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Defining Moment for Puerto Rico

by Dick Thornburgh

November 19, 1998
©Copyright 1998, The Washington Post Co. All Rights Reserved

Apparently tired of waiting for clear direction from Congress, the people of Puerto Rico have used the tools provided by their own local constitution to schedule a vote for Dec. 13 on the status of the island.

A robust debate now is taking place in Puerto Rico , and the supporters of each status option -- commonwealth, statehood or independence -- are right to make their best case to the voters. But despite a clear record that has been created over the years in exhaustive congressional hearings, a great many misconceptions persist about what would happen under each of these options. As I told Congress in 1991, when I testified as U.S. attorney general on this subject, the choices must be clearly and realistically defined if there is to be informed self - determination in Puerto Rico, the home of 3.8 million U.S. citizens.

For example, some argue that Congress has "redefined" the current commonwealth status of the island by failing to recognize that Puerto Rico has a separate national identity apart from that of the United States. In fact, as a commonwealth Puerto Rico is at present subject exclusively to the national sovereignty of the United States and has no separate nationality in any legal or constitutional sense.

It is quite understandable that Puerto Ricans seek to preserve a cultural sense of identity without separating politically from U.S. national sovereignty. It should be noted, though, that under commonwealth status Congress has greater discretion to regulate Puerto Rico 's affairs by federal law (e.g., current or additional English language requirements) than if Puerto Rico was a state. If U.S. national sovereignty continues, it is only as a state that Puerto Rico will have permanent 10th Amendment powers over its non-federal affairs, as well as voting power in Congress.

Certain advocates of commonwealth status also make the misleading argument that the commonwealth model for a political economy is based on "fiscal autonomy." This term has no constitutional basis and serves only to conceal the presumption that American taxpayers will continue to subsidize Puerto Rico 's current tax-haven status . Yet no one can say how long Congress will continue to spend $10 billion annually in Puerto Rico before phasing in federal taxation and the IRS.

The bipartisan decision by Washington in 1996 to eliminate the Puerto Rico corporate tax exemption -- a pillar of this so-called "fiscal autonomy" ­ demonstrated that Congress can unilaterally alter federal tax policy affecting the commonwealth. Because commonwealth status is defined by federal statutes rather than the Constitution, any autonomy -- fiscal or political -- is at the pleasure of Congress.

Finally, commonwealth supporters still assert that U.S. citizenship for those in the territory is a "constitutional right," which Congress has no power to terminate. Clarifying this emotional issue is difficult but essential to an informed vote.

First, the current citizenship of persons born in Puerto Rico is granted by statute and is not fully protected by the U.S. Constitution itself, in contrast to the citizenship of people born in the states. That which Congress granted by statute to some it canwithhold by statute from others in the future.

While the statutory U.S. citizens of Puerto Rico enjoy some fundamental federal legal rights (e.g., due process of law), other rights are denied (e.g., equal voting rights, federal jury trials). Conferral of citizenship by statute is a matter of policy, not a legally protected right, and Congress has the discretion to alter or terminate any such statutory policy.

For example, should Puerto Ricans democratically express a clear desire for a separate nationality, Congress could end U.S. citizenship and define a separate citizenship of the territory as part of the transition from the current status . Indeed, Congress imposed such a separate territorial citizenship in Puerto Rico from 1900 to 1917. Congress did the same in the Philippines while it was still a U.S. commonwealth prior to its independence in 1946.

As long as Puerto Rico remains a commonwealth, Congress remains sovereign over Puerto Rico, and no policy is permanent because no Congress can bind a future Congress. That is one reason statehood supporters seek full representation in Congress and sovereignty under the 10th Amendment.

Supporters of separate national sovereignty argue that relations with the United States should be by treaty between two separate sovereigns. Advocates of each of these two status options seek to avoid the imposition of laws made by a Congress in which Puerto Ricans have no voting representation.

If voters in Puerto Rico are to make an informed choice as to whether they should move to statehood or independence, they need to have an honest picture of their current status . Unfortunately, those who for years have touted the nation-within-a-nation concept decry any realistic definition of commonwealth status as "pro- statehood ." They define commonwealth as a mythical "super- status " with the benefits of both statehood and independence but the full burdens of neither.

The Dec. 13 vote will be just a first step for Puerto Rico . No matter what the results are, one thing will be clear to Congress when it reconvenes: that the problem of Puerto Rico 's uncertain and unresolved status will not go away.

The writer, a former U.S. attorney general, is a constitutional consultant for the Citizen's Educational Foundation, a Puerto - Rico based civic group dedicated to self - determination for island residents.

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