Monthly Archives: May 2018

YJIL Forum is delighted to present this Symposium featuring four responses to Joseph Blocher and Mitu Gulati’s Puerto Rico and the Right of Accession, recently published in Volume 43.2 of the Yale Journal of International Law. YJIL Forum is sincerely grateful to Judge Gelpí, Professors Delaney & Ponsa-Kraus, Dean Shin, and Professor Morales for their thought-provoking responses.

Comment on Blocher & Gulati’s “Puerto Rico and the Right of Accession”
Written by Gustavo A. Gelpí

Fantasy Island
Written by Erin F. Delaney and Christina D. Ponsa-Kraus

Group and Individual Rights in the Argument for Puerto Rican Accession
Written by Patrick S. Shin

Puerto Rican Identity and the Trouble with National Self-Determination: A Response to Joseph Blocher and Mitu Gulati’s “Puerto Rico and the Right of Accession”
Written by Daniel I. Morales

Written by Gustavo A. Gelpí*

Is the U.S. Congress under a constitutional obligation to admit Puerto Rico as the fifty-first state of the Union if this is the ample preference of U.S. citizen voters therein?  Or if these voters favor another form of permanent union with the United States, is Congress required to allow for such arrangement?[1] Finally, can Congress override the overwhelming rejection of independence by the U.S. citizens in Puerto Rico[2] and instead expel the territory and grant its independence?  Professors Blocher and Gulati eloquently discuss these enigmas from domestic and international law perspectives and conclude that, as to domestic law, “the answers are not obvious” and pose a “difficult question.” In contrast, they explain, international law indeed suggests a legal right to self-determination. This comment builds upon examples included in Blocher and Gulati’s Article using judicial, congressional, and historical precedents, highlighting that any decision about Puerto Rico’s future must consider its impact on U.S. citizens residing in the Commonwealth.

Before proceeding, I feel compelled to address one particularly important matter: Puerto Ricans are natural-born U.S. citizens. This status as U.S. citizens is the backdrop to answering the questions posed by Blocher and Gulati.  Persons born in Puerto Rico have been U.S. citizens since 1917 by virtue of the Jones Act.[3]  Congress, however, replaced this statutory citizenship with natural-born citizenship, effective for all persons born in Puerto Rico, after January 13, 1941.[4]  Accordingly, persons born in the U.S. territory have enjoyed the same birthright citizenship as their stateside-born brethren for seventy-seven years.  Congress, in the exercise of its power over the territory it has now held for 120 years, must be cognizant of the portentous nature of such citizenship.[5]  This simply is not an instance of the United States possessing and/or controlling territory not populated nor governed by its own citizens.

Judicial Precedent

Professors Blocher and Gulati highlight the nefarious Insular Cases and the century-plus distinction between incorporated and unincorporated territories as proof that Congress can unilaterally decide Puerto Rico’s future. These cases are still the law of the land despite their imperialistic and racial underpinnings.[6]  If Puerto Rico remains unincorporated, Congress, as a matter of constitutional law, retains the seemingly limitless power to determine whether to maintain the territory’s status quo, admit it to the Union, call for some other political arrangement, or simply expel it. Recent Supreme Court jurisprudence appears to reaffirm this power. In 2016, in Puerto Rico v. Sanchez Valle, the Supreme Court held that, for purposes of the Double Jeopardy Clause, the territory’s sovereignty emanates from Congress.[7]  Despite not mentioning the Insular Cases, the majority opinion in Sanchez Valle quite arguably reaffirms Congress’ power to reshape Puerto Rico’s political destiny, stating that “Congress has broad latitude to develop innovative approaches to territorial governance . . . .”[8]

The authors highlight that there may be some constitutional limit to Congress’ territorial power over Puerto Rico.  In Boumediene v. Bush the Supreme Court, citing earlier precedent, recognized that the Insular Cases involved territories “with wholly dissimilar traditions and institutions” that Congress intended to govern “temporarily.”[9]  The Court further held that “it may well be that over time the ties between the United States and any of its unincorporated territories strengthen in ways that are of constitutional significance.”[10]  Certainly the Puerto Rico of 2018 is not a territory of dissimilar traditions; after 120 years of U.S. dominion, Congress has chiseled it into a de facto state.[11]  For example, Puerto Rico has an Article III federal court identical in jurisdiction, powers, and responsibilities to those in the States.[12]  No other non-state U.S. jurisdiction, except the District of Columbia, ever enjoyed an Article III court until admitted to the Union.[13]

The authors also sustain that Boumediene may support the proposition that the U.S. citizens of Puerto Rico have a constitutional right to control their political destiny in some way, thus limiting Congress’ power.  Boumediene, which was not cited in Sanchez Valle, states that “[a]bstaining from questions involving forward sovereignty and territorial governance is one thing.  To hold that the political branches have the power to switch the Constitution on and off at will is quite another.”[14]  On the one hand, Boumediene probably does not limit Congress’ territorial power to define a territory’s status, because the Court abstained from questions of sovereignty. On the other hand, Boumediene also implies that the power is limited by checks and balances, which allow the courts to ensure that Congress does not violate citizens’ constitutional rights. The result is that, absent further pronouncements by the Court, Congress’ power to define a territory’s status is not limited. Only its power over citizens inhabiting a territory is.

