MARCH 28, 1998



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Today’s conference takes place at a defining moment for the people of Puerto Rico. After one hundred years of federal rule, the United States House of Representatives has moved to provide for the first meaningful route to self-determination for the Puerto Rican people under our federal system. H.R. 856 is not perfect, but it sets forth a choice for the people of Puerto Rico between the only three options recognized by United States Constitutional and political realities. H.R. 856 builds upon two fundamental realities that are too easy to forget. First, Congress asserted again that Puerto Rico is currently governed under the Territory Clause of the U.S. Constitution. Second, Congress recognized that the people of Puerto Rico must have a say in whether that Territory Clause rule should continue. Many people on different sides of the political status issue would like to obscure or forget those two fundamental points.

Now that the there is a path for the people of Puerto Rico to express their self-determination on Puerto Rico’s political status, there are some who seek to block that path. They would block the path to self-determination not by building a barrier across the path, but rather by obscuring the path by throwing up smoke and dust. Opponents of the H.R. 856 process claim there is no path to self-determination and point to the smoke they have raised. In truth, H.R. 856 is most significant because it clears a path to self-determination. That path has three forks which lead to different futures, but the people of Puerto Rico deserve a say in which fork they will choose to travel.

For the first time under any bill approved by either House of Congress, H.R. 856 accurately defines the three status options which currently exist for Puerto Rico under the U.S. Constitution and international law recognized by the United States -- independence (including free association), statehood, or continued unincorporated status with local self-government subject to supremacy of federal law and the discretion of Congress.

H.R. 856 would establish a multi-phase self-determination process for definition and approval of future status options by Congress and the residents of Puerto Rico. Like the federal statute under which the current status was established in 1952 (P.L. 81-600), this procedure assures mutual agreement of both parties, recognizes the constitutional authority and responsibility of Congress to act on behalf of the nation as a whole, and respects the right of the residents of Puerto Rico to self-determination.

Thus, H.R. 856 is now the state-of-the-art model for decolonization of Puerto Rico, and any U.S. Senate or Government of Puerto Rico status resolution proposal certainly will be compared to the yardstick of H.R. 856. As the Senate begins to consider S. 472, which is less complicated but compatible with H.R. 856, anyone wanting to introduce a different theory of status resolution for Puerto Rico will have to recognize that the record created in the House is definitive, authoritative and comprehensive. It is a record that strongly supports the substance, structure and procedure contained in the House bill as passed on March 4.

This is not to say that other approaches should not be considered, but only that H.R. 856 is based on established norms of U.S. and international law, and the Senate will have to give considerable weight to the thorough manner in which the House went about the work of building a foundation for its bill brick-by-brick. House Report 104-713, Part 1, and House Report 105-131, Part 1, as well as the impressive record of House hearings in Washington and Puerto Rico, represent powerful documentation of the legal and political basis for the House action.

Consequently, no matter how pleased or displeased one may be about the approval of H.R. 856, it is now the defining reality in any discussion of Puerto Rico's political status. Thus, in this statement I will use H.R. 856 as a point of common reference.


In my own view, H.R. 856 is constitutionally sound and will put Puerto Rico back on track to completion of the decolonization process that began in 1952. Instead of reacting to political hot-button issues being raised about this bill, Congress should consider the matter in the larger context of the national interest -- including long term fiscal policy and the advancement of democracy.

1998 is the centennial of United States sovereignty and nationality in Puerto Rico. Yet, Puerto Rico's economic convergence and political integration with the rest of the nation is in a state of arrest -- even though the island has been within the national borders, political system and customs territory of the U.S. for a century.

Among the major off-shore and non-contiguous possessions under U.S. sovereignty at the beginning of the century, Puerto Rico was singled out and diverted from the historical constitutional process for decolonization of territories. Instead, the "commonwealth" became a laboratory for New Deal and Great Society experiments in social engineering and command economics. This resulted in a federal tax-credit driven economy, increasingly dependent on artificial stimulus of federal revenue exemptions while important sectors of the real economy stagnated.

Why was this development model imposed in lieu of the historic process for economic and political development leading to either separate nationhood (e.g., the Philippines) or full integration (e.g., Hawaii and Alaska)? Why did Congress fail to establish a policy and process for resolution of Puerto Rico's permanent political status as it did in the case of other major U.S. insular possessions with large territories and/or populations? The answers are complex, but the consequences are clear.


