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The Road To Commonwealth (Part II)
Territorial trials and political tribulations of a 21st-century colony
By CARLOS MARQUEZ
August 12, 2004
For more than a century, Puerto Ricos relationship with the U.S. has been paved with countless legislative bills and laws. While many bills regarding the island were presented in an honest attempt to deal with the colonial status, others were simply intended to do away with the Puerto Rico problem or to reduce the pressures from local politicians demanding the issue be resolved.
In the past, attempts to address Puerto Ricos colonial status were met with opposition from within Puerto Rico or with inaction from the U.S. Congress. Disagreements over the islands political status led to years of debates between Puerto Ricos political leadership and Congress, until 1950, when President Harry S. Truman signed Public Law 600 authorizing the island to draft its own constitution. Yet, 52 years after the Constitution of the Commonwealth of Puerto Rico was enacted, the islands status remains unresolved.
Legislative road to Commonwealth
As early as 1922, Rep. Philip P. Campbell from Kansas presented H.R. 9995, a legislative bill to provide for an autonomous government by creating the Associated Free State of Porto Rico without impairing the exercise of sovereignty by the people of the U.S. In 1936, Sen. Millard E. Tydings from Maryland, chairman of the Territories & Insular Possessions Committee, presented S. 4549 calling for a yes or no referendum with independence as the only option. Should the islands voters opt for independence, the Commonwealth of Puerto Rico would be established for a transitory period of four years, followed by independence.
Commonwealth was also the title given to the U.S. possession of the Philippines during its transition toward independence. The Tydings-McDuffie Act of 1934 established the Commonwealth of the Philippines which, at the end of a 10-year transition period, would become the independent Republic of the Philippines.
The Tydings Bill wasnt perceived as a good-faith effort to address Puerto Ricos status problem, and the bills punitive clauses were obvious. Once the island gained independence, it would lose all federal assistance and loans and its free access to the U.S. market; tariffs would be imposed on products entering the U.S. from the island; and Puerto Ricans would become citizens of Puerto Rico, losing their ability to enter the U.S. mainland whenever they wanted. A quota system also would be established allowing only 500 Puerto Rican citizens to enter the U.S. each year.
The Tydings Bill was seen as retaliation for the Feb. 23, 1936 assassination of Police Chief Francis Riggs by two Puerto Rican nationalists. Riggs had been a personal friend of Sen. Tydings.
In February 1937, Rep. Wilburn Cartwright from Oklahoma presented H.R. 4885, which also called for Puerto Ricos independence and had the support of Luis Muñoz Marin. While the Cartwright Bill didnt contain the punitive measures found in the Tydings Bill, the 74th Congress didnt take any action on either measure.
Sen. Tydings didnt give up, however, and in 1943, presented another independence bill, S. 952. He also submitted a proposal that incorporated recommendations from a commission appointed by President Franklin Delano Roosevelt to evaluate the possibility of an elected governor for Puerto Rico. The bill, S. 1407, was approved in the Senate but never made it through the House of Representatives.
In January 1945, Sen. Tydings presented yet another bill, S. 227, calling for Puerto Ricos independence. This measure received support from the majority of Puerto Ricos legislators and mayors who belonged to the Popular Democratic Party (PDP), which had been established in 1938.
During public hearings for S. 227, a status commission created by the Puerto Rico Legislature and presided over by Muñoz Marin called upon Congress to terminate the colonial form of government in Puerto Rico, as it was contrary to both the democratic rights of Puerto Ricans and the democratic traditions of the U.S. In his written testimony, Muñoz Marin requested that certain minimum economic conditions be met and, in exchange, recognized that if the legitimate interests of the U.S. were to be fully protected, military establishments and rights must be permanently established by the U.S. in Puerto Rico.
A substitute status bill, H.R. 3237, was also presented in 1945 by Jesus T. Piñero, Puerto Ricos resident commissioner in Congress, with Sen. Tydings presenting a similar bill, S. 1002, in the Senate. The Tydings-Piñero Bill, as it became known, provided for a referendum on the alternative forms of political status that would be acceptable to Congress. The alternatives defined in the bill were statehood, independence, and dominion (a form of sovereignty that was autonomous, nonterritorial, and provided for a permanent union with the U.S.).
