White Paper:
THE PROMISE OF CITIZENSHIP

(07/21/98, Copyright 1998 Puerto Rico Herald)

        Confusion and misinformation about the legal nature of U.S. citizenship for persons born in Puerto Rico persist at the expense of informed self-determination for Puerto Rico. As a result of how this issue was discussed in the hearings, I am more convinced than ever that the bill enacted to authorize a referendum in Puerto Rico must address the subject of citizenship under all three status options.

        I know some argue that the threshold question is sovereignty, and not citizenship. However, the commonwealth party has put Congress on notice that it does not recognize the supremacy of Federal law or the sovereign powers of Congress under Article IV, Section 3, Clause 2 of the Constitution. Thus, the commonwealth party may be quite willing to simply agree to disagree on the issue of sovereignty under commonwealth.

        However, the one reality the commonwealth party cannot ignore or evade is that commonwealth does not secure the permanent union and irrevocable U.S. citizenship promised to the people in the 1993 ballot definition of that status. If they can create enough hysteria about the notion that someone is proposing to strip U.S. citizenship from those who already have it, they hope to scare Congress away from addressing the issue at all.

        Then they will be free to claim that commonwealth gives Puerto Rico the equivalent of the 10th Amendment without the supremacy clause -- with 14th Amendment U.S. citizenship regardless of where sovereignty may or may not repose. That is what they want, but its not constitutionally permissible, and Congress needs to make that clear to the people in Puerto Rico.

        If a bill that tells the truth causes voters to favor statehood, that does not make it a statehood bill. However, a bill that does not tell the truth about commonwealth in order to appease the commonwealth party is truly a commonwealth bill.

        I am afraid we will be repeating the mistakes of 1952 if we do not inform the people of Puerto Rico that individual U.S. citizenship is protected under commonwealth for the individual to whom it is already granted against arbitrary loss, regulation or restriction, but that the conferral of U.S. citizenship in the future is discretionary and could be withdrawn.

        It does not make me happy to say that, indeed it is painful. However, contrary to what some have suggested, our insistence that this must be addressed is not a scare tactic to induce a statehood vote. Rather, it is because the commonwealth party has misinformed the residents of Puerto Rico that Congress can never end U.S. citizenship for people born in Puerto Rico, and that is not true.

        When an untruth has been told about what Congress can or cannot do, Congress has a responsibility to correct the public record. We need a strong statement of Republican policy based on the truth about this issue.

        On this most critical of all issues, some witnesses articulated a startling doctrine in the July 15 hearing regarding S. 472. In essence, they argued that Puerto Ricans should be assured that if they give away their best chance to become full citizens under the U.S. Constitution, they will at least be able to preserve the current limited U.S. citizenship in the future. This doctrine would have us believe that Puerto Rico can carve out a separate local sovereignty under which to practice cultural separatism, but as a revocable license from Congress retain and enjoy U.S. citizenship forever on the same basis we do today.

        The proponents of this view argue that even if there is a constitutional or legal power to stop conferral of U.S. citizenship on people born in Puerto Rico, or to otherwise restrict U.S. citizenship rights in Puerto Rico, that will never happen because the U.S. made a political commitment not to alter the current political relationship or citizenship when the commonwealth constitution was approved in 1952. This "promise" also was described as a moral commitment, and it was proposed that Puerto Ricans should be given some reassurance by provisions to be added to the status legislation that citizenship will never be taken away from the commonwealth - as long as that assurance is given in a "legally accurate" manner.

        This is Orwellian double-speak. Moral commitments and political promises can't be enforced against the Federal government in Federal court, constitutional rights can be! It is the ultimate form of colonialism to promise to respect "rights", but then carefully insist that as a matter of law those rights are not guaranteed. That means they are not rights at all. Who are we kidding here?

        Under the U.S. Constitution, the real promise of citizenship and the blessings of liberty are secured through the rights reserved to the people and the limited power granted to the government. In the world of commonwealth, the powers of the government remain plenary without the limitations of Federal power enjoyed by the states, but the government merely agrees not to use its powers. This makes everyone feel reassured, right? What happens if the government changes its mind at some time in the future?

        Witnesses also stated that the findings in H.R. 856 and S. 472 are too "subjective", and should be deleted because it is "stirring things up" down in the territory. It was because of years of congressional acquiescence in the subjective theory of the permanence of commonwealth that the findings in H.R. 856 and S. 472 were necessary. For example, the 1990 House bill on Puerto Rico status allowed each party in Puerto Rico to pretend that its subjective theory of Puerto Rico's status was what Congress intended, while no objective definition of status options was included in the legislation.