Even though Puerto Rico has been under U.S. sovereignty and persons born there have had U.S. nationality for 100 years, the 3.8 million U.S. citizens of Puerto Rico are disenfranchised in the federal political process. Internal self-government under a local constitution was authorized by Congress and approved by the residents in 1952, but federal law is supreme in Puerto Rico and residents do not have voting representation in the Congress. Puerto Ricans have served with valor in every war this century, but do not vote for their President and Commander-In-Chief.

As long as this inequality exists, there will be pressure to establish special rights and a separate political order to "compensate" Puerto Rico for the current lack of equal rights. Thus, the goal of some in Puerto Rico is to transform Puerto Rico into a "free associated state" with permanent union and U.S. citizenship, but also with a separate nationality and sovereignty superior to that of the states of the union -- including a veto power over federal law. In reality, the proposals to "enhance" or "perfect" commonwealth -- advanced by those whose political fortunes depend on perpetuating the status quo -- would merely institutionalize permanent disenfranchisement and second-class status for the U.S. citizens of Puerto Rico.

Thus, while some have suggested Puerto Rico might become an "American Quebec" if statehood is achieved, in reality that scenario is plausible only if commonwealth continues without a process to achieve either statehood or independence. The warning signs are clear.

For example, in 1987 Puerto Rico's commonwealth party Governor tried to conduct a separatist foreign policy -- including entry into treaties with major world powers. Secretary of State George Shultz had to intervene to restore federal authority and the rule of law. The commonwealth party also tried to repeal English as an official language in Puerto Rico.

Similarly, in 1997 the pro-commonwealth majority on Puerto Rico's Supreme Court ruled that Puerto Rico has a separate nationality apart from that of the United States, and that citizenship of Puerto Rico confers political rights superior to citizenship of the states of the union. Specifically, the ruling held that a person born in Puerto Rico who renounces loyalty to the U.S. and is certified by the U.S. State Department to have lost U.S. citizenship can stay in Puerto Rico as an illegal alien under federal law without a visa and vote in elections under Puerto Rican law. Congress and the federal courts have denied such treatment to citizens in the states.

Fortunately, the current Legislature of Puerto Rico has approved and the Governor signed a statute confirming one U.S. nationality in Puerto Rico as a matter of local as well as federal law. English has been preserved as an official language and its use in schools and business is expanding. In addition, the State Department has intervened to enforce U.S. nationality law in the citizenship renunciation cases.

However, the attempt of the separatistas to nullify federal law and establish a separatist jurisprudence -- while hiding behind a seemingly benign appeal for "autonomy" -- demonstrates that Puerto Rico's status must be resolved to avoid an inevitable separatist struggle within the framework of U.S. federalism. The disciplines of admission to statehood or succession to separate sovereign nationhood would cause the separatist agenda to be subsumed in the democratic process of self-determination. Only continued commonwealth will cause the inherent conflict of values arising from inequality to persist.


Federal program and services outlay in Puerto Rico is approximately $10 billion per year. Yet, individuals and corporations in Puerto Rico pay no federal income tax. The corporate tax credit enabled U.S. companies annually to write off over $3 billion in federal taxes. The Puerto Rico tax credit was repealed by Congress in 1996, but in combination with $10 billion in direct expenditures it brought the total annual cost of the present territorial regime to $13 billion -- without off-setting revenues.

Even after the ten year period for phasing out the "corporate welfare" tax credit scheme, U.S. taxpayers nation-wide still will be subsidizing $10-$12 billion in federal programs and services for the population of a territory which pays a high tax rate to the local government but no federal income taxes. federal outlays could increase due to the economic effects of investor uncertainty about Puerto Rico's status. Commonwealth is a budgetary sink-hole.

Opponents of a Congressionally managed process of non-binding self-determination for Puerto Rican born Americans had better explain how they will resolve the status problem and end the open-ended outlay of $12 billion in federal tax dollars annually with no prospect for requiring a disenfranchised Puerto Rico to pay its own way in the future. Under H.R. 856 we could have a status solution in ten years, but if this bill is killed we will have spent $12 billion and at the end of ten years be in the same dilemma we face today.

Thus, those who have adopted the "ain't broke, don't fix it" posture with respect to Puerto Rico's present status had better think again.