Congressional Precedent

The authors allude to Congress’ enactment of PROMESA shortly after the Supreme Court decided Sanchez Valle as proof that Congress can act unilaterally. They further state that opening the door to Chapter 9 of the Bankruptcy Code came at a “steep price” for Puerto Rico.[15]  From a strictly democratic perspective such is the reality.  By establishing an unelected Financial Oversight Board capable of overriding the elected Governor and Legislature,[16] PROMESA signals the very end of the republican form of government established when Congress approved Puerto Rico’s Constitution in 1952.[17]

PROMESA provides for a fiscal board that controls the territory’s finances.[18]  Intended as a blessing to save Puerto Rico from economic collapse, it indeed comes with a curse.  The federal statute de facto amends Puerto Rico’s Constitution. It makes the board an entity of the territorial government, rather than of the federal government,[19] and places the same above the two elected branches of local government, even sub silentio above the Puerto Rico Supreme Court, for purposes of fiscal actions.[20]  The members of the board are also appointed by the President without Senate confirmation and therefore not commissioned via a local appointment process.[21]  In practical terms, the laws and actions of Puerto Rico’s elected officials are subservient to the board.  While U.S. states could argue that this is an egregious violation of state sovereignty, for Puerto Rico it becomes a simple exercise of unfettered territorial power.[22]

Assuming that PROMESA withstands any constitutional challenge before the Supreme Court, it provides congressional precedent to further shape, in any way and form, the political destiny of Puerto Rico.  Lacking its once-certain political autonomy as a state-like entity, the territory remains at Congress’ whim.  While statehood or independence—or even a modification of the status quo within the territorial framework—are possible future paths with clear consequences, [23] Congress could instead continue to hold the island in perennial limbo as it has done for 120 years.  For example, Congress could incorporate Puerto Rico and not make it a state indefinitely—indeed, it took ninety-two years for the incorporated territory of Alaska to become a state.  Likewise, Congress could maintain the current commonwealth status without modifying it, or it could further strip the territory’s faculties, thus dialing back even more the powers it gave to the territory over the last century.

Historical Precedent

The authors point to the Philippines as historical precedent of unilaterally disposing of a territory via independence.  The once-U.S. territory was acquired from Spain along with Puerto Rico and Guam in 1898.  In 1916 Congress granted the Philippines autonomy.[24]  In 1935 it established the Commonwealth of the Philippines as a transition to independence.[25]  Finally, in 1946 the Philippines became an independent sovereign. At no point did the people of the Philippines vote for independence.[26]

Such precedent does not stand alone, and there is a more recent example.  In 1904 the United States acquired from Panama, via treaty, what would be known as the Canal Zone.[27]  This U.S. territory reverted to Panama after the two nations ratified another treaty in 1978.[28] Both the Philippines and Canal Zone evidence that Congress historically has not been shy about entirely abdicating its territorial as well citizenship and nationality powers over a territory when circumstances so warrant.  For example, once the Philippines became a sovereign nation, its citizens born therein no longer held U.S. national status.  Similarly, in the Canal Zone, upon returning the same to Panama, individuals subsequently born there would no longer be U.S. citizens. Absent statehood or a specific pronouncement by the Supreme Court, if Congress maintains or modifies the current commonwealth scheme, or opts for territorial secession, there is no guarantee that persons born in Puerto Rico after a specific date provided by statute will receive natural-born citizenship, statutory citizenship, or even U.S. national status.

Conclusion

I commend and applaud Professors Blocher and Gulati for preparing such an excellent and persuasive Article.  The piece demonstrates that there is likely no legal domestic impairment to the exercise of Congress’ territorial power to unilaterally determine Puerto Rico’s future political status or the citizenship rights of future generations unless the Supreme Court were to limit the power’s extent.  At the same time, the Article also accurately depicts the United States’ lack of adherence to the democratic principle of consent of the governed in its own territorial possessions.[30]  Again, such a scenario is even more appalling given the fact that an overwhelming majority of the inhabitants of Puerto Rico are natural-born United States citizens.[31]

* United States District Judge (2006-present) and author of The Constitutional Evolution of Puerto Rico and Other U.S. Territories 1898-Present (2017).

[1] See, e.g., Compact of Permanent Union between Puerto Rico and the United States: Report of the Ad Hoc Advisory Group on Puerto Rico (1975) (report and proposal by joint group appointed by the U.S. President and the Governor of Puerto Rico to study possible enhancements to Puerto Rico’s Commonwealth status); H.R. 11200 & 11201, 94th Cong. (1975) (proposing the Compact of Permanent Union between Puerto Rico and the United States, which ultimately failed in Congress).

[2] See Alexia Fernández Campbell, Puerto Rico’s Most Ambitious Push yet for Statehood, Explained, Vox (Jan. 11, 2018), https://www.vox.com/policy-and-politics/2018/1/11/15782544/puerto-rico-pushes-for-statehood-explained (“Puerto Rico’s two main political parties represent those who are in favor of statehood and those who want to remain a commonwealth. A smaller number of Puerto Ricans want full independence.”).

