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 dilemma.  

-- 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 territories.

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 nationhood.

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 be:

-- 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).

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