Ignoring some of the hot air, the real issue presented for debate is whether the U.S. wants to enter the new century with no plan for ending political disenfranchisement and constitutional limbo for Puerto Rico in favor of full self-government. H.R. 856 presents a compelling case for self-determination in Puerto Rico that it passed the House with strong bipartisan support. In addition, amendments which sought to vindicate separatist doctrines and theories about Puerto Rico's current status were overwhelmingly rejected on a bipartisan basis.

An understanding of the history and development of H.R. 856 in Puerto Rico as well as in Congress will help sort out the issues as the Senate addresses companion legislation.

First, on December 14, 1994, the Legislature of Puerto Rico adopted Resolution 62, requesting that the U.S. Congress respond to the results of a political status plebiscite conducted in the territory under local law in 1993. It has been noted by some that the combined 1993 vote for commonwealth (48%) and independence (4.4%) constituted a majority vote for options other than statehood (approved by 46.3%). However, it also must be noted that 95% of the voters approved statehood and commonwealth definitions guaranteeing permanent union with the U.S. and irrevocable U.S. citizenship that can come only with statehood.

Ambiguities in the 1993 plebiscite results caused the Legislature of Puerto Rico to request the 104th Congress, if it did not "accede" to the 1993 ballot definitions and resulting vote, to determine "the specific status alternatives" the United States "is willing to consider," and then to state what steps the Congress recommends be taken in order to establish for the territory "a process to solve the problem of its political status." Thus, Resolution 62 was a formal request by the elected representatives of the people of Puerto Rico that Congress address itself to resolving how self-determination for Puerto Ricans could be effected best.

In nearly 100 years since U.S. sovereignty commenced under the Treaty of Paris ending the Spanish American War, Congress never has afforded the people of Puerto Rico an opportunity freely to express their wishes regarding a fully self-governing political status. Both Puerto Rico and the U.S. have benefited greatly from a close political, economic, social and strategic relationship, and Puerto Rico is poised for increased prosperity led by a new wave of U.S. investment in a diversified post tax reform market economy. But failure to resolve the status issue in favor of a permanent, stable and predictable relationship is a fundamental problem.

While establishing the local commonwealth system for administration of territorial affairs represented progress toward greater self-government in 1952, it has not led to equality or full self-government. Puerto Rico remains in a political dilemma under the Territory Clause power of Congress.

H.R. 856 recognizes that any solution must serve the U.S. national interest as well as that of Puerto Rico, and that the U.S. also has a right to self-determination in its relationship with the territory. That is why, in the case of Puerto Rico, self-determination best can be accomplished through a three-stage process in which Congress and the people of the territory define and approve a future political status, with a smooth transition to full self-government to be accomplished in approximately 10 years under procedures set forth in H.R. 856.

As to the issue of language also addressed by critics of the bill, the bill recognizes that any national official language policy enacted by Congress and made applicable to all the states will apply to the Puerto Rico if it becomes a state of the union. English and Spanish both are official languages in Puerto Rico (like English and Hawaiian in the 50th state and English and Spanish are official in New Mexico), reflecting a tradition dating back to 1902. The former pro-commonwealth governor and legislature repealed the English official language requirement a few years back, and lost the next election to the current pro-statehood governor and legislature whose first act was to restore English as an official language.

It is misleading to suggest there is a Quebec-like language crisis in Puerto Rico contributing to "tribalism and separatism" within American political culture. If a comparison is to be made, imagine how the vote would go in Quebec if -- in addition friction over the French language question -- the Canadian federal government denied the people of that province voting representation in the national parliament and disenfranchised residents of Quebec in national elections! That is the Puerto Rican experience in America today. Compared to this denial of equal citizenship rights, language is hardly the real issue which divides our fellow citizens in Puerto Rico from the rest of the nation.

Among other things, how do we explain this less-than-equal citizenship to the Puerto Rican-American soldier who saved his comrades-in-arms just before the explosion at the military barracks in Saudi Arabia? Similarly, the Puerto Rican-American soldier killed early in the Somalia conflict, and the Puerto Rican-American Navy pilot shot down over Libya a decade ago, remind us of the patriotism of thousands upon thousands of Puerto Rican-Americans who volunteered or were drafted in WWI, WWII, Korea, Vietnam and Kuwait, and who are serving in the uniform of this country today.

To promote respect and cooperation among our citizenry instead of widening the separatism already inherent in territorial status, in establishing an official language policy for the nation as a whole Congress will treat Puerto Rico equally with all the states of the union. H.R. 856 expressly so provides in the event Congress and the people decide Puerto Rico's destiny is to become the 51st state.

