Editor’s Note: This is the first of two columns about the history of Puerto Rico’s legal status within the United States and Puerto Rico’s alternatives to its current legal status, including statehood, independence and free association.
opinion@dailylobo.com
In a Nov. 6 referendum, 54 percent of Puerto Ricans voted no on the question of whether “Puerto Rico should continue to have its present form of territorial status.” Given the optimistic yet cautious results of the ballot item, many people have begun speculating about what it would mean for the island, as well as the entire United States, if Puerto Rico were actually to become the 51st state in the union, the first state to be admitted in more than 50 years. Setting aside the controversial elements of the ballot item’s results, let’s examine what statehood for Puerto Rico might actually entail.
Since its acquisition in 1898 during the Spanish-American War, Puerto Rico’s legal status has been in flux. From the beginning, the island was considered an unincorporated territory of the United States, like the Philippines. Its residents were not considered citizens and did not enjoy any constitutional rights beyond protections the Supreme Court and federal appeals courts gave them in rulings.
The first re-examination of Puerto Rico’s status came in the mid-1910s, and Puerto Ricans were given U.S. citizenship in 1917. After World War II, the global decolonization movement — which also compelled the United States to grant the Philippines its independence in 1946 — caused the United States to once again consider Puerto Rico’s legal status.
In 1950, Congress authorized a constitutional convention in Puerto Rico. Two years later, after congressional and presidential approval, Puerto Ricans formally enacted their own local government. However, Puerto Rico was still considered an unincorporated U.S. territory, and as such, it was granted neither representation in Congress — beyond a nonvoting resident commissioner in the House — nor presidential electors in the Electoral College. However, Puerto Ricans still pay federal payroll taxes, paying into such programs as Social Security and Medicare.
Because it is an unincorporated territory with its own constitution, Puerto Rico has enjoyed local autonomy nearly equivalent to that of the states and more autonomy than other U.S. territories. However, Congress and the president still retain full legal control over the island through Article IV of the Constitution and federal law.
On the other hand, though federal law applies to Puerto Rico, Puerto Ricans don’t receive all the protections granted to U.S. citizens in the 50 states by the Constitution and Bill of Rights.
The Supreme Court found in a series of rulings known as the Insular Cases that because Puerto Rico was an unincorporated territory, only “essential” portions of the Bill of Rights and the Constitution applied to the island, not those documents in their entirety.
In the past century, only certain rights have been specifically granted to Puerto Ricans via those Supreme Court rulings, such as First, Fourth and Fifth Amendment protections and the 14th Amendment due process and equal-protection guarantees.
In the years after Puerto Rico’s constitutional ratification and the solidification of its status as a U.S. territory, the island has undergone several reviews of its legal status. Prior to this year’s ballot item, there have been three ballot items — in 1967, 1993 and 1998 — and a constitutional amendment referendum in 1991 that have sought to review and possibly change the island’s legal status. In all four cases, Puerto Ricans voted by a slim margin to maintain their current status instead of seeking full statehood.
The largest difference was in the 1967 ballot item, when 60 percent of voters upheld Puerto Rico’s current commonwealth status while 39 percent favored statehood. Independence has never garnered double-digit support in any of these four votes.
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It is important to note, especially considering this most recent, potentially groundbreaking vote, that such ballot items are not legally binding, and Congress is entirely free to ignore Puerto Ricans’ sentiments if it so chooses. At the same time, however, Congress has historically indicated through legislation that it supports following the wishes of the Puerto Rican people, so the scrutiny that the unprecedented results of the 2012 ballot item are undergoing is warranted.
Given Puerto Rico’s turbulent legal history, it might be ultimately beneficial for it to become a state, if only so Puerto Ricans can enjoy the full legal protections, privileges and duties that U.S. citizens in the 50 states receive. On the other hand, an arrangement for the island such as a compact of free association could also be positive, because it would be a step toward independence, but not independence outright, which the voting results suggest the vast majority of Puerto Ricans would reject.
Such a compact would allow Puerto Rico to transition to full independence on firmer footing and in a slow, measured manner. My next column will analyze these positions, which were the two options on this month’s ballot item that gathered the most support, and offer a more in-depth look at the option of full independence.
