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PUERTO RICO HERALD
Exactly What Is Free About Free Association?
By Dick Thornburgh
The word "annexation" comes from the Latin "annectere", meaning "to attach." The modern translation "to subjoin" means to join together but not fully, as in annexation of territory without full political integration. That is what happened to Puerto Rico in 1899 when Spain ceded sovereignty to the United States. 103 years later, Puerto Rico remains an annexed territory subject to the power of Congress over territories.
It is ironic that Puerto Rico adopted "Estado Libre Asociado" ("ELA") as the Spanish translation for its "commonwealth" structure of local government. ELA translates back into English as "Free Associated State". Yet, Puerto Rico is not freely associated and it is not a state. Puerto Rico never freely chose, nor is it free to change, its current status. Adoption of a local constitution in a 1952 referendum, without statehood or nationhood on the ballot, continued territorial status. The resulting "commonwealth" is not free association as recognized by the U.S. or the United Nations.
The local government is "state-like" only in the exercise of local powers as allowed by Congress. The local constitution reserves sovereignty to the people only as to actions of the local government. Residual sovereignty and supreme power in all matters is reserved to Congress, including the power to alter federal and local law. This restricts Puerto Rico's further development, which is why status resolution is long overdue.
Yet, some who advocate "free association" confuse the choice between statehood or nationhood by claiming U.S. citizenship could be guaranteed among the "civil liberties" in an associated republic. This misleading argument fails to distinguish current citizenship from future citizenship.
Current U.S. citizenship in Puerto Rico is conferred by Congress under its power over territories and naturalization. This is a statutory policy, rather than a constitutional right as it is for those born or naturalized in a state under the 14th Amendment. Even though Congress could stop conferring citizenship in Puerto Rico, as long as current law continues, I will remain a champion of the greatest possible equality for citizens in the territory, a stand I have consistently taken as a former U.S. Attorney General.
However, informed self-determination is a civil liberty I also champion, and it is impeded by claims that Congress can give Puerto Rico a greater right to future citizenship as an associated republic than it has as an annexed territory. The notion that Puerto Rico can secure a right to U.S. citizenship by clever negotiating recklessly assumes the U.S. can extend an enforceable future right to U.S. citizenship in a foreign nation. On the contrary, Congress does not have the power to dispose of sovereignty over U.S. nationality. Even if one Congress extended the same treatment to Puerto Rico as citizens in the States receive under the 14th Amendment, that would be a statutory policy that a later Congress could reverse. Thus, future U.S. citizenship cannot be guaranteed in an annexed territory or an associated republic.
Similarly, while it may serve the interests of some foreign nations to grant citizenship to U.S. nationals, a future right under federal law to U.S. citizenship for a foreign nation is not politically plausible or constitutionally permitted. Any status process will lack legitimacy if it misleads voters to believe Congress can by statute, treaty, compact or promise convert statutory policy on citizenship, or any other political question, into a permanent constitutional right.
More fundamentally, the ELA formula for an enhanced commonwealth or associated republic is not really free association at all. To be non-colonial, free association must be unilaterally terminable at will by either party in favor of full independence. The right freely to enter or to end the association is what is "free" about free association. It is a status sustained by mutual agreement as long as it serves mutual interests. If alterable only by "mutual consent", one party could deny the other's sovereign right to independence through termination of the association.
Obviously, this flawed ELA formula is even more colonial than territorial commonwealth, because Puerto Rico would be agreeing that the federal government could withhold indefinitely its consent to either independence or further integration with the nation. By its own choice Puerto Rico would remain a free associated state in name only, but with even less opportunity for real self-determination.
Puerto Rico should not pass up the chance to secure equal citizenship rights and real sovereignty through statehood or separate nationhood, only to pursue the false promise of a "permanent" free association with a "right" to U.S. citizenship. That deceptive dualistic theory of nationality continues to impede self-determination and status resolution for Puerto Rico.
Dick Thornburgh was Attorney General of the United States under Presidents Reagan and Bush, and was a two-term Governor of Pennsylvania