In 1945, Muñoz Marin wrote to several members of Congress, "There is a wide disbelief here [in Puerto Rico] as to any political status that does not involve a transfer of sovereignty to the people of Puerto Rico. I share this belief because of the constitutional limitations involved. Congress cannotsave in the form of classic statehoodcreate sovereignty in a territory that continues to be part of the United States. Under this limitation, commonwealth status would have the nature of a loan of authority by Congress that is recallable at will."
In June 1946, Sen. Tydings announced he was departing for the Philippines. Therefore, Congress wouldnt address Puerto Ricos political status issue. The bill never made it out of committee.
Recognizing Congress wasnt going to act on the Tydings-Piñero Bill, on Feb. 20, 1946, Muñoz Marin had the Puerto Rico Legislature approve a bill calling for a plebiscite. Gov. Rexford G. Tugwell, in office from 1941 to 1946, vetoed the measure eight days later.
Tugwell said a plebiscite would be unfair to the people if Congress hadnt previously approved it and made some level of commitment regarding the acceptance of the people of Puerto Ricos express wishes. Congress hadnt done this, and Gov. Tugwell couldnt approve a project that provided for a unilateral expression of opinion without the consent of Congress.
The Jones Act of 1917 had established the procedures for the local Legislature to override a governors veto. To comply with these procedures and compel Gov. Tugwell to send the bill to the president for a final decision, Muñoz Marin obtained two-thirds of the votes needed in the Legislature.
President Truman returned the plebiscite proposal to Gov. Tugwell without his approval. In his letter to Tugwell, President Truman said, "Approval of the bill...might erroneously be considered by the people of Puerto Rico as an indication that the U.S. would accept any plan that might be selected at a plebiscite, and if the plan were not acceptable to Congress, it could well be argued that the U.S. was not keeping faith with the expressed will of the people of Puerto Rico."
Muñoz Marins failure to effectively address Puerto Ricos political status in Washington prompted various PDP leaders to abandon the party. In 1946, the members of the Pro-Independence Congress (PIC), which included many PDP leaders and had previously had the support of Muñoz Marin, formed the Puerto Rican Independence Party (PIP). Muñoz Marin had proclaimed the incompatibility of belonging to the PIC and the PDP.
In 1947, the Elective Governor Act (H.R. 3309) was enacted. The Department of the Interior made sure the Congressional Record clarified that the amendments to the Puerto Rico Organic Act brought about by the bill in no way altered the islands political relation to the U.S. The U.S. Congress wasnt relinquishing its constitutional authority over the island.
During a general assembly held in August 1948, the party included in its platform a measure to seek congressional authorization for Puerto Rico to prepare a constitution for its internal government. Muñoz Marin also planned to request permission for the local Legislature, when deemed appropriate, to call for a local plebiscite between statehood and independence. The proposal would allow voters to decide whether they agreed with the Legislatures timing in holding such a plebiscite. The door was opened for a potentially permanent indecision.
In 1948, the PDPs campaign was focused on opposing independence. Muñoz Marin became Puerto Ricos first elected governor in a landslide election in which he obtained 61% of the votes. With 27% of registered voters abstaining, the PDP received just over 9,000 votes more than it had in the 1944 election.
Muñoz Marin, now the elected governor and exercising real power, met with President Truman in Washington in 1949 and offered Puerto Ricos assistance with his Point Four Program in Latin America. The island would become a showcase for the U.S. democratic form of government. Muñoz Marin also began insisting that Puerto Rico not be referred to as a colony.
To further his notion that Puerto Rico was no longer a colony and had a new form of government, Muñoz Marin called the island a new kind of state in hearings before the House Public Lands Committee in 1949. The governor testified, "In passing the law allowing the people of Puerto Rico to elect their own governor, Puerto Rico is giving shape to a new kind of state. It is not an old kind of state, of course, but neither is it a dependency because it governs itself locally. It is not an old kind of state because it has no voting representation in Congress and pays no federal taxes. We have there the respected principle of no taxation without representation; but so far as local government is concerned, for all practical purposes, it is like a new kind of state."