The United States is the most pluralistic society in the world, and the question is whether the people of Puerto Rico now are ready, finally, to join the union permanently on the basis of equality, or establish separate sovereignty, nationality and citizenship. When that question is answered through a free and informed voting process, Congress will be in a position to carry out its constitutional responsibilities regarding the political status of Puerto Rico.


Approval of H.R. 856 is not the only recent development which clarifies the choices for Congress and the residents of Puerto Rico in seeking the resolve the status question. For recently the President of the Popular Democratic Party of Puerto Rico, the pro-commonwealth party, announced that Puerto Rico will seek Senate acceptance of an autonomous form of commonwealth which is closer to the international treaty based status of free association than it is to the present status which currently exists within the framework of the U.S. Constitution. Public statements by the PDP indicate the proposal will include foreign affairs authority and devolution of primary sovereignty to a separate body politic which will have a separate nationality. At the same time, federal law could continue to apply directly if agreed by Puerto Rico, and many of the same federal functions enjoyed by the States of the Union, including defense, postal services and currency would continue.

The problem with the PDP proposal is that it would convert the current commonwealth established under the Territory Clause into free association, but at the same time attempt to retain some of the domestic law features of the present commonwealth which are incompatible with free association. Free association is a treaty based status which the U.S. recognizes and deals with as a foreign affairs matter. Free association is a form of separate nationality and sovereignty, while the U.S. sovereignty, nationality and citizenship in Puerto Rico now arises under the domestic law of the United States and the constitutional practice of this nation under the Territorial Clause.

Thus, the inclusion in the PDP "Treaty of Union" of guaranteed full U.S. citizenship and permanent union with the United States, which Puerto Rico does not even enjoy as a commonwealth today, exceeds the rational mind's capacity for the suspension of disbelief. Nevertheless, the commonwealth party's new proposal is welcome because, in one sense, the PDP is finally telling Congress plainly that it wants a treaty-like bilateral pact that goes much farther than the current commonwealth relationship.

This open, honest and direct revelation of the "have it both ways" status theory of the PDP is refreshingly candid. More importantly, it will end the shell game that has been played for years between the PDP and Congress, in which the nature of the status quo and the options for status resolution have been shrouded in intentional ambiguity. I believe that clarity will cause the nation-within-a-nation commonwealth doctrine ultimately to be rejected by the federal government. The reasons are numerous and of fundamental importance to the success of American federalism in the next century.

First, the idea that statutory citizenship conferred on residents of an unincorporated territory should be converted into the same full citizenship guaranteed under the U.S. Constitution for persons born in the States of the Union runs counter to the federal interest in reinforcing the bond of citizenship between the United States and those born or legally naturalized in the U.S. under the 14th Amendment of the Constitution. Granting equivalent nationality rights and citizenship status to persons not born or naturalized in the States of the Union would be very difficult to justify politically; more fundamentally, such a scheme is not constitutionally sound.

The notion that full 14th Amendment-equivalent citizenship would be effected by a so-called "treaty" purporting to create a permanent "union" between the U.S. and an emerging separate sovereign nation is a scheme so full of constitutional contradictions that it nearly defies logical analysis. While any such instrument would have the force and effect of federal law upon approval by both Houses of Congress and signature by the President, it would not thereby become a permanent feature of the U.S. constitutional structure. Like all other statutes, it would not be binding on future Congresses in a way that would create a permanent political status for Puerto Rico or guaranteed U.S. citizenship for its residents. That is one of the fundamental differences between a constitution and a statute.

Moreover, free association is not the appropriate vehicle for the people of Puerto Rico if they want to achieve full 14th Amendment citizenship or the equivalent thereof. If the people of Puerto Rico want full constitutional citizenship guaranteed forever, statehood is the only path to that result. A "treaty of union" does not create a constitutional status for Puerto Rico or a guaranteed citizenship, unless the U.S. Constitution itself were amended to create a new category of statehood.

Efforts to achieve permanent U.S. citizenship, permanent union and to develop a separate nationality and conduct foreign policy and trade relations, at the same time must fail before the U.S. Congress. The other fifty States are not likely to agree to give Puerto Rico a better deal under the American Union than the States themselves currently have under the existing system of federalism. The PDP still has not answered the question raised in the House hearings when Members like Mr. Tauzin from Louisiana responded to the PDP's "New Commonwealth" proposal by asking if their own state could get a deal like that. What State or territory would not take that "have it both ways" deal if they could get it?

