By Jose Fuentes Agostini
But Puerto Rico wants U.S. to set the record straight on past, present and future self-determination process
All people of conscience and commitment to human liberty should welcome the robust debate that has ensued with respect to the letter from the U.S. Deputy Permanent Representative to OAS addressed to IACHR dated June 28, 2018. That letter concerns U.S. law and policy implicated in two formal petitions relating to the political status and civil rights of 3.3 million U.S. citizens domiciled in the U.S. territory of Puerto Rico.
One of the above-referenced petitions, from a former Governor of Puerto Rico, alleges that denial of full federal voting rights to U.S. citizens in Puerto Rico is a discriminatory violation of human rights recognized under U.S. and international law. The other petition, by an individual U.S. citizen in Puerto Rico, claims U.S. citizens in the territory have the right under U.S. and universal human rights law to vote in U.S. presidential elections.
There is a conspicuous need to clarify legal principles and facts applicable to the topics addressed in the June 28 letter from the U.S. Mission to the OAS on Puerto Rico’s status. The following analysis of that U.S. diplomatic communication has been submitted by the Puerto Rico Statehood Council for the record of the IACHR proceedings scheduled at Boulder, Colorado on October 5, 2018.
There are significant areas of common ground and even some promising potential breakthroughs in federal-territorial relations implicated in the U.S. policy statement transmitted to IACHR on June 28, 2018. This includes the following selected excerpts from that letter, which recognize the ongoing progress toward resolving Puerto Rico’s political status:
“…through a plebiscite, held on June 11, 2017, the majority of Puerto Rico voters indicated…that they desired to pursue status for Puerto Rico as a U.S. state.”
“Following the plebiscite, Puerto Rico’s Governor… aided by…the Puerto Rico Statehood Commission…declared intent to follow the ‘Tennessee Plan,’ whereby a U.S. territory holds a popular vote that favors statehood, establishes a constitutional state government, and then sends putative representatives…to Washington…”
“Notably, on January 4, 2017, prior to the Statehood Commission’s creation, Puerto Rico’s Resident Commissioner to the U.S. House of Representatives, Jenniffer González-Colón, submitted proposed legislation to Congress that would grant statehood to Puerto Rico (H.R. 260)”
“The United States cannot predict the outcome of this political process.”
“The United States emphasizes, however, that all past U.S. territories that became U.S.states, other than the territories for the original 13 states, completed a political process culminating in Congress granting statehood and extending to the residents of that territory all the rights of a state under the U.S. Constitution, including the right to vote in presidential general elections and the right to be represented in Congress by two senators and a numberof representatives in the House of Representatives commensurate with the new state’s population.”
“Puerto Rico has not yet completed this political process.”
Taken together, these formal observations and pronouncements constitute U.S. recognition that Puerto Rico has taken steps and satisfied historical conditions precedent for admission to statehood:
- Adopted a constitution instituting a republican form of government;
- Informed self-determination favoring statehood by majority rule;
- Transmitted formal petitions to the U.S. government for admission as a state on equal footing with all other states.
In its June 28 letter, the federal government recognized statehood as the political status option proposal formally pending between the territory and the federal government. Puerto Rico has presented the U.S. with a legally valid proposal for ending constitutionally temporary territorial status and instituting a permanent constitutionally defined status based on self-determination.
The only alternative permanent status is nationhood based on the right of independence, with or without a treaty of free association. Independence has never received a vote higher than 6%, and sovereign free association never garnered a plurality much less a majority in any local act of self-determination.
Concomitantly, the U.S. statement is historically, constitutionally and legally correct in its clarifications consistent with the following principles:
- Denial of state voting rights in territories is by operation of Article I, Section 2 and Article II, Section 1 of the U.S. Constitution, allocating and apportioning federal voting rights for election of Congress and President exclusively to states of the union.
- Persons born in Puerto Rico and other “unincorporated” territories acquire U.S. nationality status under federal law, including those classified “U.S. citizens” by federal territorial law statutes, but as residents of “unincorporated” territory do not have a present right to vote in federal elections for full and equal representation in the U.S. Congress or Electoral College that chooses the President.
- Under the U.S. Constitution federal elections are not decided by national popular majority vote, but rather by giving full effect through the constitutional process to the majority vote in each state, ensuring political power is distributed throughout the union.
- State based federal voting rights bind the union together through government by consent as a right of national citizenship that can be exercised only through citizenship and eligibility to vote in a state.
- The anachronistic “unincorporated territory” doctrine of the so-called “Insular Cases” decided prior to America’s mid-20th century civil rights reforms is not the source of federal law denying voting rights in federal elections in Puerto Rico or other territories equal to voting rights in the states, as demonstrated by denial of federal voting rights in all territories incorporated under the Constitution during transition to statehood.
- The U.S. statement to IACHR is consistent with federal law holding that statutory U.S. nationality and citizenship based on birth or naturalization in a territory is conferred by Congress under the Territorial Clause, and not under the national and state citizenship clause in Section 1 of the 14th Amendment to the U.S. Constitution.
