As the Mad Hatter in Lewis Carrol’s Alice in Wonderland reminds us, how we name things is an arbitrary exercise and codifies linguistic conventions.
Behind these linguistic conventions, of course, are political, economical and social interests and traditions which compete among themselves — at times violently — to shape the manner in which we understand and come to terms with the world around us.
This competition frames all legal reasoning and classifications. How we define criminal behavior, how we define terms in contracts, or how we interpret and apply legal principles or standards in a given set of circumstances, is the ghost in the machine of the rule of law.
{mosads}It is within this context that we need to approach the issue of Puerto Rico’s political and legal relationship to the United States.
Puerto Rico is a territory subject to the plenary powers of Congress through the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) in 2016. This created an oversight board, seriously curtailing what little self-government the Puerto Rico had up to that moment.
Critics argue PROMESA is a throwback to the colonial regime of the Foraker Act of 1900. Since 1898 Puerto Rico has been an unincorporated territory as defined by the United States Supreme Court, which deprives American citizens in Puerto Rico of their full constitutional rights.
The racially charged category “unincorporated territory” is at the heart of the disenfranchisement of Puerto Rico. Perhaps the best current example of this disenfranchisement is the 2017 Tax Reform which classifies Puerto Rico as foreign jurisdiction, where the government of Puerto Rico was sidelined as a mere supplicant without voting rights in Congress.
The return of the unadulterated unincorporated territory raises the legitimate criticism that the United States is renewing its early 20th century colonial project. It should be noted that between 1952 and 2016 the United States argued before the United Nations that the Commonwealth of Puerto Rico had attained some level of self-government, which excluded it from the list of colonial possessions.
Whether the territory of Puerto Rico is a colony as understood in current international law is a question that needs to be asked and answered by the United States government, specifically by Congress.
To characterize Puerto Rico’s relationship to the United States as an exercise in colonialism is to contextualize it within the colonial experience of the European expansion in the last 500 years. In its contemporary usage the term “colony” implies the illegitimate political subordination, exploitation and oppression of a people by foreign power.
This understanding reaches its broadest legal expression in the United Nations 1960’s Resolution 1514 condemning colonialism and recognizing the right to liberty and self-determination by all peoples. For Puerto Rico, the creation of the commonwealth and the ratification of its Constitution by Congress in 1952, and the political hegemony of the pro-territory Popular Democratic Party for close to three decades, has been for many an illusory narrative of self-determination. This illusion came to an end in 2016 with the Supreme Court’s ruling in Commonwealth of Puerto Rico v. Sanchez Valle, Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust and PROMESA.
For the United States, its territorial history since the Spanish-American War has been at odds with previous history. Its acquisition by the Treaty of Paris of 1898 of Puerto Rico, the Phillipines and Guam, challenged its self-perception as a democracy with no colonial aspirations. Or as Supreme Court Justice Harlan eloquently stated in his dissent in Downes v Bidwell (1901): “The idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces — the people inhabiting them to enjoy such rights as Congress chooses to accord them — is wholly inconsistent with the spirit and genius as well as with the words of the Constitution.”
“Territory” and “colony” are political and legal terms that inhabit different legal discursive universes. How we frame the question of the United States’ relationship to Puerto Rico, either under the Constitution or under international law, responds to how we perceive the people of Puerto Rico, either as a foreign polity or as part of the people of the United States.
It is perfectly understandable why those that favor independence insist in characterizing our political relationship as colonial. For this electoral minority, the politics of identity is a matter of collective sovereignty, at the expense of individual rights of course.
For the immense majority of Puerto Ricans there is no contradiction with also being American. Puerto Ricans have been American citizens since 1917 and have fought and died in all wars since World War I, and more than half of the population has made their lives in the mainland.
Contrary to the nativist pronouncements by some politicians, our contemporary history is inextricably intertwined with the United States.
Congress conceptual confusion with regards to Puerto Rico’s political status was on display during a recent vote on the federal budget extension bill. Due to the efforts of Speaker Paul Ryan (R-Wis.) and Sen. Marco Rubio (R- Fla.), among others, the budget bill included close to $18 billion in assignments for Puerto Rico to assist in the process of reconstruction after the devastation caused by hurricanes Irma and María, and to shore up the failing health reform program.
This from the same congressional delegation that two months earlier had classified Puerto Rico as a foreign jurisdiction. Within the context of the overall budget, of course, these assignments were only a small portion and hardly decisive for many. The Democratic Party, on the other hand, favored attaching legislation concerning the DACA “dreamers” as a tactical measure against the Republican Party.
The Republican congressional majority voted in favor of the bill, including some Democrats such as Darren Soto (D-Fla.), and with the exception of members of the Freedom Caucus such as Raul Labrador (R- Idaho).
Most of the Democratic minority, including Rep. Luis Gutierrez (D-Ill.), Nydia Velasquez (D-N.Y.), and José Serrano (D-N.Y.) voted against it.
Except for Ryan and Rubio, all of the aforementioned congressmen are of Puerto Rican heritage. One can’t help but notice how the ideological lines got blurred, and how self-anointed defenders of Puerto Rico — whatever that means — placed the interests of the DACA dreamers above the interest of the 3.5 million American citizens in Puerto Rico.
What is indisputable is that Puerto Rico did not have a vote in the process. It is time for Puerto Rico to stop falling through the territorial/colonial rabbit hole.
Andrés L. Córdova is a law professor at Inter American University of Puerto Rico, where he teaches contracts and property courses. He is also an occasional columnist on legal and political issues at the Spanish daily El Vocero de Puerto Rico.