[3] Jones Act (Puerto Rico), ch. 145, 39 Stat. 951 (1917) (codified at 8 U.S.C. § 1402 (1952)).

[4] 8 U.S.C. § 1402 (1952).

[5] Persons born in Puerto Rico are not the only natural-born U.S. citizens residing therein. A significant number of natural-born U.S. citizens born in the States have also made the U.S. territory their home, as have many naturalized U.S. citizens. See Arnold H. Leibowitz, Defining Status 161-62 (1989).

[6] Boumediene v. Bush, 553 U.S. 723, 759 (2008) (“This century-old doctrine informs our analysis in the present matter.”).

[7] 136 S. Ct. 1863, 1876-77 (2016).

[8] Id. at 1876.

[9] 553 U.S. at 759 (citing Reid v. Covert, 354 U.S. 1, 14 (1957).

[10] Id. at 758.

[11] See Examining Bd. of Eng’rs v. Flores de Otero, 426 U.S. 572, 594 (1976) (“[T]he purpose of Congress in the 1950 and 1952 legislation was to accord to Puerto Rico the degree of autonomy and independence normally associated with States of the Union . . . .”).

[12] Id. at 595 n.26; see also Gustavo A. Gelpí, The 50th Anniversary of the District of Puerto Rico Article III Court, Fed. Law., July 2016, at 18, 33 (2016).

[13] Gelpí, supra note 12.

[14] 553 U.S. at 765.

[15] Joseph Blocher & Mitu Gulati, Puerto Rico and the Right of Accession, 43 Yale J. Int’l L. 201, 219 (2018).

[16] See 48 U.S.C.A. § 2141 (West 2016); Juan R. Torruella, Why Puerto Rico Does Not Need Further Experimentation with Its Future: A Reply to the Notion of “Territorial Federalism”, 131 Harv. L. Rev. F. 65, 94 (2018) (“The Board directs and sets schedules, by which the Governor prepares and submits fiscal plans required by the Act, and by which the Board approves, disapproves, or certifies such plans; but in the absence or default of such plans, the Board ‘in its sole discretion’ may develop said plans and submit them to the Governor and Legislature, whereupon they shall be ‘deemed approved by the Governor.’”).

[17] See Examining Bd. of Eng’rs, 426 U.S. at 594.

[18] Pub. L. No. 114-187, 130 Stat. 549 (2016) (codified at 48 U.S.C.A. §§ 2101–2241 (West 2017)).

[19] 48 U.S.C.A. § 2121(c)(1) (West 2017).

[20] See id. §2141.

[21] Id. § 2121(e).

[22] Id. § 2121(b)(2) (“Congress enacts this Act pursuant to article IV, section 3 of the Constitution . . . which provides Congress the power to dispose of and make all needful rules and regulations for territories.”).

[23] As to the possibility of statehood, ninety-seven percent of those voting in the most recent plebiscite favored statehood. Frances Robles, Despite Vote in Favor, Puerto Rico Faces a Daunting Road Toward Statehood, N.Y. Times (June 12, 2017), https://nyti.ms/2tf9o5X. As for modifying the status quo, see Rafael Hernández-Colón, The Evolution of Democratic Governance Under the Territorial

Clause of the U.S. Constitution, 50 Suffolk U. L. Rev. 587, 617 (2017) (“These changes must prevent the denial of self-government embodied by PROMESA from happening again.”). Independence is possible but has historically lacked political support. See Fernández Campbell, supra note 2.

[24] Philippine Autonomy Act, ch. 416, 39 Stat. 545 (1916).

[25] Philippine Independence Act, ch. 86, 48 Stat. 456 (1934).

[26] Leibowitz, supra note 5, at 54 (“The 1934 act, in addition to the promise of independence, gave the Philippines the right to draft their own constitution. The constitution was to be voted upon but the question of independence itself, at the request of the Philippine authorities, was not submitted to a plebiscite.”).

[27] Convention Between the United States and the Republic of Panama for the Construction of a Ship Canal to Connect the Waters of the Atlantic and Pacific Oceans, Pan.-U.S., Nov. 18, 1903, 33 Stat. 2234.

[28] Panama Canal Treaty, Pan.-U.S., Sept. 7, 1977, T.I.A.S. No. 10,030 (entered into force Oct. 1, 1979).

[29] See Gonzales v. Williams, 192 U.S. 1, 12-13 (1904).

[30] See Hernández-Colón, supra note 23, at 616 (“After the significant harm Puerto Rico’s government will endure as a result of PROMESA, Puerto Rico’s relationship with the United States—based on the principle of consent of the governed—will have been jeopardized.”).

[31] See Torruella, supra note 16, at 97 (“Puerto Rico is populated by U.S. citizens, a not-inconsiderable fact to be kept in mind by those looking to further experiment with their destiny. . . . Why geographic location should make any difference or have any relevance to a determination of such a fundamental question as the rights to which a citizen is entitled defies any logic or valid legal principle . . . .”) (emphasis in original).