The fate of the PDP's "New Commonwealth" proposal in the House was sealed, in part, when the PDP witness at hearings in San Juan responded to questions by Mr. Kennedy of Rhode Island by asserting that U.S. sovereignty in Puerto Rico is that which is delegated to the U.S. by Puerto Rico. Such an unusual delegation would be possible only under a free association treaty between the U.S. and Puerto Rico upon succession of Puerto Rico to separate sovereignty, nationality and citizenship.

The idea that U.S. sovereignty is delegated today as a result of the 1952 constitution is not a rational or real world interpretation of the current allocation of sovereignty under the present status with commonwealth, as the PDP president argued in San Juan. If the new commonwealth party proposal turns out to be nothing more than an attempt to repackage the old "have it both ways" doctrine of separate nationality with full dual U.S. citizenship and permanent union it seems quite likely to be repudiated in the Senate as it was in the House.

I also want to note that the ACLU has issued a report asserting that the provisions of H.R. 856 may need technical revisions due to the effect of requiring those with statutory U.S. citizenship due to birth in Puerto Rico to elect between continued allegiance to the U.S. and allegiance to the new nation of Puerto Rico. Those who elect allegiance to the U.S. retain statutory U.S. citizenship and those who acquire Puerto Rican citizenship are no longer eligible to retain U.S. statutory citizenship.

Since this provision prevents dual citizenship, at least as a result or feature of the transfer of sovereignty, nationality and citizenship and succession of state process itself, and prevents those with statutory citizenship from passing that already limited form of citizenship to children born in Puerto Rico if it becomes a separate and foreign nation, the ACLU argues that the election of allegiance provision of H.R. 856 may not be constitutionally permissible. The reasoning is that other U.S. citizens have a statutory right to apply for citizenship on behalf of foreign born children and spouses, and Puerto Rico born U.S. citizens who elect allegiance to the U.S. after Puerto Rico becomes a separate nation must have the same rights in this regard as all other U.S. citizens.

I believe the ACLU will find that H.R. 856 actually is pretty well thought out, and vindicates the most fundamental human and constitutional rights, while regulating the transfer of nationality and citizenship in a manner that is constitutionally permissible. Further, I do not agree that those whose U.S. citizenship was conferred by statute (8 U.S.C. 1402), based on birth in Puerto Rico during the territorial period, are entitled constitutionally to all of the same rights as U.S. citizens born or naturalized in the States of the Union or granted citizenship by Congress under separate statute-- particularly if Puerto Rico exercises its right of self-determination in favor of separate nationhood.

The ACLU argues that children born in the new nation of Puerto Rico, to parents one or both of whom have made an election to retain the statutory U.S. citizenship they acquired due to birth in the territory, must have the same eligibility for U.S. citizenship which Congress has provided for children born overseas to parents who are U.S. citizens traveling or living temporarily overseas. The problem with this position is that other foreign countries already exist as a separate sovereign nations, and other foreign countries do not have a population 100% of which have statutory U.S. citizenship conferred by Congress. So allowing children born to U.S. citizen parents in other foreign countries does not create a foreign nation with a population composed entirely by persons with U.S. citizenship.

In contrast, Puerto Rico would be in the process of separating from the U.S. in the event the people vote for independence or free association, and in that case there is a compelling national interest and reasonable basis to end the cycle of conferring U.S. citizenship on people born in what would then be a foreign country of Puerto Rico. Thus, the ACLU is off target in its admirable effort to promote individual rights by proposing to continue creation of a class of statutory U.S. citizens upon petition of parents who themselves had statutory citizenship arising from birth in a territory the population of which would have exercised the right of self-determination in favor of separate nationality. A vote for separate nationality should not be conditional upon or linked to retention of a previous common nationality, and Congress has an interest in preventing impediments to the succession of state process.

The ACLU position is based on the first-impression we all tend to have, which is that all U.S. citizens should enjoy the same rights. However, the very reason Puerto Rico needs to resolve its status is that the U.S. citizens there do not have equal rights with all other citizens. If the majority in Puerto Rico choose separate nationhood, failure to implement that decision will not be in the best interests of the U.S. or the new nation of Puerto Rico. Contrary to what the ACLU has suggested, the election of allegiance for those with statutory citizenship, as well as termination of statutory citizenship rights for those who are born in Puerto Rico after separate sovereignty is established, is imperative if Puerto Ricans are to achieve full sovereignty, nationality and citizenship under the constitution of a new Puerto Rican nation.

