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The San Juan Star

The Emperor Is Wearing 51 Stars

By Cristina Burnett

September 7, 2001
Copyright © 2001 The San Juan Star. All Rights Reserved.

The real Jose Trias Monge stood up. Challenged to clarify his position after warning on the issue of whether commonwealth status is colonial, the former chief justice has responded by defending the idea that Puerto Rico -and the United States entered into a mutually binding bilateral compact in 1952. He invites anyone to come up with a legal or moral argument against the "compact theory."

Both exist, as he knows perfectly well. But rather than waste space reviewing these familiar arguments yet again, let's go to the heart of the matter.

First: Justice Trias is tackling a straw man. Of course one Congress can bind another to a political union. That union is called statehood. To put it accurately, if one Congress, pursuant to its authority under the Admission Clause of the federal Constitution (Art. IV, § 3, clause 1), takes the necessary steps toward admit- ting a state, the Constitution itself will bind future Congresses to the federal government's union with the new state.

It binds them because, as explained by the U.S. Supreme Court in Texas v. White (1869), the founding document creates an "indestructible Union of indestructible states." In addition, it binds Congress explicitly with the command that no state shall be deprived of its equal suffrage in the Senate without its consent (Article V).

So here's a question: If the Constitution provides statehood as a recognized form of mutually binding bilateral com- pact with the federal government, why do supporters of the so-called compact theory insist that Puerto Rico should have (and indeed has) such a compact, yet object so strenuously to the idea that such a compact should take the form of statehood?

Recall the "five principles" that Gov. Calderon cited during her campaign, as the fundamental underlying features of the status the PDP supports: (1) a reaffirmation of Puerto Rico's sovereignty; (2) a delegation of powers to the federal government and reservation of powers by Puerto Rico; (3) permanent union between Puerto Rico and the United States, with common (read: U.S.) citizenship, defense, currency, and markets; (4) participation for Puerto Rico in national political processes affecting the island; and (5) a recognition of Puerto Rico's nationhood.

Be careful what you wish for; it could turn out to be statehood. Let's start with the first four principles: States are sovereign entities. They delegate powers to the federal government, and reserve all remaining powers to themselves or to the people. They have entered into permanent union with the United States, and they share common (read: U.S.) citizenship, defense, currency, and markets. And the people of the states, of course, participate in national processes affecting their interests, in the fairest and most effective way anyone has ever come up with - full voting power in federal elections.

To be sure, the PDP envisions the details of the arrangement somewhat differently. Most notably, they would continue Puerto Rico's exemption from federal taxes, and they would trade federal voting rights for a nebulously defined power of "selective consent" over federal laws. But we're speaking of principles here; statehood amply fulfills the PDP's first four goals.

Then there's the fifth item: recognition of Puerto Rico's nationhood. This, of course, looks completely inconsistent with statehood, at least at first glance. But what does it actually mean? Gov. Calderon, needless to say, does not have in mind sovereign independent nationhood. Neither does any defender of the mutually binding bilateral compact. What, then, is an assertion of nationhood about, if not a concomitant claim to national independence? In this case, it implies two things: (1) the right to assert that Puerto Rico is a nation, according to all internationally recognized criteria except that of actual independence; and (2) the prerogative to enjoy some aspects of an international personality -for instance, to enter into treaties, control immigration, and participate in international organizations -but always consistent with U.S. national security interests, as the PDP itself acknowledges in its proposals for the enhancement of commonwealth status, and as common sense dictates.

Once one recognizes that Puerto Rico's international personality under the proposed compact would be subject to a U.S. national security interest veto, precious little "nationhood" remains other than the right to assert it. It would appear, then, that over 95 percent of Puerto Rico's population has locked horns over whether to be a state or whether to be a state and refuse to admit it.

It seems a high price to pay for the loss of voting rights.


Christina D. Burnett is co-editor of "Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution" (Duke University Press 2001).

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