Written by Erin F. Delaney & Christina D. Ponsa-Kraus

When it comes to the status of Puerto Rico, sides have been staked out, factions formed, lines drawn.  For many decades, Puerto Ricans have been split three ways: roughly half advocates an improved version of the current “commonwealth” status; roughly half supports the island’s admission into the Union as the fifty-first state; and a tiny but vocal minority favors independence.  Yet by taking an unorthodox approach to the question of Puerto Rico’s future, Joseph Blocher and Mitu Gulati may have managed to find unexpected common ground.  With an intriguing and provocative set of arguments, they have made a welcome contribution to what has long looked like an intractable debate.

The authors argue that Puerto Rico’s status problem is ultimately a legal issue: one that sounds in the register of international law and the law of self-determination, even as it must be resolved in a manner consistent with domestic constitutional law.  And they suggest, boldly, that their analysis might lead to new obligations on the part of the United States.

The Article asks whether the United States could expel Puerto Rico, and concludes, based on the authors’ reading of international law, that it could not, “for almost exactly the same reasons that [international law] gives Puerto Rico a right to independence.” (Blocher & Gulati, p. 226).  But there’s more.  Not only could the United States not expel Puerto Rico, but on the contrary, it arguably has a legal obligation to allow Puerto Rico to become a state of the Union—at least under international law, and possibly even under U.S. constitutional law.

With that one-two punch, Blocher and Gulati could conceivably make everyone in Puerto Rico happy: the “commonwealthers,” whose greatest fear is expulsion; the “statehooders,” whose nightmare is rejection; and the independentistas, who dream of separation.

The authors first present their view of the relevant international law as updated by a law of self-determination for the twenty-first century.  They explain that, historically, international law recognized the right of sovereigns to control their borders, including by ceding portions of their territory.  And they correctly observe that the U.S. Supreme Court’s Insular Cases (1901) articulated the domestic constitutional version of this understanding.  But they persuasively contend that “it is implausible to think that this traditional rule” would hold sway today. (Blocher & Gulati, p. 225).  The principle of self-determination, which was initially applied to aid colonies seeking independence, cuts a broader swath now, they argue, and should be understood as limiting a nation’s effort to expel a territory.  Unilateral action by the central government against a territory or region would not be acceptable; consent from the territory’s residents would be required before expulsion.

The authors then apply their argument to the case of Puerto Rico.  They focus on Public Law 600: the most contested legal text in the island’s status debate.  A statute passed by the U.S. Congress in 1950, Public Law 600 authorized the adoption of a Puerto Rican constitution in these words: “[F]ully recognizing the principle of government by consent, this Act is now adopted in the nature of a compact so that the People of Puerto Rico may organize a government pursuant to a constitution of their own adoption” (Pub. L. 81-600, §1 (1950)) (emphasis added).  Ever since then, Puerto Ricans have argued over the meaning of the phrase “in the nature of a compact.”  Did the developments following the passage of Public Law 600—the adoption of the Constitution of Puerto Rico and, with it, the creation of the “Commonwealth of Puerto Rico”—transform Puerto Rico into a sovereign entity?  Were Puerto Rico and the United States now bound by a “compact” unalterable except by the mutual consent of the parties?  Or, even as it attained local self-government, did Puerto Rico remain a territory of the United States?  Was the island still governed by Congress under the Territory Clause of the U.S. Constitution and still subject to Congress’ plenary power, despite its enjoyment of substantial autonomy?

The stakes could not be higher.  If Puerto Rico is a separate sovereign, then Puerto Ricans have already realized the basic goals of self-determination and, pursuant to Public Law 600, have structured a binding, sovereign-to-sovereign bilateral union with their former imperial overlord.  On this view, perfecting Puerto Rico’s status merely requires addressing a few remaining flaws in the arrangement—for example, finding a way to compensate for the island’s continuing lack of representation in the federal government.  But if Puerto Rico remains a territory, then it remains a colony, and self-determination has not been achieved.  Decolonization requires either statehood or independence.  (Congress’ creation in 2016 of a Federal Oversight and Management Board (FOMB) to handle the island’s ongoing economic crisis has strained the former view nearly to the breaking point. After all, the FOMB, which is composed of members appointed by the federal government and wields broad powers, looks a lot like… well, an imperial overlord.  Even so, the view that Puerto Rico is a separate sovereign somehow still has its defenders.)

Commonwealthers hold the former view; statehooders and independentistas the latter.  And there they have stood, staring each other down, neither side blinking, for nearly seventy years—thus making what Blocher and Gulati do next so improbable, it is almost heroic.

Taking the right of independence for granted (that’s not the improbable part: we all take that for granted), the authors make the case against the United States’ right to expel Puerto Rico.  And they do so from both of the perspectives described above: “If the compact between Puerto Rico and the rest of the United States is akin to a treaty between separate sovereigns, one set of international rules applies,” they write.  But if Puerto Rico remains a territory, “a separate set applies.” (Blocher & Gulati, p. 220-21). On the former view, expulsion would require some sort of fault.  On the latter view, Puerto Rico’s colonial status precludes expulsion.  They also briefly analogize the compact to a “contract”; arguing that it should be read in light of international law principles and of Puerto Rico’s colonial history, they reach the same conclusion.   Drawing on this argument about expulsion, in its inverse they find a right to accession—that is, a right for Puerto Rico to become a state in the Union.  And they find additional support for this right in the domestic constitutional context.