Constitution of Puerto Rico: No change for the U.S. territory
Throughout the 1940s, politicians and scholars in Puerto Rico sought to resolve Puerto Ricos political status. By 1945, Antonio Fernos Isern was working on a document he called an act to establish the people of Puerto Rico as a self-governing community, federated to the U.S. with the consent of the people of Puerto Rico. In 1946, Fernos was appointed Puerto Ricos resident commissioner in the U.S. Congress and, in 1947, he submitted a draft of this act to Muñoz Marin, who was president of the Puerto Rico Senate.
Once Muñoz Marin arrived at La Fortaleza as governor, he began pushing for a constitution to govern the people of Puerto Rico. In 1949, he made it clear to the Public Lands Committee that there was still something missing in Puerto Rico, but he didnt anticipate it being too difficult to correct.
"The idea of allowing the people of Puerto Rico to draft and approve their own constitution in a manner similar to the way the States do when they are first admitted would be a tremendous step forward in principle, although in practice the amount of self-government would not be very differentas it is now substantial," testified Muñoz Marin before the committee.
Fernos eagerness to create a document that would provide for the organization of a constitutional government by the people of Puerto Rico was received with some apprehension by federal government officials. On Jan. 10, 1950, James P. Davis, director of the Interior Departments Division of Territories & Possessions, warned Fernos that a simple bill authorizing the people of Puerto Rico to draft a constitution that in no way attempted to change Puerto Ricos political or financial relationship with the U.S. should suffice.
Renowned Puerto Rico attorney Jose Trias Monge (who later became chief justice of the Puerto Rico Supreme Court), among others, joined Resident Commissioner Fernos in preparing various drafts of a bill that would eventually lead to a constitutional government. According to Trias Monge, the main issues under discussion at the time included the theory of a compact or the nature of the compact. Also addressed were just how clearly the idea of the compact would be presented to the U.S. Congress; bilateral relations; the applicability of federal laws to Puerto Rico without prior consent, and congressional approval of the constitution.
The end result of these discussions was H.R. 7674, which Fernos presented for consideration by Congress in March 1950. Several weeks later, Sen. Joseph C. OMahoney, chairman of the Interior & Insular Affairs Committee, and Sen. Hugh Butler presented S. 3336, a twin bill that also considered allowing Puerto Rico to draft its own constitution. During public hearings by the Interior & Insular Affairs Committee on S. 3336, Gov. Muñoz Marin testified, "Puerto Rico is a community of American citizens that should have whatever name is proper and govern themselves in their local functions of government under the federal Constitution."
During hearings regarding Puerto Ricos constitution in June 1950, Rep. Fred L. Crawford from Michigan and Delegate Edward Lewis Bartlett from the territory of Alaska (who later became Sen. Bartlett from the state of Alaska) asserted Congress sovereignty over Puerto Rico. They said, "Congress retains all essential powers set forth under our constitutional system, and it will be Congress and Congress alone that ultimately will determine the changes, if any, in the political status of the island."
Crawford further said, "As long as no actual change would be made in the United States-Puerto Rico relationship, we think the bill should be enacted. Puerto Rico can be a colonial possession and have a great deal to say about [its] own government under which Puerto Ricans live."
In written testimony presented to the Public Lands Committee, Secretary of the Interior Oscar Chapman said, "In no way would this exclude any future determination by Congress about the definite political status of Puerto Rico.... [T]he bill under consideration would not alter the political, social, and economic relations of Puerto Rico with the United States."
Puerto Ricos leaders also accepted Congress authority over the island. Resident Commissioner Fernos, who had striven to establish the people of Puerto Rico as a self-governing community, testified, "The bill would not change the status of Puerto Rico in its relation to the United States. It would also not alter the sovereign powers acquired by the United States in relation to Puerto Rico under the terms of the Treaty of Paris. Puerto Rico would adopt its local constitution, but its position within the United States system of government would remain unaltered."
Even members of the islands highest court accepted that a constitution wouldnt bring about a change in sovereignty for the island. Puerto Rico Supreme Court Associate Justice Cecil A. Snyder testified, "There is no change in sovereignty. The economic and legal relationship between Puerto Rico and the United States remains intact. Yet, Puerto Rico is granted liberty in its local affairs, although it remains within the framework of the United States."
In 1950, Senate Report 1779 (issued in S. 3336) and House Report 2275 (issued in H.R. 7674) both said, "The bill would not change the fundamental relationpolitical, social, and economicof Puerto Rico with the United States."
