Primer on the legal history of Puerto Rico

The relationship between Puerto Rico  and the United States  began  – to use business parlance-  as a  hostile takeover.  After skirmishes with Spanish ships,  the U.S.  attacked  San Juan on May 12, 1898.  It bombarded the city with ten ships;  followed by naval blockade. On July 25, 1898, it  led an invasion of the south of the island  with 1,300 infantry soldiers.  The U.S. offensive was met by Puerto Rican-Spanish soldiers  along different fronts.  The short inconclusive war ended on August 13- after only three months –  when notice came that the US and Spain had signed an armistice.

At the time of the invasion, Puerto Rico was following a path of self-government that many thought would lead to eventual independence from Spain. The U.S. invasion changed these plans forever with the 1898 Treaty of Paris that ended the  War.  The people of Puerto Rico did not participate in the treaty negotiations nor had a say as on their future.  Rather, Spain and the US decided by themselves the fate of  Puerto Rico for the next hundred years; and counting.

As part of the Treaty   Spain ceded to the U.S.  the Island and “the civil rights and political status of its  inhabitants”.    See, Article IX of the Treaty.  Ever since, the U.S. has been ruling Puerto Rico under Article IV, Section 3, Clause 2 of its  Constitution, popularly refereed to as the Territory Clause that  gives Congress absolute power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”

Under the Clause, Congress can ‘dispose of’  and make whatever rules it deems necessary to govern  Puerto Rico.  Congress has yet to dispose of the Island (although many have suggested that the U.S.  could arguably sell the Island to another country)  and it has  enacted legislation allowing Puerto Rico increase authority over local matters and now  it governs itself much like a state.  However, it is a possession of the United States, P.R.  does not enjoy the sovereignty that a state of the Union has.  Thus it is not protected by the U.S. Constitution as states are (no zone of reserved sovereignty  beyond the reach of Congress); neither does it enjoy  representation in the Senate or the House except for a Resident Commissioner  with very limited powers (may speak but not vote for final passage of  legislation).     Besides the federal courts,  the  government of Puerto Rico has no power  to challenge unilateral actions by  the U.S.

The landmark laws include:

Foraker Act 1900-  Substituted rule by U.S. military commanders and  created a limited civilian government  headed by a U.S. appointed governor.  It included the following key provisions:

• San Juan was designated the Capital and the seat of government
•  All inhabitants were deemed  to be citizens of  Porto Rico, and  “entitled to the protection of the United States.”
• The inhabitants “together with such citizens of the United  States as may reside in Porto Rico, shall constitute a body politic under the name of The  People of Porto Rico, with governmental powers as hereinafter conferred, and with power  to sue and be sued as such.”
•  That the laws . . . of Porto Rico now in force shall continue in full  force . . ., except as . . . amended, . . .or as altered or  modified by military orders and decrees in force when this Act shall take effect, and so far as the same are not inconsistent or in conflict with the statutory laws of the United  States not locally inapplicable, or the provisions hereof, until altered, amended, or  repealed by the legislative authority hereinafter provided for Porto Rico or by Act of  Congress of the United States.”
•  The   coins of Porto Rico known as the peso was to be redeemed  the  rate of “sixty cents in the coins of the United States for one peso of Porto Rican coin.”
• “The coasting trade between Porto Rico and the  United States shall be regulated in accordance with the provisions of law applicable to such trade between any two great coasting districts of the United States.”
• “That the statutory laws of the United States not locally inapplicable, except as hereinbefore or hereinafter otherwise provided, shall have the same force and effect in
  Porto Rico as in the United States, except the internal-revenue laws, which, in view of the  provisions of section three, shall not have force and effect in Porto Rico.”
• Executive Powers:  “The Governor of Porto Rico to be appointed by the President.  “He may grant pardons and reprieves, and remit fines and forfeitures for  offenses against the laws of Porto Rico, and respites for offenses against the laws of the  United States, until the decision of the President can be ascertained; he shall commission  all officers that he may be authorized to appoint, and may veto any legislation enacted, as  hereinafter provided; he shall be the commander in chief of the militia, and shall at all  times faithfully execute the laws, and he shall in that behalf have all the powers of  governors of the Territories of the United States that are not locally inapplicable
•  Legislative Powers: Local legislative powers  granted were vested in “The Legislative Assembly Porto Rico”,   consisting of two houses; one the executive council (non-elected/appointed by the President of the US) and the other a house of delegates, to consist of thirty-five members elected  biennially.
• Judicial Powers:  That the judicial power shall be vested in the courts and tribunals of Porto Rico as already established and now in operation.  The law also provided for  the creation of a  federal  judicial district to be called “the district of  Porto Rico.”  The President, with the  consent of the Senate,  would appoint a district judge, a district attorney, and a marshal , each for a term  of four years, unless sooner removed by the President.” All pleadings and proceedings in said court were to be  conducted in  English.
• That writs of error and appeals from the final decisions of the supreme court of Porto Rico and the district court of the United States shall be allowed and may be taken
  to the Supreme Court of the United States in the same manner and under the same regulations and in the same cases as from the supreme courts of the Territories of the United States

Jones Act of 1917– Extending the US citizenship to  residents of Puerto Rico (all persons born in Puerto Rico after 1941 are considered natural-born citizens of the US).  The law also:

• Separated the Executive, Judicial, and Legislative branches of the government. The two houses became a Senate consisting of 19 members and a 39-member House of Representatives.
• The Governor and the President of the United States had the power to veto any law passed by the legislature. Also, the United States Congress had the power to stop any action taken by the legislature in Puerto Rico.
• The U.S. maintained control over fiscal and economic matters and exercised authority over mail services, immigration, defense and other basic governmental matters.
• Provided additional  civil rights to the individual.
• Authorized the election of a Resident Commissioner from Puerto Rico to the U.S. Congress.