Is it too good to be true?  Puerto Rico gets a prohibition on its unilateral expulsion, and a right to statehood, without relinquishing the right to independence?

Commonwealthers will pause to wonder how it is that interpreting their “compact” as a treaty could ever lead to a prohibition on expulsion.  A central tenet of what is known in Puerto Rico as the “compact theory” holds that the compact created pursuant to Public Law 600 is emphatically not a treaty, precisely because of what Blocher and Gulati themselves explain about treaties: ordinarily, sovereigns retain the right to withdraw from them and even, under certain circumstances, to expel other parties.  The commonwealthers’ insistence on the “compact” framing has always been intended to ensure that the United States could not unilaterally expel Puerto Rico.  (They simultaneously maintain that Puerto Rico would retain its right to independence—a double standard they’ve never fully theorized.)  Indeed, a faction of the pro-commonwealth Popular Democratic Party—the soberanistas—has in recent years begun to insist that if commonwealthers want to argue that Puerto Rico is truly sovereign, then they have to accept that the compact really is just a treaty, and that either party to it could withdraw.  But Blocher and Gulati contend that, in Puerto Rico’s case, expulsion would be precluded.  And if one finds their argument convincing, then the authors have given the commonwealthers something they have always lacked: a theory that reconciles Puerto Rico’s alleged sovereignty with the existence of a binding compact.

Statehooders, meanwhile, will puzzle over how something as desirable as a right to statehood could follow from something as undesirable as a defense of the “compact.”  To them, the compact is a trap: if it really were binding, it would relegate Puerto Rico to a permanent second-class status—a union with the United States without voting representation in the federal government.  Such a status could not vindicate the goals of self-determination.  And thus, statehooders have argued that Congress has an obligation to provide for a process of self-determination that includes only those alternatives that would truly decolonize Puerto Rico: either statehood or independence.  Yet even if statehood were to prevail in such a process, it would not guarantee admission.  Once again, though, if one is persuaded by Blocher and Gulati, the authors have improbably managed to eliminate one of the most daunting obstacles to statehood: namely, Congress’ right to reject Puerto Rico.  And if they are right, then the compact is no longer a trap, because it simultaneously protects Puerto Rico from unilateral expulsion and confers upon Puerto Rico a right to statehood.

The independentistas, meanwhile, haven’t lost anything.  According to Blocher and Gulati, Puerto Rico would still have the right to independence.  The independentistas’ problem isn’t that international law does not recognize Puerto Rico’s right to separate from the United States; their problem is that almost no one in Puerto Rico wants to.  Then again, who knows?  If the authors persuade enough people that the United States is bound to Puerto Rico by a compact that not only prevents it from expelling the island but also confers upon the island a right to statehood, then maybe the reality will begin to sink in that Puerto Rico will never, no, really, never, ever be independent, and in quixotic defiance, Puerto Ricans will begin to turn away from the United States and embrace the idea of independence. Or not.  But it is tempting to fantasize, inspired by Blocher and Gulati’s invitation to imagine the impossible for Puerto Rico.

Putting aside whether one finds Blocher and Gulati’s arguments convincing, they have pulled off an unusual, if not unprecedented, feat. They have reframed Public Law 600 in a way that permits common ground and, upon that ground, they have built an argument that empowers Puerto Rico in its struggle for self-determination. In so doing, they offer support to all of the status positions on the island.

It does seem too good to be true.  Yet to say so is not to say anything Blocher and Gulati do not already know. As they sagely acknowledge with respect to the U.S. Constitution (though it may be said with equal confidence about international law), the value of a legal argument need not lie in whether one could successfully litigate it.  Legal arguments have moral and rhetorical power in a situation like this one, where resolution will come not in a courtroom, but in the larger political arena.

In the end, Blocher and Gulati show us that consensus might be found where no one has thought to look.  They have also taken on another received wisdom: the bedrock assumption that no matter what happens, nothing can happen unless the United States wants it to.  Taking a sledgehammer to that bedrock, they refuse to accept as given the notion that the United States has unilateral power to dictate Puerto Rico’s political fate.  Truth, it is said, is a matter of the imagination.

Written by Patrick S. Shin

Introduction

In Puerto Rico and the Right of Accession, Joseph Blocher and Mitu Gulati highlight various ways in which Puerto Rico’s sui generis—and uncertain—relationship with the United States impairs Puerto Ricans’ political standing. Blocher and Gulati claim that “the people of Puerto Rico[] . . . have a legal right to determine their own futures vis-à-vis their colonial powers”[1] and that “Puerto Ricans should have the ultimate say in whether to be more closely associated with the United States.”[2] Blocher and Gulati set forth persuasive arguments for why Puerto Rico’s status quo as an unincorporated territory is not sustainable as a matter of international law, constitutional theory, or politics.

What the authors make less clear, however, is the nature of the particular entitlements that Puerto Ricans could seek to assert in moving toward a more permanent resolution. Specifically, Blocher and Gulati do not explicitly distinguish between the various rights that Puerto Ricans have as a group and those that they have as individuals. This essay examines the distinction between group rights and individual rights in relation to disputes about Puerto Rico’s status.

