Some critics of the proposed Puerto Rico Status Act continue to demand clarification of the definition of statehood. This may seem odd, since we have 50 states to look at as examples. We can also look to the U.S. Constitution, the primary law of the land, to explain what a state is and how it functions.
Article IV of the US Constitution has most of the information describing states. Here are the clauses which clarify what a state is and does:
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
That is, citizens of each state have the same rights as citizens of every other state. This is not true for Puerto Rico or other territories. Residents of Puerto Rico are not eligible for SSI benefits, for example. They cannot vote in presidential elections. Their citizenship can be revoked by Congress.
None of these examples of inequality would be possible in a state of Puerto Rico.
“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”
The is the New States Clause. It tells how new states can be admitted — by Congress. It also makes it clear that states have control over their boundaries. There has been talk about dividing California into multiple states or moving part of Oregon into Idaho, but that cannot be done, by Congress or by the residents, without the agreement of the state’s government.
This section is also the basis of the Equal Footing Doctrine which holds that new states are always equal to the existing states.
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
This is known as the Guarantee Clause. It provides that the federal government will support each state in its self defense. It also guarantees a government similar to the government of the United States. It would not be possible for the state of Puerto Rico to elect a governor who then declared martial law and made himself dictator for life. This could happen in an independent nation of Puerto Rico.
“At its core, the Guarantee Clause provides for majority rule,” says the Constitution Center. “A republican government is one in which the people govern through elections.”
The 10th amendment
The 10th amendment of the Constitution says that anything not already mentioned in the U.S. Constitution is up to the state and its people: the state and local governments.
For example, Nebraska is the only state which has state senators but not state Members of the House. It has a single bicameral legislative body. All the others have both a House (sometimes called an Assembly) and a Senate, like the United States federal government. States get to make this decision.
States also decide their tax laws, business regulations, official languages, education policies (as long as they are equal for all students) and rules about health and welfare.
States may not declare wars, make treaties with countries, make their own currency, or establish a separate postal system.
The 14th amendment
The 14th amendment says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Supreme Court has made several decisions that make it clear that the 14th amendment does not apply to the unincorporated territories such as Puerto Rico. It is therefore possible for American Samoa to have rules about ownership of land which apply to people of some heritage and not to others. If they were covered by the 14th amendment, they could not do so because it would violate the rule of equal protection.
The citizenship of people born in Puerto Rico is not guaranteed by the 14th amendment, and therefore is statutory rather than constitutional. This is because the 14th amendment only applies to states, not to territories.
The U.S. Constitution makes clear what a state is and how a territory’s status changes when it becomes a state.