        If the findings in H.R. 857 or S. 472 are controversial it is because they tell the truth after years of ambiguity and deception. The findings might not be necessary if Congress had been clear on status issues in the past, but the S. 472 findings are far more accurate then any previous Congressional findings regarding Puerto Rico. Even if the final bill is simplified and the findings are modified, the debate over the findings has educated Congress and the public in Puerto Rico in the objective theory of territorial policies -- based on the objective truth that Congress retains plenary power to alter our status without our consent. We have permission of Congress to be U.S. citizens, not a right under the Constitution.

        The people of Puerto Rico should not feel reassured about citizenship because the subjective intention and state of mind of the current members of Congress is that conferral of U.S. citizenship by statute should continue. That is not objective, that is the most subjective possible theory of the powers of Congress over territories.

        An objective analysis is that if Congress has the power and discretion to take away a privilege or a benefit, then that privilege or benefit is not secure against Federal regulation, restriction or elimination. Since Congress cannot keep a promise not to exercise its powers in a political matter such as this, it is not moral to make such a promise. It is not only misleading, but it is immoral to encourage people to believe they can rely on a political promise for which there is no accountability.

        Yet, it is urged that instead of full citizenship with guaranteed rights, Puerto Ricans should be content to trust our benevolent benefactors in Washington now and in the future to do what is morally right. If the founders of our republic had taken that approach, we would not have a Bill of Rights and the United States would not be the nation of individual liberties that it has become.

        Ask the U.S. citizens of Guam, who had to obtain entry and exit permits under Federal authority to come and go from that territory until 1964, if the Federal government can be trusted to use its plenary and discretionary powers in a manner consistent with the promise of U.S. citizenship. Where will those making "moral" promises be in 25 years if there is a national emergency that results in restrictions on travel from Puerto Rico to the mainland?

        There was no moral commitment made by the U.S. in 1952, there was an amoral accommodation of competing interests in which the fundamental values and principles of our nation's heritage were sacrificed on the alter of political expediency. The myth of government by consent for a territory under the sovereignty of Congress was peddled to Puerto Rico in 1952, again to the commonwealth of the Northern Mariana Islands in 1976.

        Now, in 1994 the U.S. Justice Department has issued a legal opinion stating that it had been wrong in allowing the doctrine of mutual consent to be included in territorial status documents because it is legally unenforceable and not binding on a future Congress. That Department of Justice memo was included in the record of the July 14 Senate hearing by Puerto Rico Attorney General Jose A. Fuentes-Agostini.

        If it is proposed that Puerto Rico should not worry because the U.S. has decided to honor mutual consent even thought it is not constitutionally enforceable, that does not even begin to reassure anyone who understands the powers of government. The idea that the People of Puerto Rico should cast a ballot in a status referendum sponsored by Congress, based on the idea that territories should trust Congress to honor mutual consent doctrines that are not legally or constitutionally enforceable, is incompatible with the principles of limited government and the rule of law.

        Where will we go to redeem the promises we hear today in 25 years if Congress determines that statehood is no longer an option for Puerto Rico? What do we do if Congress determines, as well it might, that it is not in the national interest to continue to confer U.S. citizenship on an increasingly populous class of U.S. citizens who are politically disenfranchised because they were born and live in a territory, but don't want to integrate with the nation as a whole?

        Some may be pleased if that happens because those against statehood know a Congressional decision to eliminate statehood as an option would limit the right of self-determination for the people of Puerto Rico, by reducing their options to accepting continued commonwealth under the sovereignty of Congress or seeking separate sovereignty. Retention of U.S. citizenship under separate sovereignty then will be even more unrealistic than it is now.

Recognizing this, some now argue that free association will allow Puerto Rico to be a sovereign nation but retain U.S. citizenship. They want to practice cultural separation but retain the current benefits of union and citizenship.

        In the U.S. constitutional process, however, that means free association is outside U.S. sovereignty. Conferral of U.S. citizenship on the people of a territory outside U.S. sovereignty is not politically realistic, but even if it were it also would be terminable at will and not binding on a future Congress.

        No one is suggesting that Congress is going to take away the current U.S. citizenship. The problem is that Puerto Ricans want their important personal rights to be just - rights not permission. The problem is that commonwealth supporters are telling the public that commonwealth secures permanent union and U.S. citizenship for all future generations.

        Thus, I believe Congress needs to speak directly to the people of Puerto Rico by requiring definitions consistent with United States law. Then we can turn to the real business at hand in Puerto Rico, which is informed self-determination.

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