As I testified in 1991 before the U.S. Senate while serving as Attorney General, the correct application of the succession of state doctrine, including the requirement for separation of nationality without mass dual citizenship, is consistent with the United States Constitution. A succession of state process such as that contemplated under the provisions of H.R. 856 and S. 472 is one which I would expect to withstand court challenge.

The ACLU report on the House bill's citizenship transition is a contribution to the debate, and its advocacy of individual rights is respected. However, the technical mechanics for the effective termination of U.S. nationality in Puerto Rico must not become the enemy of an effective succession of nationality. The issues raised by the ACLU are matters which must be managed to promote rather than delay an orderly end to the disenfranchisement of Puerto Ricans under the form of government to which they are subject, and to establish a permanent set of civil rights which are constitutionally guaranteed, rather than conferred at the discretion of Congress and under applicable Supreme Court rulings which, contrary to the picture painted by the ACLU, severely limit the rights of territorial citizens.

For under the current U.S. Supreme Court rulings regarding application of the U.S. Constitution and federal law in Puerto Rico, Congress is permitted to treat Puerto Rican born American citizens other than equally with all other U.S. citizens in voting and other important rights, privileges and immunities, as well as federal benefits, programs and services. To suggest that Congress cannot treat persons with statutory citizenship based on birth in Puerto Rico differently than other Americans by terminating U.S. citizenship for person born in Puerto Rico after it becomes a foreign nation, in order to implement the act of self-determination through which the most fundamental rights of all in a democracy can be redeemed through full citizenship in a new and separate nation, is an odd position for the ACLU to adopt or espouse.

The ACLU argument that all U.S. citizens born in Puerto Rico must have the same statutory rights as all other U.S. citizens seems to ignore that Puerto Rican born Americans currently are denied equal statutory and constitutional rights under federal law - including both Acts of Congress and applicable Supreme Court rulings. True, the case of Balzac v. People of Puerto Rico, 258 U.S. 298 (1922) does require the federal government in its actions in unincorporated territories to refrain from measures which abuse "fundamental rights" to due progress and equal protection, but this is a restraint on federal actions as sovereign any time or any place in the world, rather than an effective application of the constitution's political and legal system to produce "equality under the law" for persons under U.S. sovereignty due to birth in Puerto Rico.

For example, under applicable Supreme court rulings equal constitutional rights are denied to Puerto Rican born Americans presently, including a federal right to trial by jury under the Sixth and Seventh Amendments (Dorr v. U.S., 195 U.S. 138 (1904); voting rights in federal elections (U.S. Const. art. II, sec. 1, cl. 3); representation in Congress (U.S. Const. art. I, secs. 2 and 3); and uniformity of duties (U.S. Const. art I, sec. 8, cl. 1). In Harris v. Rosario, 446 U.S. 651 (1980), the U.S. Supreme Court upheld less-than-equal treatment of Puerto Rican born Americans under federal statute law.

Thus, the ACLU complaint about different treatment of Puerto Rican born persons who elect to retain statutory citizenship after Puerto Rico becomes a separate nation must be viewed in the large context of the political status and civil rights of persons born in Puerto Rico as determined by Congress under Article IX of the Treaty of Paris, and as confirmed by the U.S. Supreme Court.

The ACLU implies that it is punitive to require termination of U.S. citizenship and deny dual nationality for persons born in Puerto Rico, or to the children of Puerto Rican born parents who elect continued statutory citizenship after independence or free association is established. To the contrary, Congress could be providing an artificial incentive for Puerto Ricans to vote away what may be their best shot at full U.S. citizenship through statehood by appearing to promise automatic mass dual U.S. citizenship after separate sovereignty is established.

If Puerto Ricans are going to go down the road to separate sovereignty it should not be based on a false hope for perpetual universal dual nationality. The appeal of that false hope is in the illusion that it will enable Congress and the people of Puerto Rico to achieve equality, equity and a permanent status without having to face the difficult choice between integration with the rest of the nation and separate nationhood.

Thus, the ACLU advocacy of preservation of certain individual statutory rights it does not believe should be denied to those with statutory citizenship due to birth in Puerto Rico begs the question of how best to end the abridgment of even more fundamental rights which are denied to Puerto Ricans due to its unincorporated status. The Supreme Court has declined to offer a remedy to this more fundamental problem because it is a political question for Congress under the Territorial Clause. So the real question is whether U.S. citizens born in Puerto Rico want to petition Congress to become full citizens under the federal constitution, or do they want to form themselves into a separate nation.

