“The face of dame justice will be remembered in our case more for the blindfold than for the balance act of the scales in her hands.” - Robert P .Aponte Toro, Dean of the School of Law, University of Puerto Rico
For the last century, the dominant—and unanswered—question of Puerto Rico’s identity has been its political status. In a recognition of the gravity of this question, two dominant parties emerged on the island that each represented different legal directions for the territory, rather than certain policy goals. The Popular Democratic Party (PPD) is pro-commonwealth status, and the New Progressive Party (PNP) is in favor of full statehood. The Puerto Rican Independence Party, while representing a legally viable path for Puerto Rico, lost the vast majority of the political power it once had; it is therefore functionally defunct in the political environment as an outcome, and will not be covered in this article. While the PPD maintains that its choice preserves Puerto Rico’s autonomy, the PNP’s path of statehood is the only option that constitutionally ends the current colonial relationship between Puerto Rico and Congress. Due to the limitations the Constitution sets on Congress, the commonwealth approach proposed by the PPD is legally untenable.
Before the commonwealth option can be analyzed, it is important to understand what commonwealth means. For all official purposes, Puerto Rico is known as a commonwealth. This status arose in the 1950s from the founder of the PPD and first elected governor, Luis Munoz Marin. He fought to establish Puerto Rico as a commonwealth, a position his party still supports. Commonwealth status was meant to confer Puerto Rico a high degree of autonomy with respect to the US and end their colonial relationship. However, the term commonwealth has never had the legal weight that Marin had desired. According to the US State Department’s official manual, “The term ‘Commonwealth’ does not describe or provide for any specific political status or relationship.” This fact becomes clearer when the relationship between, for example, the Commonwealth of Massachusetts and the Commonwealth of Puerto Rico reveals little information regarding their respective rights. While the PPD and other proponents allege that commonwealth status can afford a particular arrangement of autonomy, the framework that governs Puerto Rico refuses to enable such an option, leaving only statehood as viable.
To further examine the validity of the proposed options, the historical legal doctrine must be understood. Following the annexation of Puerto Rico, the Supreme Court embarked on answering Puerto Rico’s question of status. In the landmark decision Downes v. Bidwell, Justice Edward White established the doctrine of incorporation in his majority opinion, stating that unless Puerto Rico is incorporated by Congress, legislators are free to use their plenary powers from Article IV of the Constitution to unilaterally govern the island. Absent from this majority opinion is whether commonwealth status implies incorporation. Since Downes, different justices have completely contradicted one another as to whether Puerto Rico’s commonwealth status means it is incorporated. This inconsistency has left the question of Puerto Rico’s political status and its sovereignty over its local government wholly unanswered.
This judicial neglect to give a concrete opinion does little to empower the Puerto Rican people. A common misconception is that a clear majority of Puerto Ricans in a plebiscite is all that is needed to solve this crisis. This condition has already been met, as multiple referenda have yielded undeniable preference for alternatively both the statehood and the commonwealth option. However, Congress can and has deliberately ignored these votes. Considering the controversy revolves around congressional unilateral power over Puerto Rico, Congress itself must take an active role in this situation. After all, a colonial relationship cannot be truly dismantled without a conscious abdication of power by the ruler.
However, even if Congress acknowledged a plebiscite of the Puerto Ricans, it could not dutifully accept a preference for the commonwealth option. The Constitution can guarantee full, unconditional, and irrevocable citizenship only to entities mandated by the Constitution, like D.C. or the states. A lack of commonwealth status language in the Constitution means such a guarantee would be “necessarily and unavoidably modifiable at the will of Congress and that commonwealth status therefore cannot become a permanent solution.” There is currently no legal mechanism that genuinely gives Congress the authority to enter an irrevocable compact for commonwealth; unless Congress is bound by an amendment or article of the constitution, “its legislative powers cannot be compromised by prior legislation.” Rep. Patrick Kennedy was referring to the illicit nature of the commonwealth option when he testified before Congress that any referendum must have its options approved by Congress to be considered bound to the results. Because Congress would be able to renege on any commonwealth arrangement made with Puerto Rico means that Congress is also necessarily empowered to abridge the rights of the people that live there. Couple this lack of constitutional protection with Downes’ implications, and it becomes unmistakably clear that a commonwealth option cannot secure all rights and liberties for the Puerto Rican people.
When considering self-determination chiefly in a global sense, Puerto Ricans are fully entitled to determine their future, including the status of commonwealth. Multiple other colonial powers, including Spain and the United Kingdom, had devolved their control over their respective colonies within irrevocable law. However, these foreign laws carry no weight in the American courts’ application of the Constitution. Therefore, they are functionally irrelevant in analyzing the choices Puerto Rico faces. This peculiarity of the Constitution means choosing the commonwealth equates to “self-[determining] itself out of the right to self-determination”, a legal paradox that must be avoided at all costs. This necessary condition for equal protection under the law is purely a feature of American jurisprudence, and an unavoidable constraint on the available choices of Puerto Ricans.
An important qualifier to note is that the Constitution is a dynamic document that consistently needs to be demystified and reinterpreted. While Congress must act according to its powers, as its disregard for explicit “constitutional protections…when they become inconvenient” is the very reason why this entire problem exists in the first place, there are multiple paths to resolution. Suits like U.S. v. Vaello-Madero are currently being heard before the Supreme Court, and hopefully will make this article moot with a bold opinion. If it is truly within the desire of the Puerto Rican people to do so, a Constitutional amendment can readily supersede all these claims. Notwithstanding that this newly created constitutional entity would be uncharted waters, it is important to not fall victim to “law [that] doesn’t move concurrently with circumstance”, for it is well within “the spirit and genius as well as with the words of the constitution” to determine our future.