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PUERTO RICO HERALD
Puerto Rico Needs Stability Of A Permanent Status
By Herbert W. Brown III*
January 14, 2003
(Editor's note: An edited version of this response to Hoyts commentary was published in Caribbean Business. This is the full-length response to the Hoyt piece.)
A December 5, 2002 column by Garry Hoyt In The "Caribbean Business" magazine advocated Independence For Puerto Rico. While that commentary was refreshingly candid, such a serious issue demands a more serious discussion.
First, it is true that the U.S. Congress has the constitutional power to determine unilaterally that Puerto Ricos post-territorial status will be independence as it did for the Commonwealth of the Philippines. Congress can prescribe terms for recognition of the constitutional government in the territory as the national government of an independent republic. By making independence a national policy and directing federal funding and activities into the transition to nationhood, as well as providing a mechanism for local government acceptance of terms for separate sovereignty, Congress can give Puerto Rico or any territory an offer that, in effect, can not be refused.
As a matter of domestic and international law, independence is fully consistent with the principle of self-determination, and Puerto Rico has no vested legal right to continue the current territorial status, which is defined only by federal statutes. Only statehood or independence is constitutionally defined and legally permanent political status options. Thus, Congress is not constrained from unilaterally terminating territorial status in favor of independence. A local constitutional process for ratification of the terms for transition to independence would be sufficient under international standards for decolonization of an unincorporated territory.
However, in the absence of a transforming national experience making Puerto Ricos continued dependency on the U.S. politically unsustainable, it seems clear that not only Hispanic-Americans of all origins, but the American people generally, would not be inclined to support a unilateral federal initiative to make Puerto Rico a separate nation. To satisfy minimum standards of political equity, an act of self-determination would be required in which the residents also could choose a status alternative that includes current statutory U.S. citizenship rights for Puerto Rico (i.e. continued territorial status), or full constitutionally conferred citizenship with equal rights and duties of all Americans (i.e. statehood). Only if Congress is prepared to mandate independence and end U.S. citizenship in the future without any other choice can the status resolution process be limited to the separate nationhood option.
Those with a simplistic understanding of the independence option need to realize that any independence scenario would require Congress to end by a date certain the current federal territorial policy of conferring U.S. citizenship on persons born in Puerto Rico. Whether independence comes with or without a treaty of free association, in order for Puerto Ricos succession to separate sovereignty, nationality and citizenship to be legally recognized, U.S. sovereignty, nationality and citizenship must be phased out.
Statutory U.S. citizenship for the entire population of a foreign country would be incompatible with more than two centuries of U.S. nationality law, and guaranteed future U.S. citizenship for Puerto Rico as a separate nation would require a constitutional amendment. While Congress tolerates individual cases of dual citizenship resulting from foreign law, creating a subclass of U.S. citizenship for millions of people in a foreign country by operation of U.S. law is politically and legally infeasible. Thus, just as U.S. nationality ended when the Commonwealth of the Philippines became a nation, just as the Pacific Island nations that entered into free association compacts with the U.S. in the 1980s lost the option of U.S. citizenship when they voted to reject territorial status, and just as Spanish nationality and federally defined territorial citizenship in Puerto Rico were phased out by an election of allegiance when U.S. citizenship was granted in 1917, future conferral of U.S. citizenship in Puerto Rico will end if Puerto Rico becomes an independent nation or an associated republic.
That may well be the primary reason why the independence movement in Puerto Rico is a much smaller as a percentage of the population (2.7% in the last vote) than the historical independence movements in Texas, Hawaii, Alaska or Vermont. That, however, is clearly why the local pro-commonwealth party in Puerto Rico makes the false claim that Puerto Rico can retain U.S. citizenship and political union with America, and at the same time "enhance" commonwealth so that it includes a dual Puerto Rican citizenship and sovereign nationhood.