Proposals in the Senate and House bills (S. 3336 and H.R. 7674) were eventually enacted into what later became Public Law 600, which provided federal statutory authorization for the people of Puerto Rico to write their own constitution, but the law was subject to congressional approval. President Truman signed Public Law 600 on July 3, 1950.
Almost a year later, on June 4, 1951, a referendum was held in Puerto Rico in which voters were given the option of accepting or rejecting Public Law 600. Less than 65% of the islands registered voters participated. Of those who participated, 387,016 voters, or 76% of the total, endorsed the measure.
Under Section 2 of Public Law 600, the Puerto Rico Legislature was authorized to call a constitutional convention to draft a constitution. In elections on Aug. 17, 1951, the members of the constitutional convention were elected, with the PDP obtaining 70 of the total 92 delegates. The PIP abstained from the process. After being chosen by Muñoz Marin, Fernos was elected to preside over the constitutional convention; six months later, on Feb. 6, 1952, the Constitution of Puerto Rico was approved.
The body politic to be created by the constitution was called Estado Libre Asociado de Puerto Rico locally but was translated as the Commonwealth of Puerto Rico, instead of the Free Associated State of Puerto Rico. Unlike the Commonwealth of the Philippines, the Commonwealth of Puerto Rico wasnt a transition phase toward independence.
In a yes or no referendum on March 3, 1952, the Constitution of the Commonwealth of Puerto Rico was approved by 373,594 affirmative votes, or 81.5% of the participating electorate. An unprecedented 40% of Puerto Ricos registered voters abstained from the process.
Apparently perceiving that an explanation for such a low turnout was required, Muñoz Marin said before the Senate Interior & Insular Affairs Committee on April 29, 1952, "It should be pointed out that the percentage of eligible voters going to the polls on all of these occasions was larger than the percentage usually attending presidential elections in the continental United States." In Puerto Rico, the participation rate of registered voters had always exceeded 70% and had reached as high as 90%.
On March 12, 1952, the Constitution of the Commonwealth of Puerto Rico was sent to President Truman, and he referred it to the U.S. Congress for approval on April 22, 1952. Before approving the constitution, Congress exercised its plenary powers over Puerto Rico pursuant to the Territorial Clause and enacted several amendments.
First, Congress eliminated Section 3, which provided that if the legislative body should fail to take any action after receiving the constitution from the president, it would be considered approved. Congress also imposed, in a unilateral manner, an amendment to Section 5, which provided for compulsory attendance at elementary public schools to the extent permitted by the facilities. Furthermore, Section 20 of the Bill of Rights, providing for the recognition of several human rights, was eliminated in its entirety. Finally, in a Joint Congressional Resolution, an amendment was added to Article VII to ensure that any further amendments to the constitution didnt alter the fundamental structures defining the relationship between the U.S. and Puerto Rico.
Congress approved the amended constitution by means of Public Law 447, which President Truman signed on July 3, 1952. The following week, 75 constitutional-convention delegates accepted the congressional amendments, and on July 25, 1952, Gov. Muñoz Marin proclaimed the Constitution of the Commonwealth of Puerto Rico.
It wasnt until the general election in November, however, that Congress amendments to the constitution were submitted to the people of Puerto Rico for approval. More than 186,427 or 28% of the 664,947 voters who participated in the elections abstained from voting on the amendments.
It wasnt long before the commonwealths constitution came under criticism. "Though the formal title has been changed, in constitutional theory, Puerto Rico remains a territory," David M. Helfeld, a respected constitutional scholar, wrote in "Congressional Intent & Attitude Toward Public Law 600 & the Constitution of the Commonwealth of Puerto Rico" in 1952. "This means Congress continues to possess plenary but unexercised authority over Puerto Rico. The compact isnt a contract in a commercial sense. It expresses a method Congress chose to use in place of direct legislation. Constitutionally, the most meaningful view of the Puerto Rican Constitution is that it is a statute of the Congress, which involves a partial and nonpermanent abdication of Congress territorial power."
Although the people of Puerto Rico now had a constitution to guide their internal government, when it came to the islands political status, things pretty much remained the same. Judge Juan R. Torruella of the U.S. Court of Appeals for the First Circuit wrote in the book review "¿Hacia donde vas Puerto Rico?," published in the Yale University Law Journal in 1998, "Overwhelming evidence exists that before, during, and after the approval of Public Law 600, Congress didnt intend to change the fundamental status of Puerto Rico from that of an unincorporated territory or to relinquish its plenary authority."