In general, group rights—sometimes called collective rights—are rights that are held jointly by a group of people. Group rights are exercised or waived by the group as a whole. By contrast, individual rights are held severally by each member of the group. The mere fact that a right is held by someone in virtue of his or her group membership does not make it a “group right” in the relevant sense. A right may be individual in nature even if it is held incident to group membership.[3]  

A potential source of confusion is that group and individual rights need not be mutually exclusive. A person may hold an individual right to something and yet also be a member of a group that holds a collective right to that same thing. Political rights, for example, may attach to both individuals and groups consisting of those same individuals. Arguably, this is also the case with Blocher and Gulati’s articulated “right of Puerto Rican accession.”

Distinguishing Group and Individual Rights: An Example

Before turning to the specifics of the Puerto Rico context, a hypothetical may help illustrate how a single political process can encompass both group and individual rights. Suppose a city has a tradition of holding a parade every Columbus Day. The city has a policy that grants every high school in the area the right to send a student marching band to perform in the parade. However, in recognition of the moral controversies surrounding this holiday, the policy further provides that each high school’s participation must be approved by the school’s student body.

In describing the rights created by the Columbus Day parade policy, we might say that the policy gives high school students a right to decide whether or not to participate in the parade. This is surely true. But, upon reflection, we can readily notice that this “right” has both an individual and a group component.

If Rydell High is one of the schools covered by the Columbus Day parade policy, we might say that Rydell has a right to send its marching band to the parade. This is a group right held by Rydell in that only the school as a whole can decide whether to send its band or not. No individual student holds this right. On the other hand, if Rydell’s school policies give every member of the student body the right to vote on whether to participate in the parade, this right is an individual one, because it is held and exercised by each individual student. Note that the student right to vote in this scenario is individual even though it is fully dependent on the student’s membership in Rydell’s student body. Finally, we might observe that if Rydell’s student body were to vote against sending its band to the parade, no individual Rydell student could then assert a right to participate in it. This is because the right to participate in the parade is a group right held (and waived) by Rydell High, rather than an individual right that can be asserted by any individual student.

The lessons of this example are that the seemingly simple notion of a right to participate can consist of a combination of group and individual rights that should not be elided and that carefully distinguishing among these rights is necessary to understand who holds them and can validly assert them.

A Taxonomy of Puerto Rican Group and Individual Rights

Analyzing the rights relevant to the Puerto Rico problem is further complicated by the fact that Puerto Ricans are members of two groups that are pertinent to our discussion. On the one hand, they are residents and citizens of the Commonwealth of Puerto Rico. On the other hand, they are also citizens of the United States. Thus, assuming that membership in each of these polities implicates both group and individual rights, we can identify at least four potential sets of rights that are relevant to Puerto Ricans’ ability to determine the territory’s status relative to the United States: (1) the group rights of Puerto Ricans as a people; (2) the individual rights of Puerto Ricans held in virtue of their status as residents and citizens of Puerto Rico; (3) the group rights of Puerto Ricans as citizens of the United States; (4) and the individual rights of Puerto Ricans held in virtue of their U.S. citizenship.

Group Rights of Puerto Ricans as a People.

To the extent that Puerto Ricans can be regarded as a people or polity, they may have a group or collective right to self-determination.[4] The sources of this right may include Puerto Rico’s compact with the United States (“the 1952 Compact”), or principles of international law.[5] For example, the right to self-determination is clearly a group right insofar as no individual person can lay claim to Puerto Rican statehood or independence. Rather, it is the people of Puerto Rico who may decide collectively which status to pursue.

Individual Rights of Puerto Ricans qua Puerto Ricans.

The group right to self-determination held by Puerto Ricans as a people presupposes some method for aggregating or consolidating the judgment of individuals into a single expression of will. In other words, the “will of the people of Puerto Rico” operates as a function of the wills of individual Puerto Ricans. That function is presumably defined by the Puerto Rican Constitution. If this is correct, then every Puerto Rican has an individual right, guaranteed by the Commonwealth’s own Constitution, to vote for (or otherwise register) his or her political preference with regard to Puerto Rico’s status vis-à-vis the United States. In short, every Puerto Rican has an individual right to participate in the Puerto Rican people’s exercise of their group right to self-determination.

Individual Rights of Puerto Ricans qua U.S. Citizens.

As Blocher and Gulati explain, the Jones Act of 1917 conferred U.S. citizenship on Puerto Ricans,[6] and a subsequent statute provided that all Puerto Ricans born in the territory after January 13, 1941, would have the status of natural-born U.S. citizens.[7] U.S. citizenship status is held by individual persons, not Puerto Ricans as a group, even though their citizenship status may be attributable to their membership in that group. Thus, the rights that attach to this status are individual rights. These rights are determined by applicable federal law, including the U.S. Constitution.

Group Rights of Puerto Rican U.S. Citizens.