Oblivious to the contorted logic of the "enhanced commonwealth" debate in Puerto Rico, most Americans will support ending U.S. citizenship for people born in Puerto Rico in the future only if residents of the island freely choose separate nationhood, or refuse to honor their duties of citizenship. Many people may share a smoldering anger over anti-federal, anti-military and arguably anti-American provocations by some of Puerto Ricos local political factions and officials. However, College Park, Maryland can not be cast out for declaring itself a nuclear free zone during the Cold War, and the post 9-11 flag display boycotts in certain cities along San Francisco Bays eastern shore come as no surprise anymore. Without approving of their hypocrisy, why should we be any less tolerant of some students in Puerto Rico -- attending school on federal grants and roaming the campus like vigilantes to censor display of the American flag will not justify imposition of independence for Puerto Rico.
Indeed, given the legacy of valor by thousands upon thousands of Puerto Ricans in the U.S. military, veterans in Puerto Rico may feel the only thing more provocative than anti-American antics of a relatively few extremists is for us to pay more attention to them rather than the larger community that includes our patriots who served in battle. Remember that Puerto Ricans were drafted and have volunteered for military service at higher levels than in the mainland, despite being denied the presidential vote or representation in Congress. This certainly intensifies emotions locally, but protests to end navy training at Vieques and the transfer of army operations from the territory must be viewed as comparable to grassroots protests about military training facilities and U.S. foreign policy across America.
Instead of proposing to impose separate nationhood on Puerto Rico out of frustration, we need to support an orderly status resolution policy for Puerto Rico. That would include federal policy defining the terms for statehood or independence as the two permanent status options. Washington should also accurately define the current status as territorial and transitional, instead of being silent as local demagogues propagandize the status issue by pretending Puerto Rico can conduct its own foreign policy. The actual rights and duties of equal citizenship in a state of the union or an independent nation should not be bartered away for false promises of "special rights" that supposedly make colonial status more tolerable, but which exist, if at all, only at the pleasure of Congress, and can never be secured legally without amending the constitution itself. Similarly, Congress should not expect real prosperity from federal tax exemptions. Used in San Juan to justify excessive local taxes, and in Washington to justify denial of equal rights, federal tax gimmicks are no remedy for uncertainty over status that stifles long-term investment and sustainable development.
No matter how many years one may spend living in the territory, it is often difficult for many mainland-born fellow citizens to understand the appeal of the "Puerto Ricans first" mentality. That is because they do not have to rationalize to themselves and their families the conditions of second-class citizenship each day while going about the business of being Americans. After a century of colonialist ambivalence in Congress about whether we deserve a shot at full citizenship through either statehood or independence, those born and raised here who find their greatest pride in surviving and succeeding as Puerto Ricans, living in limbo under federal territorial policy, should not be the only targets of Mr. Hoyts ire. We also need to take to task federal leaders who for a century have abdicated their constitutional responsibility to make status resolution for Puerto Rico possible based on American principles of democracy and equality.
Contrary to Mr. Hoyts assertions, the history of locally sponsored status votes does not support the view that the residents have rejected statehood. Rather, the clear message of the voters is that about half favor full rights and responsibilities of U.S. citizenship under statehood, and about half will never make a choice between statehood and independence as long as Congress continues to subsidize the status quo. No other territory in U.S. history has been granted U.S. citizenship, exemption from some but not all federal taxes, local self-government only, and left for a century with no status resolution process.
Holding out Hawaii and Alaska as examples of territories that rallied to statehood is simplistic. Every territory that became a state experienced dramatic, sustained economic growth leading to integration with the national economy, but some territories struggled not unlike Puerto Rico to recognize the advantages of statehood over territorial status. The pro-statehood vote in Wisconsin was 25% in 1842, 30% in 1843 and 22% in 1844. Once Congress clearly defined the terms for admission, 60% voted for statehood. The state of Washington achieved a majority for admission only after statehood votes of 47% in 1869 and 30% in 1871.
In Puerto Rico the vote for statehood was 38.9% in 1967, 46.4% in 1993 and 46.5% in 1998. That was with muddled, baffling, misleading ballots devised by local political parties. The question should be: what would be the results if a federally sponsored vote took place with options approved by Congress? Only when there is informed and legitimate self-determination can the true political will of our fellow citizens in the territory be expressed.
*Herbert W. Brown Iii Is An Attorney In San Juan, President Of The Citizens Educational Foundation-Us, A Non-Profit, Non-Partisan Organization Dedicated To The Decolonization Of Puerto Rico Based In Washington, D.C. You May Access The Web Site At www.cefus.net.