January 7, 2016
Puerto Rico’s fiscal difficulties, well reported in the press, have once again called into question the relationship between the island and mainland United States. I say once again because the relationship has evolved over time in complex and perhaps unanticipated ways.
The central question has always been how to afford Puerto Rico (and, for that matter, the other US territories) political autonomy while still maintaining a close relationship with the US. Luis Munoz Rivera and other Puerto Rican statesmen sought autonomy from Spain in the decade just before the Spanish-American War, and then found themselves in the same discussions with the United States. The Jones-Shafroth Act of 1917 allowed Puerto Ricans to choose US citizenship (the vast majority did), and established a local government subject to US oversight.
The authority for US oversight emanates from the Property Clause (also called the Territorial Clause) of Article 4 of the US Constitution, which reads:
The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
Several Supreme Court cases in the early twentieth century, collectively called the Insular Cases, determined the role of Congress in governing the so-called insular areas, i.e., the island territories obtained as a result of the Spanish-American War. The Court established that the territories belonged to, but were not part of, the US, and therefore Congress could determine which parts of the Constitution applied to the territories. Puerto Rico, Guam, and the Philippines, as unincorporated territories, were therefore granted a status different than the incorporated Alaska and Hawaii, for which the Constitution fully applied.
In 1922, the Supreme Court, in Balzac v. Porto Rico (sic), clarified the distinction between incorporated and unincorporated territories. The Puerto Rican jurist Juan R. Torruella, appointed to the First District court by Ronald Reagan, studied the Insular Cases and, in his book The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal (University of Puerto Rico: 1988), described the distinction as follows: “an unincorporated territory is a territory as to which, when acquired by the United States, no clear intention was expressed that it would eventually be incorporated into the Union as a State”. Torruella showed his status as a moderate jurist in 2012, when he helped declare the Defense of Marriage Act unconstitutional. (I wonder what Reagan would have thought of that).
The Insular Cases (seven or nine, depending on who does the counting) were all decided in 1901; six of them related directly to Puerto Rico. They echo to this day in that recent decisions affirm their logic. For example, in Harris v. Rosario (1980), the court held that providing less aid to Puerto Rican families with dependent children (as compared to mainland families) was not in violation of the Equal Protection Clause, since, in US territories, Congress can in effect discriminate against its territorial citizens. Justice Thurgood Marshall wrote a strong dissent, noting that the Insular Cases were questionable and reminding the Court that Puerto Ricans are US citizens.
In fact, Jose Trias Monge, a Chief Justice of the Puerto Rico Supreme Court from 1974 to 1985, wrote that the Insular Cases were based on ideas that could only be considered bizarre by current standards. These include:
- Colonialism and democracy are “fully compatible,” and
- There is “nothing wrong when a democracy such as the United States engages in the business of governing other” subjects that have not participated in their democratic election process.
The comments of Torruella and Trias Monge, and the Balzac case, came after an important change in status between the US and Puerto Rico, a change that reverberated into the United Nations and has implications to the current fiscal crisis. The change was caused in part by the actions of the sometimes violent Nationalist Partisans.
The Nationalists sought complete independence from the US. They sometimes resorted to violence to achieve their political ends In April 1932, Nationalist partisans marched to the Capitol to protest the adoption of the current Puerto Rican flag. In 1935, a confrontation between Nationalist supporters and police at the Rio Piedras campus of the University of Puerto Rico left five dead, including one police officer, in what became known as the Rio Piedras massacre. In 1936, Colonel Elisha Francis Riggs, the highest police officer on the island, was assassinated in retaliation for the massacre. The perpetrators, Nationalists Hiram Rosado and Elias Beauchamp were subsequently arrested and summarily executed at the San Juan police station. In Ponce, in 1937, a march by Nationalists celebrating Emancipation turned violent and 17 unarmed citizens died, as well as two territorial policemen. This event lives on as the Ponce Massacre.
The Nationalists, in spite of their activist policies, did not gain meaningful political power. The more practically minded Luis Munoz Marin founded the Popular Democratic Party (PPD) in 1940, with social and economic reforms as their primary agenda and independence a longer term goal. Six years later, dissidents who saw the PPD moving away from the goal of independence, founded the Puerto Rican Independence Party.
The Truman administration found itself in a difficult position. Puerto Rico was in effect a colony, and Truman, both publicly and privately, opposed colonialism. (One deviation: Truman did assist the French in their efforts to regain control over their former colonies in Indochina. The effects of that decision led directly to my year in Viet-Nam, 1968 69. But that’s another story).
The PPDs move away from independence was noted, and Congress responded, in June 1950, with PL 81-600, which allowed Puerto Rico to draft its own constitution, subject to two stipulations: the constitution had to create a republican government and had to include a bill of rights. A Constitutional Assembly was formed, and worked, starting in September, 1951 and into 1952 to draft the Puerto Rican constitution. The Puerto Rican electorate overwhelmingly ratified the new constitution on March 3, 1952, and Congress approved it, subject to some changes in wording in two sections, via PL 82-447, on July 3, 1952. Truman said, at the signing ceremony: “H.J. Res. 430 is the culmination of a consistent policy of the United States to confer an ever-increasing measure of local self-government upon the people of Puerto Rico. It provides additional evidence of this Nation’s adherence to the principle of self-determination and to the ideals of freedom and democracy.”