Although not explicitly discussed by Blocher and Gulati, it is conceivable that Puerto Ricans hold—or may come to hold—certain collective rights that are unique to Puerto Rican U.S. citizens. For example, setting aside the question of whether any such right exists in current law, one might argue that Puerto Rican U.S. citizens should have a group right to certain forms of representation in U.S. politics. Thus, one might argue that Puerto Ricans hold not only a group right to self-determination qua Puerto Ricans, but also a group right qua Puerto Rican U.S. citizens to participate in any U.S. process that might determine the territory’s status. That is to say, U.S. citizens who are Puerto Ricans arguably should have a collective right to participate in any decision of the United States that would determine the future status of Puerto Rico. This right would be distinct from Puerto Ricans’ group right to self-determination qua Puerto Ricans insofar as the latter right pertains to the decision of the Puerto Rican people to commit themselves to a chosen political status with respect to the United States.

Implications

The foregoing differential analysis is primarily meant to clarify the distinctions among the four categories of rights identified, rather than to establish the existence of any particular rights within those categories. The basic point is that some of Blocher and Gulati’s claims—such as “the people of Puerto Rico . . . have a legal right to determine their own futures,”[8] or “Puerto Ricans should be seen as legally entitled to decide their status for themselves”[9]—can be interpreted in multiple ways. First, such claims might refer either to individual or collective rights. Second, they might involve entitlements relating to political decisions of Puerto Rico, or to political decisions of the United States.

Observing and maintaining these distinctions is crucial, because each category of rights has a different legal foundation. The individual rights of Puerto Ricans qua Puerto Ricans will primarily depend on the Puerto Rican Constitution and international law. Meanwhile, the collective rights of the Puerto Rican people may have their strongest basis in agreements between Puerto Rico and the United States, and perhaps in principles of international law as well. But the individual and group rights of Puerto Ricans qua U.S. citizens will depend on federal statutory and constitutional law.

Clarifying the particular right under discussion helps to avoid conflating divergent legal frameworks when evaluating contested claims about that right. In the particular context of Blocher and Gulati’s theory of accession, paying attention to these differing frameworks may help reveal potential gaps in the authors’ argument. For example, the authors draw on principles of international law to conclude that “Puerto Ricans should have the ultimate say in whether to be more closely associated with the United States.”[10] International law arguably provides the basis for the group right of Puerto Ricans as a people to determine their own political status. What international law-based arguments cannot do, however, is establish that denying accession would infringe upon the individual (and perhaps group) rights of Puerto Ricans as U.S. citizens. More is needed.

It is important to recognize the distinctions among the various group and individual rights of Puerto Rican U.S. citizens, but we should also be attentive to the possibility that some of these distinct rights could be mutually reinforcing. One set of rights might even entail another. For example, consider the claim, attributed by Blocher and Gulati to President Donald Trump, that Puerto Ricans, as “[U.S.] citizens, should be entitled to determine for themselves their political status.”[11] Among other things, this statement suggests a chain of inference leading from Puerto Ricans’ individual rights as U.S. citizens to a group right—deriving from their U.S. citizenship—to determine the political status of the territory. Building the links in this chain of inference would require careful analysis and application of the principles that give content to individual rights of citizenship, such as equal protection, due process, and guarantees of political participation. The specifics of such a project are outside the scope of this essay. But what I am suggesting is that the strongest argument for a group right of Puerto Rican accession may be one that is forged from the individual rights of Puerto Rican U.S. citizens.

[1] Joseph Blocher & Mitu Gulati, Puerto Rico and the Right of Accession, 43 Yale J. Int’l L. 201, 205 (2018).

[2] Id. at 207.

[3] See generally Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights 45-46 (1995) (discussing the ambiguity of “collective rights” and differentiating between group-differentiated rights accorded to individual members of the group versus the group as a whole); Group Rights, The Stanford Encyclopedia of Philosophy Archive (Edward N. Zalta et al. eds., 2016), http://plato.stanford.edu/archives/sum2016/entries/rights-group/.

[4] See Kymlicka, supra note 3, at 27-30 (discussing the self-government rights afforded to national minorities).

[5] Id. at 27 (noting national minorities’ limited right to self-determination under international law).

[6] Blocher & Gulati, supra note 1, at 211.

[7] 8 U.S.C. § 1402 (2012).

[8] Blocher & Gulati, supra note 1, at 205.

[9] Id. at 234 (quoting Rogers M. Smith, The Bitter Roots of Puerto Rican Citizenship, in Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution 373, 385 (Christina Duffy Burnett & Burke Marshall eds., 2001)).

[10] Id. at 207.

[11] Id. at 236.

Written by Daniel I. Morales

With Puerto Rico and the Right of Accession, Blocher and Gulati have performed a legal magic trick. They have turned Puerto Rico’s centuries-old history as an imperial plaything into grounds for its possession of an awesome right: to become the fifty-first state, if its residents so choose. That the United States has taken every possible legal opportunity to hold Puerto Rico at a distance from the mainland, the authors urge, is precisely the reason why equity requires that the island be allowed to come closer—indeed, insinuate itself into—the American Union.

