What Did Puerto Ricans Really Get with “The Commonwealth” (“ELA”) in 1952?

July 25th is a holiday in Puerto Rico that officially celebrates the territory’s insular constitution, which became effective on the date in 1952.

The holiday is Constitution Day but is often celebrated as ‘Commonwealth’ Day.

What are Puerto Ricans really celebrating (or lamenting) today?  What do the constitution and July 25th really signify related to the islands’ self-government?

The U.S. Government by law authorized the local drafting of an insular constitution.  It was to replace provisions of Federal law organizing the territorial government.

In authorizing the drafting, the Federal Executive branch and the congressional committees of jurisdiction took pains to explain that the constitution would not change Puerto Rico’s fundamental political status.  The islands would remain an unincorporated territory of the U.S., subject to the broad powers of Congress to govern territories under the U.S. Constitution’s Territory Clause.

And Puerto Rico’s governor and representative to the Federal government, leaders of what is now the territory’s ‘commonwealth’ party, agreed.

The constitution took effect after changes insisted upon by the Federal government were made.

The constitution named the insular government the “Estado Libre Asociado de Puerto Rico” in Spanish, words that literally translate as the “Associated Free State of Puerto Rico.”

But the constitutional convention recognized that the U.S. Government was very unlikely to approve a constitution that strongly suggested Puerto Rico was associated with the U.S. as opposed to a possession of the U.S.  Nor would Congress approve at the time Puerto Rico as a state in either the U.S. or the international (a nation) sense of the word.  So, it named the insular government the “Commonwealth of Puerto Rico” in English.

Commonwealth” does not signify a particular political status.  The U.S. has four States that call themselves the “Commonwealth” and another territory that uses the word in its name (the Northern Mariana Islands).

After the constitution was approved, the ‘commonwealth’ party began to assert that Congress had given up its territory governing powers over Puerto Rico.

Constitution Day began to be celebrated as marking a significantly new status.

All three branches of the Federal government, however, have repeatedly determined that the islands remain an unincorporated territory.  President Obama’s Task Force reported in 2011 that Puerto Rico would remain subject to Territory Clause authority under any “Commonwealth.”

Puerto Rico did not get a real status change with the establishment of “the Commonwealth” or win permission to exercise much more governing power than it previously had.  But it was permitted to exercise one power that it did not have before: It could amend the charter of its insular government.

Puerto Ricans can rightfully celebrate that today.

The Real July 25th Status Change

The greater significance of July 25th to Puerto Rico’s status, relates to the fact that the U.S. invaded the Spanish islands on this date in 1898.  The invasion led to Puerto Rico becoming an unincorporated territory of the U.S. instead of a Spanish possession.

The invasion was welcomed by many Puerto Ricans but is viewed negatively by the small percentage of Puerto Ricans who want independence for the territory. (4.49% in the 2012 plebiscite on status options  and 1.5% in the most recent, 2017 referendum.)

And ‘commonwealthers’ note that in some areas — although not others — Puerto Rico exercised greater autonomy under Spain than it does now. For example, it could enter into international trade agreements.

Trade authority is a goal of the ‘commonwealth’ party for a new “commonwealth status” that the Obama, George W. Bush, and Clinton Administrations have said is impossible for constitutional and other reasons.

Under the Constitution, only the Federal government can enter into trade agreements with other countries.

And if Puerto Rico somehow were to get trade agreement authority, it would conflict with the “commonwealth status” proposal for a continuation of the lack of any trade barriers between Puerto Rico and the States. The combination of trade authority and totally free trade with the States would put a huge hole in U.S. trade law: Goods from foreign countries that could not otherwise enter the U.S. or not enter without paying customs duties, would be able to enter freely through Puerto Rico.

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