by Howard Hills, author of Citizens Without a State
Maybe the real lesson of the 2016 election is that change in federal law and policy is constant, but the words of the U.S. Constitution alone are the permanent legacy of American federalism. Presidents and their legacies come and go, Congressional legacies too, but the Constitution remains a permanent framework for managing a perpetual revolution by consent of the governed to ever-changing government policies and laws.
As a candidate in 1992, the legacy to which Bill Clinton aspired was to end the Reagan/Bush(41) legacy. In 2008 candidate Obama promised “real change” not delivered by the Clintons to end the Bush(43) legacy. Trump’s promise in 2016 was change ending not just the Clinton/Obama legacy, but also a Republican Party legacy of weak leadership.
From a position of political independence Trump ran as a Republican and made himself a metaphor for dramatic change, wresting the nomination from the GOP in a hostile takeover ratified by Republican primary voters. Clinton’s promise of continuity without offering change for the better deprived her campaign of a compelling logic for voters in key swing states.
The clear trend is for voters more than ever to reward whoever promises a legacy of more aggressive and high-impact change. Instead of swinging back and forth gradually over the political center, the ideological pendulum is swinging at an accelerated cadence between bipolar extremes. This reveals deep dissatisfaction with both parties in Congress and whoever is President. Governing from the center through bipartisan law and policy once was rewarded by voters, but in the current political atmosphere political returns on the narrative of robust change in federal law and policy are running as high as equity stock profits on Wall Street.
Of course, like bull markets political fortunes go up and down over time. No President’s policies or laws passed by Congress are constitutionally binding on a successor President or a future Congress. The federal courts can interpret and declare a policy or law unconstitutional, but court rulings too can be changed by later rulings handed down by judges appointed by the President and confirmed by Congress.
All laws, treaties and court rulings can be amended, repealed or reversed in the same manner originally given effect under the Constitution. In contrast, the Constitution can be changed only by amendment under Article V, and only constitutional amendments become part of the permanent law of the Constitution itself. That is the genius of the permanent system of American federalism enshrined in the Constitution.
That is the context in which we must recognize Puerto Rico’s current territorial status is defined by federal law and territorial policy that is constitutionally temporary. It is due to the lack of basic democratic political rights that reform and change have been obstructed for 118 years. Now, to confirm the results of a 2012 referendum signaling the political center among U.S. citizens in the territory has shifted, options for change to statehood or sovereign nationhood will be on the ballot in a federally sponsored referendum scheduled for June 11.
In today’s political climate, the federal law authorizing the referendum – passed by a Republican Congress and signed by President Obama – is a rare example of bipartisan policy that makes possible change for the better. Politically and economically, territorial status has culminated in a failed client state scenario that can be reversed so recovery is possible only through constitutional normality under statehood or nationhood.
U.S. sovereignty and our nation’s citizenship for all persons born in Puerto Rico exist under federal territorial laws applied to Puerto Rico, pursuant an 1899 treaty with Spain making Puerto Rico a U.S. possession. All federal territorial law as well as the territorial constitution and local laws are subject to alteration or extinguishment through the exercise of Presidential and Congressional powers. Yet, after more than a century of U.S. rule our fellow citizens in Puerto Rico are still denied government by consent through voting representation in Congress, a vote for President, and any voice in appointment of federal judges.
These conditions exist because federal judges have ruled that permanent law in the U.S. Constitution does not apply to Puerto Rico. That means the territory’s political relationship with the U.S. is defined only by federal law and policy, not by the Constitution itself. For the civil rights and political status of the people to become part of the permanent system of American constitutional federalism and government by consent of the governed, Puerto Rico must first be admitted as a State of the Union.
Once admitted as a State, U.S. sovereignty and citizenship under the Constitution will apply directly and of its own force. Statehood will give Puerto Rico and its U.S. citizens a permanent constitutionally defined fully democratic self governing status, on an equal footing with the other 50 States.
Puerto Rico is three times larger than Rhode Island, bigger than Delaware, half as far from Florida as Hawaii is from California, with combined land and water area equal to Connecticut. Its population of 3.3 million is larger than 20 current States of the Union. It is more integrated into the U.S. legal and political system than all 32 territories that became States.
The alternative to statehood is indefinite continuation of a less rather than more perfect form of union, or separate sovereign nationhood without U.S. citizenship. The defining act of democratic self-determination in which the people of Puerto Rico will express their will among those constitutionally valid status choices nears under bipartisan law and policy.
As with 32 other large U.S. citizen populated territories, how the President and Congress respond to that historical vote will perhaps do more to define a permanent constitutional legacy of our elected leaders than all of the other temporary law and policy on pressing matters of state that seem so urgent to us in 2017.