When constitutional scholar Walter Dellinger died last week at the age of 80, his notable career was recognized throughout the country. Yet one valuable contribution by the preeminent legal expert largely escaped notice: Mr. Dellinger’s expertise on Puerto Rico’s political status.
In a public statement, United States Attorney General Merrick B. Garland praised Dellinger’s contributions to the legal profession: “The passing of Walter Dellinger is an enormous loss for those of us at the Justice Department who worked alongside and learned from him, for his family who cherished him, and for our nation, which was made better because of him.”
“Walter approached the law not as a career, but as a calling,” Garland added. “He believed it was his privilege to be able to use the law to make our democracy work better for everyone. He was a tireless advocate on behalf of those with whom he worked, and on behalf of the American people for whom he worked. He did not hesitate to lend his voice in service of lifting up the voices of others. His work had an enormous impact on all of us at the Justice Department, and on the lives of millions of people he would never know.”
Pursuing “Real” Constitutional Options for Puerto Rican Voters
Most recently, Dellinger was among the 47 constitutional scholars who wrote to Congress in April of 2021 in support of the Puerto Rico Statehood Admissions Act (HR 1522), which is currently pending before Congress.
“Dear Speaker Pelosi, Majority Leader Schumer, and Leaders McCarthy and McConnell:
We, the undersigned legal and constitutional scholars, write to express our strong opposition to the Puerto Rico Self-Determination Act, H.R. 2070, and its Senate companion bill, S. 865, and to register our equally strong support for the Puerto Rico Statehood Admission Act, H.R. 1522, and its Senate
companion bill, S. 780,” the letter began.
“Like all Americans, we support self-determination. But unlike the supporters of the Puerto Rico Self-Determination Act, we believe that genuine self-determination requires the United States to offer Puerto Ricans a real choice. By “real,” we mean constitutional and non-territorial. Puerto Rico’s self-determination options must be constitutional, for the obvious reason that neither Congress nor Puerto Rico has the power to implement an unconstitutional option. And they must be non-territorial, because a territorial option is not self-determination.
“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. There are no other non-territorial options. For many decades, advocates of “commonwealth” status argued that it was non-territorial. They argued that when Puerto Rico made the transition to commonwealth status in 1952, it ceased to be a U.S. territory, became a separate sovereign, and entered into a mutually binding compact with the United States. But they were wrong. Quite simply, Congress does not have the power to create a permanent union between Puerto Rico and the United States except by admitting Puerto Rico into statehood.”
Calling Out Unconstitutional Options as “Misleading,” “Illusory,” and “Unenforceable”
Earlier in his career, Dellinger testified as an expert at the House Committee on Natural Resources hearing on the Puerto Rico-United States Bilateral Pact of Non-territorial Permanent Union and Guaranteed Citizenship Act (H.R. 4751) – a mock bill introduced with no chance of passage to make the point that unconstitutional options for Puerto Rico’s status were not real choices.
At the Congressional hearing on October 4, 2000, he explained:
“[O]ver the 30 years I have been a professor and scholar of constitutional law, I have encountered a number of very difficult and uncertain questions of constitutional law, but this [proposal] is not one of them. The propositions put forth by this [proposal], in my view, are so clearly unconstitutional that I do have concerns that the propositions put forward here would be misleading to the citizens and the people of Puerto Rico and anyone else who was concerned about this difficult issue.
[T]he issue is so clear and simple that the provisions put forward in the Popular Democratic Party provision are simply fundamentally incompatible with the constitution of the United States that there is really not a lot of elaboration, I think, that is necessary to establish that proposition.”
Professor Dellinger was explicit in testimony with the proposal’s defects:
“Congress cannot promise the people of the United States and Puerto Rico that these policies and this structure will be permanent and irrevocable. [Legislative] guarantees of permanent union, a system that may not be unilaterally revoked, and its irrevocable grant of U.S. citizenship to all persons born in Puerto Rico are illusory and unenforceable.”