While presenting affirmative declarations, the U.S. statement also exposes areas of ambiguity, confusion and misunderstanding, along with stubborn fallacies that have become part of the narrative related to Puerto Rico’s political status resolution process. It should surprise no one that frustration between federal and local governments, after decades of unwarranted delay in defining and choosing a future status for the territory, leads to divisive debate even as productive dialogue continues. The focus on controversial content in the letter is due in part to the legalistic nature of topics addressed, as well as some subsidiary issues of historical and factual inaccuracy.
A letter from the Governor of Puerto Rico to the President of the United States dated September 19, 2018, correctly notes only statehood can secure unencumbered federal voting rights for U.S. citizens in the territory. For territorial officials, the inability to address the fiscal collapse of the “commonwealth” regime of territorial government and the harm caused by Hurricane Maria in a federal forum adds to the frustration over denial of full voting rights.
It is particularly troubling that the U.S. declarations to IACHR failed to mention the results of the historic 2012 political status vote in Puerto Rico. That 2012 vote was an historic first constituting an informed and definitive democratic act of self-determination on political status. That had never happened in the 500-year colonial history of Puerto Rico under Spain and the United States.
In the 2012 plebiscite, voter turnout was a staggering 78%. A majority of 54% voted to end the current territorial status in an up or down vote. On a second ballot question, 61% voted for statehood over sovereign nationhood or free association based on independence as defined by the U.S. and United Nations. The number of votes for statehood on the second ballot question in 2012 was greater than the number of votes in favor of the current status on the first ballot question. Obviously, the U.S. representative’s statement that the 2017 vote was “the first time” the people of Puerto Rico petitioned for statehood based on democratic majority rule materially misinforms the IACHR and the public.
Similarly, the U.S. statement makes a cavalier admonition that U.S. citizens denied federal voting rights are unencumbered and unharmed, because they can relocate to the states to enjoy the full blessings of American nationality. The idea that Americans in the territories must choose between abandoning their heritage and homeland or the equality that comes only with statehood is the anti-democratic legacy of imperialist jurisprudence in the infamous 1922 federal court ruling Balzac v. Puerto Rico.
That rogue high court ruling ended the anti-colonial federal territorial law traditions of the Northwest Ordinance as a founding document of the Republic. Earlier federal court rulings in the so-called “Insular Cases,” referred to in the letter from Puerto Rico’s Governor to the U.S. President dated September 19, 2018, originally applied only temporarily to new territories with non-citizen populations. Unincorporated territory status under the leading “Insular Cases” ruling of 1901 in Downes v. Bidwell was intended to be transitional and last only until Congress adopted a policy denying citizenship and leading to independence (e.g. the Philippines), or granting citizenship with incorporation under the U.S. Constitution leading to statehood (e.g. Hawaii and Alaska).
The anti-democratic idea that a subclass of U.S. citizenship under “commonwealth” could persist in perpetuity because citizens in Puerto Rico objecting to disenfranchisement can move to a state was a pillar of the failed experiment in autonomy without accountability known as “commonwealth.” That model for indefinite local but not national democracy under “commonwealth,” based on a revocable delegation of sovereign powers, denies inherent sovereignty and government by consent to the exercise of federal supremacy, as confirmed by recent U.S. Supreme Court rulings including the 2016 Sanchez Valle case.
The discredited ideology of “commonwealth” was a false promise that a less than equal form of government with local self-government only somehow could substitute for equal rights of national citizenship that come only with state citizenship. That caused a 70-year deferral of full democratization in Puerto Rico that explains the impetus for petitions before the IACHR alleging U.S. dereliction of its commitments to democracy, including U.S. reliance on forced relocation of citizens seeking equal rights that cannot be reconciled with Article VIII and XX of the American Declaration and other multilateral human rights conventions to which U.S. is a party.
Accordingly, the IACHR should welcome assurances by the U.S. Mission to OAS as to progress defining political status options for Puerto Rico based on statehood or independence as paths to equal rights of national citizenship. Those are the only choices for ending perpetual territorial status without constitutionally conferred national and state citizenship and equal federal voting rights that come only with statehood under the American system of constitutional federalism.
Given the failure of the seven-decade “commonwealth” experiment that left Puerto Rico with an economic as well as democratic deficit in relations with the rest of the United States, we urge the IACHR to adopt any and all measures within its jurisdiction and responsibilities to address issues raised in petitions of our fellow citizens before your body, and as may be deemed effective to expedite culmination of the political process for determining the future status of Puerto Rico based on majority rule in the territory favoring statehood.
Jose Fuentes Agostini is former Secretary of Justice and Attorney General of Puerto Rico. He is President of the Puerto Rico Statehood Council. This post is based on a letter to Dr. Paulo Abrao, Executive Secretary of the Inter-American Commission of Human Rights of the Organization of American States.