Shortly before the hearing on Puerto Rico’s status held earlier this month, a group of constitutional law scholars from the University of Puerto Rico, Columbia, Yale, Harvard and across the nation collaborated on a letter explaining their support of HR 1522, the Puerto Rico Statehood Admissions Act, and pointing out legal problems with the competing proposal, HR 2070, the Puerto Rico Self-Determination Act.
Statement from U.S. constitutional scholars
The letter to House Speaker Nancy Pelosi (D-CA), Senate Majority Leader Chuck Schumer (D-NY), House Minority Leader Kevin McCarthy (R-CA) and Senate Minority Leader Mitch McConnell (R-KY) made several points:
- Self-determination options “There are two, and only two, real self-determination options for Puerto Rico: statehood and independence. Yet the Puerto Rico Self-Determination Act defies constitutional reality by calling upon Puerto Ricans to define other non-territorial options.”
- 2020 referendum “Last November, in an unmistakable effort to determine their political future, a clear majority of Puerto Ricans voted ‘yes’ in their own referendum on statehood.”
- US citizenship “Puerto Ricans have long shared an overwhelming consensus on two key points: They reject territorial status and they wish to remain U.S. citizens. But while both statehood and independence would fulfill the goal of self-determination, only one of those options would guarantee U.S. citizenship: statehood.”
- Offer of statehood “[T]he Puerto Rico Statehood Admission Act responds to the November referendum with an offer of statehood and sets the terms for admission, but it makes admission contingent on a second referendum in which Puerto Ricans would ratify their choice…[T]he Act does not force statehood on Puerto Rico in any way.”
Statement from Puerto Rican constitutional scholars
In response, a group of Constitutional law scholars from three Puerto Rico universities collaborated on a letter in which they were clear that they also did not endorse the “Puerto Rico Self-Determination Act” but provided additional perspective:
- Self-determination options “The letter makes a basic assumption that there are only two solutions to the current situation: statehood and independence. Some of us may ultimately agree with that assessment, which is not free from political preferences. However, there are people in Puerto Rico, not necessarily commonwealth supporters, who are willing to accept, and even endorse, a third option: what may be loosely called the status of free association.” (The letter nonetheless described this option as one involving “a sovereign Puerto Rico,” with an agreement with the U.S. Hearing witnesses described this arrangement as a form of independence.)
- 2020 referendum “The significance of these results in favor of statehood cannot be denied or diminished. However, to conclude that the issue is settled for the people of Puerto Rico is inaccurate.”
- US citizenship “The letter also seems to fully dissolve the question of the status of Puerto Rico into the issue of citizenship. Although citizenship is definitely one aspect of the problem, the political status question cannot be reduced to a matter of preserving U.S. citizenship or not. In fact, the assertion that the only way to guarantee U.S. citizenship to Puerto Ricans is through statehood is a highly problematic one.”
- Offer of statehood “In the 123 years of its relationship with Puerto Rico, the United States government has never made a clear, binding, offer to Puerto Ricans regarding statehood, independence or free association spelling out the terms and conditions of each choice…We can only hope that the discussion generated by the bills pending in Congress may be a fruitful step in that direction.”
The letter was explicit that the authors did not unanimously support HR 2070 in its current form. “This communication is not meant to endorse the Self-Determination Bill as it stands and its individual signatories reserve their right to support or not whatever final version emerges.”
The letter was signed by a dozen professors from the University of Puerto Rico, Inter-American University of Puerto Rico and Pontificial Catholic University of Puerto Rico.
The competing letter signed by 47 professors included representation from Inter-American University of Puerto Rico as well as the University of Puerto Rico.
All professors signed on to the letters in their individual capacity.
In an emailed response, Dr. Christina Duffy Ponsa-Kraus, who testified at the Congressional hearing and is Puerto Rican, responded to the letter from the Puerto Rican scholars.
Expressing gratitude to her colleagues, she identified several areas of disagreement:
- “Our letter supports the Admission Act, which responds to the referendum with an offer of statehood, which Puerto Ricans can accept or reject in a second referendum.”
- “The authors refer to the narrow margin of victory (52.52%) and to low voter turnout (54.72%)…The claim implies, though stops short of, the argument that a self-determination vote requires super-majority turnout and/or a super-majority vote for the option that prevails to go into effect. Whatever one’s view on that issue, it is not relevant to our letter, [which] takes the position that it is appropriate for Congress to respond to the result of the referendum with an offer of statehood, which Puerto Ricans may accept or reject in a second referendum.”
- “The authors identify as a point of contention the question of whether the political status of Puerto Rico should be addressed merely as a matter of U.S. domestic law or as a question governed by international law…Our letter takes a position on a point of U.S. constitutional law that informs our opposition to the Self-Determination Act, and takes a position in favor of the Admission Act as an appropriate response to the referendum.”
- “The authors claim that there is a ‘third option’: free association….Free association is a version of independence.”
- “Our letter states that as between statehood and independence, only statehood guarantees citizenship. This is a correct statement of basic constitutional law.”
- “The authors explain that the idea of a constitutional convention is not new, which implies that our letter suggests it is, and they claim that our letter ‘equate[s] support for statehood with rejection of the idea of a convention.’ Neither the implication nor the claim is correct.”
The Puerto Rico status bills remain pending before Congress.