This fact may be the reason why on Aug. 24, 1952, less than 30 days after Muñoz Marins proclamation of the commonwealths constitution, the governor and the PDP wanted to make changes to the Puerto Rico Federal Relations Act.
On March 27, 1952, before Congress approval of the constitution, Resident Commissioner Fernos had already prepared a draft of the proposed amendments to the act called the Puerto Rico Federative Relations Compact.
On May 4, 1952, Fernos presented House Joint Resolution No. 252 to the U.S. Congress, which included the proposed amendments that had been endorsed by the PDP leadership. Fernos called the proposed changes to the Federal Relations Act a cosmetic bill. Nonetheless, the PDP abandoned the effort in 1953, despite Fernos objections, to try for more-substantial amendments later.
The issue was picked up again in 1959. Carl J. Friedrich had been enlisted to assist Fernos and Trias Monge, among others, in drafting what would result in a legislative resolution to request clarifications and modifications to the Federal Relations Act. Friedrich, a Harvard University professor, had participated in the efforts leading to the Constitution of the Federal Republic of Germany.
The clarifications included that commonwealth (Estado Libre Asociado) be accurately described in the Puerto Rico Federal Relations Act so the island could in no way be classified as a possession or a territory. Among the modifications was the creation of mechanisms so Puerto Rico, at its request, could be included in or excluded from commercial treaties of the U.S. In addition, Fernos would request from Congress a mechanism to enable the commonwealth government to gradually assume federal responsibilities compatible with the principle of permanent association.
On March 23, 1959, Fernos introduced H.R. 5926 (later H.R. 9234), and on May 1, 1959, Sen. James A. Murray, chairman of the Interior & Insular Affairs Committee, introduced a twin bill, S. 2023 (later S. 2708), seeking permanent association, among other legislative changes. The measures became known as the Fernos-Murray Bill of 1959, which included the "Articles of Permanent Association of the people of Puerto Rico with the United States" and proposed amendments to Public Law 600. The proposals were received with hostility and, at the request of Muñoz Marin, were dropped.
Although Puerto Rico ended the 1950s with a constitution that would govern its people, about 20% of the islands population of 2.2 million had left for the U.S.
Elections held during the 50s were also sobering for the PDP, as opposition parties obtained a substantial increase in the number of votes they received. The Republican Statehood Party (previously known as Estadista Puertorriqueño) more than doubled its support from 85,591 votes in 1952 to 172,838 in 1956. The PDP, on the other hand, received 433,010 votes in 1956, an increase of just 1,601 from the 431,409 votes obtained in 1952. The PIP almost doubled its votes from 65,351 in 1948 to 126,228 in 1952, but it dropped to 86,386 votes in 1956.
The decade closed with Congress defining Puerto Rico as a possession in the Federal Aviation Act of 1958, just six years after the Constitution of Puerto Rico had been enacted.
In the 1960 election, the Republican Statehood Party continued growing, obtaining 252,364 votes, representing an increase of 46% over the previous election. The PDP added only 24,870 votes, for an increase of barely 6%. Muñoz Marins political party, however, still commanded a substantial majority with 457,880 votes.
In December 1962, the Puerto Rico Legislature approved Joint Resolution No. 1: "To propose to the U.S. Congress the procedure for establishing the final political status of the people of Puerto Rico" and that "...the people of Puerto Rico favor the determination of the final status of Puerto Rico in such a manner that no doubt may remain about the noncolonial nature of said status."
For commonwealth, the joint resolution sought to obtain recognition and reassertion of the sovereignty of the people of Puerto Rico so that no doubt would remain about their capacity to enter into a compact under conditions of juridical equality. It also called for assurance regarding the permanence and irrevocability of the union between the U.S. and Puerto Rico on the basis of common citizenship, common defense, common currency, free market, and common loyalty to the values of democracy and of other conditions as may be regarded, in the compact, as mutually beneficial to the U.S. and Puerto Rico. Among other things, the joint resolution sought to grant Puerto Rico the right to vote for the U.S. president and the adoption of a formula under which the people of Puerto Rico would contribute to defray the general expenses of the U.S. government.
