From the standpoint of American constitutional
federalism, the PDP proposal of March 19, 1997, is best
understood as a proposal to end Puerto Rico's unincorporated
territory status by creating a new political status with some of
the attributes of statehood and some of the powers of separate
nationhood. In essence, it is an attempt to convert local
constitutional self-government under the current territorial
status into separate national sovereignty and nationality with
permanent union and common citizenship. Unable to make a choice
between statehood and independence, Puerto Rico would have
Congress convert the international treaty-based relationship of
free association into a "nation-within-a-nation" status
irrevocably guaranteed by the Congress within the framework of
the U.S. Constitution.
Comparison to Historical
Constitutional Practice Regarding Statehood
The primary differences between the "New
Commonwealth" for Puerto Rico and the status of the rest of
the states would be:
-- Permanent union and irrevocable citizenship
would be created by federal statute defining the commonwealth
status as non-territorial, rather than termination of territorial
status through admission to the union under clause 1 of section 3
in article IV of the Constitution.
-- Puerto Rico would enjoy the essential rights
of states (binding on Congress), but the commonwealth would enjoy
"autonomy" (not be bound) with respect to critical
burden-sharing elements of membership in the federal union. Thus,
the benefits of statehood would be guaranteed, but Puerto Rico's
reciprocal obligations to the nation would be not be
constitutionally defined. Puerto Rico's contribution to the
nation would be the subject of on-going negotiation and ad hoc
decision-making, the very conditions that led to undue influence
by the Section 936 lobbyists and creation of the current status
-- Congress could not change the initial
negotiated terms of the relationship based on changing national
priorities. Specifically, Congress would agree in the statute
that in perpetuity every future Congress will be bound by this
"New Commonwealth" status, which is
"unalterable" without consent of Puerto Rico.
-- This really means that once Congress
and the people of Puerto Rico have consented to the terms of the
relationship the Supremacy Clause in article VI of the
Constitution would be suspended to the extent required to enforce
the rights, special preferences and exemptions from laws and
responsibilities of the states which would be provided to the
commonwealth ("associated free state" in Spanish).
Comparison to Historical Constitutional
Practice Regarding Territories
Since the period following the Northwest
Ordinance of 1789 when the process for admission of new states to
union began, the purpose of special measures to promote increased
self-government in the U.S. territories historically has been to
promote a smooth transition to full incorporation and statehood.
Congress departed from this tradition when the U.S. acquired the
Philippines, Cuba, Guam and Puerto Rico from Spain in 1899, and
the U.S. Supreme Court defined them as "unincoporated"
territories. Thus, in this century increased self-government for
unincorprated territories has meant separate nationhood for Cuba
and the Philippines, statehood for Hawaii and Alaska, and varying
degrees of local self-government for other unincorporated
As a result, instead of statehood like Hawaii
or independence like the Philippines, Puerto Rico remains in an
unincorporated territory status like Guam and the Northern
Mariana Islands. Like the Northern Mariana Islands, Puerto Rico
has a "commonwealth" structure for internal
self-government under a local constitution adopted with the
consent of the people -- who enjoy statutory U.S. citizenship.
The Philippines also had the "commonwealth" structure
of internal self-government from 1935 to 1946, ending in separate
In this context it become clear that the idea
behind the PDP "New Commonwealth" proposal is to make a
specific set of special rights for an unincorporated territory
permanent, rather than resolving the status of the territory
through independence or statehood. The essential transaction
between Congress and the Puerto Rico, as proposed by the PDP, is
to mix-and-match the most beneficial features of statehood and
separate nationality, make it binding on the U.S. forever, and
label it as a non-territorial and therefore non-colonial status.
The primary differences between the "New
Commonwealth" and the historical practice of the U.S.
concerning Puerto Rico and other unincorporated territories would
-- Congress supposedly would no longer have the
ability to exercise its express power to determine the status of
Puerto Rico and its inhabitants under the Territorial Clause of
the Constitution (Article IV, Section 3, Clause 2). This proposed
elimination of an constitutional express power of Congress by
statute supposedly would make the "New Commonwealth"
status a non-territorial.
-- The nationality and citizenship of the
residents of Puerto Rico would be guaranteed under the 5th and 14
Amendments on the same basis as it is for persons born in the
states rather than being determined by Congress under statutory
provisions enacted pursuant to the Territorial Clause and article
I, section 8 of the Constitution. At present, statutory
citizenship based on birth in Puerto Rico is subject to
regulation and termination at the discretion of Congress in
accordance with the U.S. constitutional process. See, Rogers v.
Bellei 401 U.S. 815 (1971).