antonio Fernós Isern, the Resident Commissioner and leader of the PPD at the time Public Law 600 was approved in Congress, stated in a hearing on the S. 3336 (eventual Law 600) that “S.3336 would not change the status of the island of Puerto Rico relative to the United States. It would not commit the United States for or against any specific future form of political formula for the people of Puerto Rico. It would not alter the powers of sovereignty acquired by the United States over Puerto Rico under the terms of the Treaty of Paris.” This argument, without a doubt, is not validated in any way.

           

Of Prohibiting the State Nullification of Federal Laws

The laws and policies approved by the federal government, in virtue of the authority conferred upon them by the collectivity of the people of the United States, should be considered the supreme law of the land. To limit the scope of my argument, I will discuss the debates that sparked after the national government tried to pass a protective tariff in the United States with the aim of northern industries. The two sides of this debate included the ones who, such as Vice President John C. Calhoun, advocated a state’s right to individually nullify any and all laws they deemed unjust, whilst other exponents, such as Senator Daniel Webster and President Jackson, advocated for the supreme legitimacy of the policies of the Federal government over states. From my perspective, the laws approved and adopted by the national government reign supreme over any other state or local laws that may go against them.

Around the second decade of the nineteenth century the national legislature attempted to implement a series of tariffs to protect industries mostly in the northern United States. Using the argument that this piece of legislation benefitted some citizens of the nation (the northerners) while placing a burden on the rest (the southerners), southern political leaders advocated for the right of states to individually decide nullify acts of Congress that they viewed as unjust. For this point to be justified we must assume that the nation itself was created by the states individually rather than by the people collectively. However, this statement is unsubstantiated by the very realities and composition of American government.  

The argument that states have the power to veto national laws is flawed since they do not delegate powers to the federal government and therefore don’t have the authority to undermine it. Rather, it is the people collectively who participate in the national government, and it is they who decide which policies are to be implemented throughout the whole country. Andrew Jackson presents a perfect example to justify this by stating that Congress represents the will of the whole nation rather than the will of specific states. He says, “Each state elects its own representatives… When chosen, they are all representatives of the United States, not representatives of the particular states where they come from” (Major Problems, page 272.) Thus, laws such as the protective tariffs that are passed in Congress are approved by the will and have the consent of the people and, therefore apply to the entirety of the states without exception. To be clear, this does not mean that President Jackson did not support states’ rights but rather that he placed the rights of the union over theirs. As “Liberty, Equality, Power” puts it, “Jackson favored states’ rights but only within a perpetual and inviolable union” (Liberty, Equality, Power, Page 396.) In other words, states had designated rights up until the point they became a threat to the unity of the nation.

Another important point that counters Calhoun’s argument is that, should a state government be permitted the right to veto any federal law, then the legitimacy of the national government would be perpetually disbanded. As “Liberty, Equality, Power” says, “To allow a state to veto a tariff would be to deny the legal existence of the United States” (Liberty, Equality, Power, Page 396.) This is so since states would no longer be legally obligated to follow the will of the people through the national government. Other than this, John Marshall made similar remarks regarding the Supremacy of the Constitution over state laws by stating that, if states may alter federal laws when they please, “then written Constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable” (Major Problems, Page 174.) Thus, in order for the people to successfully limit the powers of states, they must ensure that the supremacy of national law reigns supreme. Should states be able to undermine the authority of the federal laws, then the unity is disbanded and the nation becomes a confederation of sovereign states rather than a union.

Conclusively, the people of the United States of America, as the ones who granted power and created the union, and the federal government, acting as the undoubted representative of the collective will of the electorate, have the authority to create laws that are not to be undermined by the mandate of any individual state. Undermining the legitimacy of the laws of the national government is undermining the whole legal existence of the American union. We, the people, then, must recognize the authority of the national government over that of a state’s to preserve the integrity of the United States and truly fulfill the duty listed in our Constitution of creating “a more perfect union” (Preamble to the United States Constitution.)

-Kevin D. McClintock