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INTRODUCTION
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.
PUERTO RICO IN THE SECOND CENTURY OF U.S. SOVEREIGNTY
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.
"COMMONWEALTH" TERRITORIAL STATUS -- SEPARATISM
IN AMERICA
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.
BUDGET IMPACT OF TERRITORIAL STATUS
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.
SORTING OUT THE ISSUES
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.
THE "HAVE IT BOTH WAYS" THEORY HAS FAILED -- BUT
NOT FOR LACK OF TRYING FOR FORTY YEARS
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.
CONCLUSION
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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