P.L 80-362  1947–  Federal legislation to allow popular election of Puerto Rico’s governor.

P.L. 81-600 1950– Federal  legislation  authorizing Puerto Rico to hold a constitutional convention to establish a  republican form of government with a bill of rights.   In  1952, the people of Puerto Rico approved the process via a referendum; then elected delegates to a local constitutional convention  who drafted a document that was ratified by the voters  and later submitted to Congress for approval.   Congress  modified the   constitution and approved the amended version in  1952.  The approved documents required three changes to the Constitution which were later adopted and approved by the Convention and the people.

The constitution of 1952 modified aspects of civil government for the islands; but did not change the fundamental relationship between Puerto Rico and the United States- one determined by the Territorial Clause of the U.S. Constitution.  Congress  continued the provisions of the Jones Act  and ceded none of its own plenary authority over the island:

For example, the Senate committee report accompanying S. 3336, the bill that became P.L. 81-600, was unambiguous on this point: “This measure is designed to complete the full measure of local self-government in the islands by enabling the 2¼ million American citizens there to express their will and to create their own territorial government. [Emphasis added]. S.Rept. 81-1779, p. 2. “This measure would not change Puerto Rico’s fundamental political, social, and economic relationship to the United States.” Ibid., p. 3. “S. 3336 is not a statehood bill. Nor is it an independence bill. It does not commit the Congress, either expressly or by implication to take any action whatever in respect to either. It in no way precludes future determination by future Congresses of the political status of Puerto Rico.” Ibid., p. 4. In this regard, former Attorney General Richard Thornburgh said in an interview, “Although Congress made approval of the local constitution by referendum a condition of its approval of the constitution, the local vote was given legal effect only by federal law, and the constitution entered into force only as allowed by federal law. Consequently, the local constitution does not create or define a separate constitutional sovereignty or vested right to the current status for the residents of the territory or the local government.”

Source: Political Status of Puerto Rico: Options for Congress R. Sam Garrett Specialist in American National Government, June 7, 2011

Current debate settles around the issue of what is the actual relationship with the U.S. rather than finding consensus on the future of the  relationship. From the onset, this gets complicated since the government has two distinct names with equally distinct connotations.

In Spanish the official name of the government is  Estado Libre Asociado de Puerto Rico, which translates to Free Associated State of Puerto Rico; but the official name in English is the Commonwealth of Puerto Rico; a non-descriptive name given that semi- independent  former colonies and even some states of the Union, like Massachusetts,  include  the word ‘Commonwealth’  as part of their official name.

Parties in P.R. are mostly  defined by their  position on relations with the U.S.  The party supportive of the current  relation insists that there was a  permanent compact initiated  in 1952 and they seek to enhance compact with more powers; some say akin to  a sovereign commonwealth. This party affirms the concept of the Puerto Rican nation. A homeland with separate nationality and  historical differences. This position is apparently not shared with all members of the party; some whom prefer firmer political and cultural ties with the U.S.  Many have argued that it is not possible under the U.S. Constitution to have a permanent status since this is only granted to states. So, the U.S. would have to amend its Constitution to provide for such a special arrangement; something very unlikely to happen.

The two other main political parties (Pro-Statehood and Pro-Independence) are more straight forward on their take of the current situation.  They insist Puerto Rico has been a colony since the invasion and while it has enjoyed certain local governance,  it is under full control by the U.S. without proper rights and protections; and that it needs to define itself- either as a  sovereign nation or as full fledged state of the  U.S.

This endless debate regarding the true nature of our relationship has made it difficult for the people  to make informed decisions.  Given that it was the US that enabled the current setup, the U.S. should  tell the people of Puerto Rico in unequivocal terms what kind of political relation do we really enjoy.  Then we will earn what everyone knows and many are ready to admit- that we are an island  governed by Congress pursuant to the Territory Clause of the U.S. Constitution, and that the Supremacy Clause guarantees that federal law ultimately controls Puerto Rico.   For the U.S., this inconvenient truth may be best left unsettled.

Currently, residents of Puerto Rico participate in the presidential nominating process but do not vote in general elections. A plebiscite will be conducted during 2012 and may change things. See: Pedro Pierluisi, Puerto Rico Status Referendum is Historic, JURIST – Hotline, Feb. 17, 2012, http://jurist.org/hotline/2012/02/pedro-pierluisi-referendum.php.