Last month, the Puerto Rican people went to the polls to make a remarkable political choice. There were three candidates: become the 51st state, become an independent nation, or remain a territory with no voting representation in Congress.
The voters chose statehood, a development met with a shrug by most mainland politicians and newspapers. Those with any interest had already declared the vote symbolic. Only Congress can grant statehood, the conventional wisdom declared, and that’s not going to happen.
And yet international law, the U.S.’s post-WWII promises of self-governance for Puerto Rico, and perhaps even constitutional law all suggest that Congress might not have the legal authority to deny Puerto Rico’s choices.
Puerto Rico is in financial distress. It has more than $100 billion in debts and shows no signs of being able to pay. Its lack of statehood and Congressional representation have contributed to this condition. No voting members of Congress have incentive to demand financial assistance for its people, nor — as a legal matter — can Puerto Rico use the federal bankruptcy mechanisms available to states.
Given that context, it is no surprise that 97 percent of the voters chose the statehood option. What may be surprising though, is that only a quarter of eligible voters showed up at the ballot box.
The press reported a number of possible reasons for the poor turnout, including that many assumed the vote was pointless. One might very well wonder what incentive the current Republican Congress has to grant statehood to a territory that would likely bring with it Democratic representatives and a $100 billion debt. In the words of one U.S. Congressman (of Puerto Rican descent), “Congress won’t do anything.”
After all, the Constitution gives Congress power over the admission of new states, and also broad authority over “territories” like Puerto Rico. A century ago, in a series of infamous decisions known as “the Insular Cases,” the U.S. Supreme Court determined that Puerto Rico was an “unincorporated territory.”
The Court described Puerto Rico as belonging to the U.S. but not a part of it, meaning that Congress got to determine its fate without addressing the constitutional rights claimed by other U.S. citizens. Those cases, and the undisguised racism that runs through them, are an embarrassment — the kind of doctrine that, in most other areas of constitutional law, the Supreme Court has corrected.
If the Insular Cases are relegated to the constitutional trash heap along with Plessy v. Ferguson and the rest, then other sources of law might provide altogether different lessons about the significance of Puerto Rico’s vote.
Contemporary international law suggests that former colonies like Puerto Rico have a right to “self-determination”— the freedom to choose their political affiliation. Typically, this has been viewed as the right to exit from the grasp of a former imperial power. That was, after all, the relevant right for peoples seeking to escape situations of oppression.
Today, however, there are lessened opportunities for oppression and significant economic benefits to be gained from remaining part of the far richer mainland. The right of self-determination could also mean that former colonies can decide to pull closer, rather than exiting. Why should self-determination work in only one direction?
One not need resort to general principles of international law, however, because the United States itself has effectively already promised self-governance to the people of Puerto Rico.
In the post-World War II era, the U.S., among others, pushed former imperial powers to grant their former colonies independence or more fully incorporate them. The U.S. had already divested itself of the Philippines. But in keeping Puerto Rico, the U.S. represented to the United Nations that Puerto Rico had transitioned to full equality, with self-governance. This was accomplished through the creation of an official “compact” whereby Puerto Rico, adopted its own constitution and elected its own governor and legislators. The move to full statehood — if the people of Puerto Rico want it—is a natural extension of that process. Given the promise of self-governance made to both Puerto Rico and the international community in 1952, disregard of a vote for statehood is a breach of a promise
As a political matter, Congress has little incentive to grant statehood to Puerto Rico. But if it wants to respect international law and the promises the United States has already made, Congress may have little choice.
Joseph Blocher and Mitu Gulati are law professors at Duke University. A fuller articulation of their research on Puerto Rico’s current status is available here.
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