Neither Congress nor the residents of Puerto Rico can have it both ways, and the longer the advocates of the "have it both ways" models distract the people from their real choices the longer true equal rights will be denied.

The reference in H.R. 856 to Puerto Rican born U.S. citizens is not an ethnic or minority classification as the ACLU suggests. It is a class of citizens defined by their disenfranchisement and constitutionally sanctioned "second class" citizenship under the Territorial Clause and the U.S. Supreme Court rulings which interpret its application. Thus, the U.S. citizenship of persons born in Puerto Rico conferred under 8 U.S.C. 1402 is distinct from that of persons with statutory U.S. citizenship conferred on some other basis and for a different purpose as determined by Congress, such as children born overseas to U.S. citizen parents in foreign countries due to military or other government service, as well as for other private reasons.

So the ACLU approach would seem to favor those with statutory U.S. citizenship who move to the mainland. But the different forms of statutory citizenship for the foreign born and eligibility to apply for citizenship on behalf of alien children were not prescribed by Congress to address the status of persons born in Puerto Rico after it has become a sovereign nation. Congress has an interest in treating persons born in a new nation of Puerto Rico in a manner that is consistent with the succession of state, even if it is different than the way other U.S. citizens are treated under the same statutes.

If the ACLU persuades Congress that persons who elect to continue U.S. statutory citizenship should be treated the same as all other U.S. citizens without any restrictions Congress might prescribe to facilitate the succession of state, Congress could simply decline to accommodate such a complicated scheme and adopt a variation of what happened when the Commonwealth of the Philippines, acquired by the U.S. with Puerto Rico under the Treaty of Paris, became independent in 1946.

Specifically, as in the case of Puerto Ricans under the Foraker Act from 1900 to 1917, those born in the American Commonwealth of the Philippines had U.S. nationality but not a statutory citizenship classification. At the hour for establishment of separate sovereignty under President Truman's Proclamation No. 2695 of July 4, 1946, all persons with U.S. nationality based on birth in the U.S. Commonwealth of the Philippines instantly became aliens under U.S. nationality and immigration law. However, only those who met requirements for residency in the mainland were able to become naturalized U.S. citizens under the 14th Amendment.

In decrying the very thought of disparate treatment of different classes of citizens the ACLU report does not address the fact that citizenship is a subset of nationality. The U.S. Supreme Court upheld the expatriation of those with U.S. nationality based on birth in the Philippines as part of the succession of state in that case, and since citizenship flows from nationality there is no reason to believe Congress could not simply employ the Philippine precedent in the case of Puerto Rican nationhood.

Those born in Puerto Rico who have statutory U.S. citizenship and established residency in the mainland are able to vote and enjoy full benefits of residing in the States of the Union, but their citizenship is of the same statutory nature and was conferred on the same basis as those who have remained in Puerto Rico. So, the Philippine model of transfer of nationality may be the solution for Congress if the mechanics of an election of allegiance can not be worked out without vexatious exceptions that frustrate actual separation of nationality.

In the event of separate sovereignty for Puerto Rico, the correct result of a well-managed succession of state will be that Puerto Rico controls its nationality and citizenship and the United States controls its nationality and citizenship. Those who want to have and enjoy separate Puerto Rican nationality and citizenship should be empowered to do so by voting for that result and convincing a majority of their fellow Puerto Rican born U.S. citizen voters to join them in approving separate sovereignty. However, upon having and enjoying that new nationality and citizenship they should not be allowed to continue to enjoy the statutory U.S. citizenship conferred during the territorial period. An election requirement that precludes automatic dual citizenship is the only way to make the referendum on status an informed choice between valid options and ensure an effective succession of state.

Thus, if Puerto Rico wants to give its nationality and all the rights of citizenship in the nation of Puerto Rico to all U.S. citizens who choose to reside there, including those born in Puerto Rico who elect continued allegiance to the United States, that is Puerto Rico's business. Of course, it is the business of the U.S. if Congress decides to end the special statutory citizenship available upon election of continued allegiance to the U.S. at the moment Puerto Rican citizenship is conferred. Otherwise the entire process is a sham and no actual transfer of nationality and citizenship will result.