The Constitutional Assembly was reconvened and agreed to the wording changes. The Constitution defined the structure of the government (bicameral, with an Assembly and a Senate), courts, elections, powers and responsibilities, and other features. Governor Munoz Marin inaugurated the new constitution of July 25, 1952, and Puerto Rico officially became a Commonwealth (Estade Libre Asociado). Puerto Rico thus joined Kentucky, Pennsylvania, Massachusetts, and Virginia, as well as Dominica, the Bahamas, and Australia, as political entities with that name. And, by the way, July 25 became a Puerto Rican holiday.
The Nationalists did not accept the idea of a constitution, and, in 1950, began a series of protests that became known as the Puerto Rican Nationalist Party Revolts of the 1950s. In October 30, 1950, several uprisings occurred, notably at Utuado, Jayuya, and San Juan. Truman described these as “incidents between Puerto Ricans.”
Grisello Torresola and Oscar Collazo, Nationalists living in New York City, rejected Truman’s characterization of the October 30 uprisings, and planned to assassinate Truman to bring attention to their cause. Truman, living at the Blair House while the White House was undergoing renovations, survived the attack, but Torresola and one police officer died. Collazo was convicted in federal court; Truman commuted his death sentence to life, and President Carter released him for time served, in 1979. Collazo returned to Puerto Rico and died there, in 1994.
Nationalists struck again in Washington, on March 1, 1954, when four Nationalists ( Lolita Lebron, Rafael Cancel Miranda, Andres Figueroa Cordero, and Irving Flores Rodríguez) unfurled a Puerto Rican flag in a visitors gallery in the US Capitol and fired 30 rounds into members gathered on the floor of the House of Representatives, where they were debating an immigration bill. Five members were wounded; all survived. The four were captured, convicted, and sentenced to long sentences. Over the objections of the Puerto Rican governor, President Carter pardoned all four in 1978-79 and they returned to Puerto Rico. Figueroa Cordero died in 1979, of cancer; Flores Rodríguez in 1994, of a brain tumor. Lebrón and Cancel Miranda remained active in the liberation movement. Lebrón died in 2010, at age 90, after leading protests against the US Navy’s presence in Vieques. Cancel Miranda was awarded a medal from the Cuban government in recognition of his anti-colonial efforts.
The new constitution and status as a Commonwealth allowed the US to argue that Puerto Rico was no longer a colony, since it had the ability to govern its own internal affairs. The United Nations General Assembly, during its 8th session, in 1953, passed Resolution 748 (VIII) which removed Puerto Rico’s classification as a non-self-governing territory as defined under Article 73(e) of the UN Charter. The vote, even with considerable US pressure, was anything but overwhelming, with 20 votes for, 16 against, and 20 abstentions.
Puerto Rico’s political status is still being debated. In 1960, the United Nations General Assembly passed Resolution 1541 (XV) which lists the factors for determining when a colony achieved a full measure of self-government. However, the General Assembly did not apply the criteria to Puerto Rico. Cuba, starting in 1971, introduced annual resolutions to the UN’s Decolonization Committee asking for a reconsideration of the Puerto Rico case. The US consistently blocked General Assembly action, arguing that Resolution 748 removed Puerto Rico from the jurisdiction of the Decolonization Committee, and that the matter should be decided between Puerto Rico and the US.
The relationship between the US and Puerto Rico comes down to three alternatives: independence, statehood, and a continuation of territorial status, perhaps with mutually-agreed changes. Various plebiscites and referenda have never shown more than 4-5% of those voting in favor of independence. A referendum in the most recent election, November 6, 2012, found 54% of respondents rejected the current status under the Territorial Clause; a second question showed 61% of respondents favored statehood as the preferred alternative. There were, however, procedural issues with the wording of the questions, and so the results are ambiguous. As for the second question, 61% of those who voted on the question voted for statehood, but, for some reason, many voters did not address the question, and therefore the question did not get a majority of the total vote.
The ambiguities in the 2012 referendum notwithstanding, Pedro Pierluisi, the Puerto Rican Resident Commissioner to Congress, filed HR 727, the Puerto Rico Statehood Admission Process Act. If adopted, Puerto Rico would become the fifty-first state on January 1, 2021, if a majority of the electorate in Puerto Rico votes in favor of admission via a federally-sponsored vote. Congress has not yet taken any action of HR 727. By the way, if Puerto Rico ever does become a state, it will be the twenty-ninth or thirtieth most populous state, with a population similar to Connecticut, and be represented by 2 Senators and 4 or 5 Congressmen.
Puerto Rico thus remains in a political limbo, where the US Congress can determine whether or not, for example, the Puerto Rican government can declare bankruptcy so as to restructure debt, an opportunity afforded to US states and cities which, of course, are not subject to the Territorial Clause. Congress ducked the issue at the end of the session last December, much to Governor Padilla’s dismay, and in spite of his testimony before Congress.
This is an interesting time here – stay tuned.
Sources: I pulled together information from several Wikipedia entries for this piece. For more information, see Wikipedia entries on the Puerto Rican Constitution, Nationalism, general history, and political history, and several links in each of those entries.
The first image is the frontispiece from Thomas Hobbes’ The Leviathan. It has no particular relevance to this post other than that Hobbes’ treatise is an early discussion of social contract theory, and that Hobbes discussed the idea of commonwealth as an ideal for a political entity.
Citation for frontispiece: “Leviathan by Thomas Hobbes” by Unknown – http://www.loc.gov/exhibits/world/world-object.htmlhttp://www.securityfocus.com/images/columnists/leviathan-large.jpg. Licensed under Public Domain via Commons – https://commons.wikimedia.org/wiki/File:Leviathan_by_Thomas_Hobbes.jpg#/media/File:Leviathan_by_Thomas_Hobbes.jpg