Congress responded to Joint Resolution No. 1 with H.R. 5945, known as the Aspinall Bill of 1963 because it was submitted by Rep. Wayne Norviel Aspinall, chairman of the House Interior & Insular Affairs Committee. These efforts culminated with the enactment of Public Law 88-271 in Feb. 20, 1964, which, approved the United States-Puerto Rico Commission on the Status of Puerto Rico.
The commission was to study all factors, including, but not limited to, existing applicable laws, treaties, constitutions, and agreements that may have a bearing on the present and future relationship between the U.S. and Puerto Rico. The commission issued its report on Aug. 5, 1966, but no decision was made on the permanent resolution of Puerto Ricos political status.
At a general assembly in Mayaguez on Aug. 16, 1964, Gov. Luis Muñoz Marin had rejected the PDPs nomination to run for another term and had nominated Roberto Sanchez Vilella, who subsequently won with almost 60% of the vote. After several decades trying to resolve Puerto Ricos colonial status, Muñoz Marin left office having had little success.
Since then, efforts to address the issue of Puerto Ricos status have been unsuccessful. Even with the enactment of Public Law 600, Congress hasnt hesitated to continue treating Puerto Rico as a territory with the support of the U.S. Supreme Court.
In cases such as Califano v. Torres (1978) and Harris v. Rosario (1980), the Supreme Court reaffirmed Congress plenary powers over Puerto Rico pursuant to the Territorial Clause and also confirmed the islands status didnt change with the advent of the Constitution of Puerto Rico. These cases have allowed Congress to treat Puerto Rico differently from the States. The legal precedent established by Balzac v. Porto Rico (1922), which states Puerto Rico is an unincorporated territory of the U.S., remains very much in effect.
Congress hasnt hesitated to exercise its authority over Puerto Rico in many vital issues. In 1984, for example, Congress unilaterally decided not to return to the Treasury of Puerto Rico the excise taxes in excess of $10.50 a gallon collected on locally produced rum, although Section 9 of the Puerto Rico Federal Relations Act provides that "taxes collected on articles produced in Puerto Rico and transported to the U.S. shall be reverted to the Treasury of Puerto Rico."
Another clear example of Congress plenary powers over Puerto Rico was the derogation of Section 936 of the Internal Revenue Code. Congress, through the Small Business Job
Protection Act of 1996, unilaterally terminated the Section 936 credit.
In U.S. v. Casablanca Motors (1994), the U.S. District Court for Puerto Rico concluded, "The current [federal] tax exemption Puerto Rico enjoys is dangerously at the mercy of Congress because there is no basic principle of the U.S. Constitution preventing Congress from gradually extending its full taxing power to Puerto Rico."
Validating the islands colonial status once again, Judge Juan Perez Jimenez of the U.S. District Court for Puerto Rico wrote in PDP v. Government of Puerto Rico (1998), "Never was Puerto Ricos approval sought in the derogation of Sec. 936, in the enactment of the Federal Aviation Act, or in the implementation of the legislation related to the rum excise tax. All of these laws of Congress reflect not agreements between equals in the nature of a compact but unilateral acts pursuant to the Territorial Clause of the United States Constitution."
On Jan. 18, 2001, only days before leaving office, the administration of President William J. Clinton responded to a request from Sen. Frank H. Murkowski, chairman of the Energy & Natural Resources Committee, to provide an analysis on the status options for Puerto Rico.
In a letter signed by Assistant Attorney General Robert Raben, the Clinton administration responded, "The U.S. Constitution recognizes only a limited number of options for governance of an area. Puerto Rico could constitutionally become a sovereign nation, or it could remain subject to United States sovereignty. It can do the latter in only two ways: it can be admitted into the U.S. as a state, or it can remain subject to the authority of Congress under the Territorial Clause. The terms of the U.S. Constitution dont contemplate an option other than sovereign independence, statehood, or territory status."
Economist Manuel Maldonado assisted with this series. Elizabeth Roman edited the articles.
In next weeks special report, CARIBBEAN BUSINESS will focus on Puerto Ricos economic development under the commonwealth from 1950 to 2003. In subsequent editions, we will address the islands economic development in comparison with states on the U.S. mainland and with foreign countries.
This Caribbean Business article appears courtesy of Casiano Communications.