The generally liberal U.S. practice regarding dual nationality will not apply in the case of a new nation of Puerto Rico until after completion of the transfer of sovereignty, nationality and citizenship through an effective international succession process in which an election of allegiance requires a choice between U.S. or Puerto Rican citizenship. The U.S. thereafter can treat U.S. citizens who acquire Puerto Rican nationality and citizenship the same way it does U.S. citizens who acquire Irish, Israeli or any other foreign nationality. As long as there is no voluntary or intentional renunciation of U.S. nationality and citizenship, then dual or even multiple citizenship is allowed under Afroyim v. Rusk, 387 U.S. 253 (1967).

However, under Rogers v. Bellei, 401 U.S. 815 (1971), Congress has the authority to regulate the statutory citizenship it creates outside the scope of the 14th Amendment. Congress extended statutory U.S. citizenship to persons born in Puerto Rico to define the status of such persons during the period of U.S. sovereignty in the territory. In the event of a vote for separate sovereignty, there would be a legitimate federal purpose in discontinuing statutory U.S. citizenship and preventing automatic mass dual citizenship in Puerto Rico because that would prevent the succession of sovereignty, nationality and citizenship required to actually establish Puerto Rico as a separate nation.

If Congress decides to treat persons born in Puerto Rico differently than those born in the states, in a way that would be far less a denial of fundamental rights than the discrimination currently allowed by the U.S. Supreme Court as to voting rights and other more basic privileges and immunities, the federal courts can be expected to recognize and respect the legitimate purposes of a policy to make the separation of sovereignty real. The approach embodied in H.R. 856 to accomplish this outcome is reasonably related to that valid purpose. Indeed, if Congress has the constitutional authority to require the election between continued statutory citizenship or Puerto Rican citizenship, it also necessarily has the authority to regulate the statutory citizenship which continues consistent with the election and the purpose for which it was required.

H.R. 856 and S. 472 define clear and realistic choices, and in the event of independence or free association these bills correctly require the termination of U.S. citizenship for persons born in Puerto Rico. However, it may be that Congress should address some of the issues raised by the ACLU consistent with the requirement to preclude mass dual citizenship by operation of the election of allegiance process itself. For example, Congress might want to take a second look at the problem of persons born in a third country outside both the U.S. and Puerto Rico of a Puerto Rican born parent with statutory U.S. citizenship due to election of continued allegiance to the U.S. after separate sovereignty in established. This may need to be addressed in the transition phase, but the class of affected persons will be small and the statutory revision required to accommodate that problem is minor and of a technical nature.

Of course, if Congress decided to extend to Puerto Rican born U.S. citizens the statutory ability to petition for their children born in Puerto Rico to have statutory U.S. citizenship upon meeting residency requirements in the mainland, that could be accomplished with conforming amendments under the transition process contemplated by H.R. 856. It is suspected that once the commonwealth/free association party understands that even under the ACLU proposals children born in Puerto Rico after separate sovereignty is established will be aliens whose ability to acquire U.S. citizenship will be subject to residency requirements, this will no longer be viewed as a great boon to the "have it both ways" advocates.


Puerto Rico can become fully foreign, or it can become fully domestic. It can never become fully or permanently foreign in a domestic sense, or vice versa. It must be one way or the other. The contradictions of the current status must be resolved one way or the other.

Even if the residents of Puerto Rico were to decide that the vagaries of the current status are acceptable, as the other party to the present relationship the U.S. must decide if maintaining a large population of disenfranchised citizens is consistent with the national interest in the century ahead.

The time has passed for dithering over the sometimes creative but inevitably untenable "have it both ways" formulas that are regularly proposed to resolve the status question without the inconvenience of painful choices Thus, if the title of this conference was proposed or adopted with a view that somehow these contradictions can be reconciled by creating a nation-within-a-nation -- in which tokenism sovereignty and federal programs are offered as "compensation" for permanent disenfranchisement -- in my view such notions are at odds with the principles of equality under the law and liberty through the rule of law.

If there is to be free and informed self-determination in Puerto Rico, if full and unfettered freedom is to thrive in American's oldest large and populous jurisdiction, the voters need to know what is real and what is not real. To delay and encumber the self-determination of the people of Puerto Rico, while the intelligentsia debate nuances of implausible theories of autonomy, is a form of creeping tyranny that can no longer be tolerated at this stage in the evolution of Puerto Rico's political culture, as well as that of the nation as a whole.


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