Some might find fault in the tricky sequence of legal pirouettes that Blocher and Gulati must turn to pull off their argument. These readers might think: if the right of accession were so synonymous with legality, it would not take so many complex contortions to get there. I am not one of those people. For me, the fancy footwork underscores the way that laws touching upon sovereignty—a kind of sacral, pre-modern legal category[1]—look so unlike what democracies think of as law and so much more like tools of subjugation and tyranny.[2] The way that Blocher and Gulati manage, like legal alchemists, to turn laws designed to ensure that colonies were not too burdensome to their looters into legal gold for a colonized people is nearly miraculous.

But my main interest in this piece lies a bit further back in the logical chain. I want to take time here to critically reflect on the idea of national self-determination. The expulsion/accession conflict the authors pose can instead be framed as a conflict within the right to self-determination. By avoiding this framing, perhaps strategically, the authors undersell the force of the right that Puerto Rico has accrued. The right of accession does not just allow Puerto Rico to fully realize its own right to self-determination; it grants Puerto Rico the right to trump the most powerful nation on earth’s right to self-determination. The right of accession effectively forces the United States to embrace Puerto Rico, when that is precisely what it has not wanted to do for over a century. It is important to see the conflict this way because doing so helps to clarify why the right of accession will be so hard to effectuate in practice. The hold of an ingrained American entitlement to self-determine partially explains why the U.S. Supreme Court continues to prop-up the Insular Cases and why it is impossible to imagine the Court ever permitting the right of accession to be justiciable. Allowing the right of accession to be vindicated in court runs into the concrete wall of the American people’s righteous right to their self-determination.

Reframing the issue as a conflict within the right to self-determination also gets at the dark side of national self-determination. The concept requires a national self; a coherent, intergenerational “people” that merits the right to rule over territory for being a distinct people.[3] Possession of a determined national “self” also entails the right to exclude others from the national territory for not being the right kind of people. (Puerto Ricans, among many others,[4] have long been considered not the right kind of people.) This construction of intergenerational peoples with rights to rule has lately metastasized into white nationalism in the United States, and anti-Muslim and anti-immigrant hysteria all over the rich West. As someone who is critical of a nation’s right to exclude peaceful newcomers (i.e., to regulate immigration),[5] I worry about the way that Blocher and Gulati’s argument might shore up this broader system of national identity-based sovereign power, even as it provides a kind of justice for Puerto Rico. The Right to Accession paints self-determination as an emancipatory legal regime, but its effects on the world run in both directions. Self-determination enslaves some just as it liberates others.

In Puerto Rico’s case, these concerns are somewhat heightened because the long-lived peculiarity of Puerto Rico’s political status has allowed it to fashion a national identity that is rooted in geography and, at the same time, transcend it. For achieving this, Puerto Rican identity is a cutting-edge model for post-national identity formation. Yet that special, resilient identity is threatened by the resolution of Puerto Rico’s political limbo. (I should mention now that I speak from personal experience; my family has lived in Puerto Rico for centuries.) And while the material costs of maintaining that identity have escalated steeply in the last decades—and have become tragic in the wake of Hurricane Maria—the relative lack of momentum on the island for a shift in status one way or the other for so many decades suggests that maintaining this identity, one forged of an odd mix of citizenship and colonialism, has been of paramount concern to the people of Puerto Rico over the last half century. The maintenance of this hybrid identity was valuable enough to stymie the creation of broad-based social movements to normalize Puerto Rico’s status. Thus, the loss of this highly-valued liminal identity in accession or independence, self-determined or not, is worth reckoning with.[6]

Another way to look at the political history of Puerto Rico is to see that Puerto Ricans, for all the horrible colonial heartache and pain, have enjoyed a unique kind of human freedom. A freedom that we might wish for others to enjoy—though without the material and political hardships that have accompanied it in Puerto Rico’s case. The combination of U.S. citizenship for individual Puerto Ricans with quasi-colonial/quasi-independent political status for the island has allowed Puerto Ricans to fashion and live out a kind of rooted bi-national identity that has permitted many Puerto Ricans[7] to live free of the kind of rigid, dangerous fictions of national desert and identity that, for instance, have lately haunted many American whites.

Let me specify: Puerto Ricans are not Puerto Rican-American. They are Puerto Rican and American; they are both things in both Puerto Rico and the continental United States. Many Puerto Ricans can and do shuffle fluently between both worlds and embody them both wherever they are. They can do this and live this bi-national life without going to a consular officer to ask permission. That Puerto Rico is “foreign in a domestic sense”—however incoherent that seems to the American legal audience—has allowed Puerto Ricans to create multiple overlapping yet distinct sites of belonging and community with different geographic locations that can be traversed at a whim (or really, a few hours of plane travel) without any State involvement.[8]

For most immigrants, leaving their country of origin means that they can never quite return; they leave something behind and become something else. Even if they go back, they are not “the same.” Yet with Puerto Ricans, whether one lives on the island or the mainland, one is always, in a sense, living out a coherent Puerto Rican identity. Living in the United States is not living in exile or as an émigré. Puerto Ricans are not expatriates when they live in the U.S., and they do not (unlike, say, Cubans) generally think of themselves that way. To live on the mainland represented, prior to recent troubles, a choice to be Puerto Rican in the United States, even if one does so principally for financial reasons. To live on the island is a choice to be Puerto Rican in Puerto Rico even at a significant cost to earnings. The Puerto Rican “nation” is bi-national, bi-lingual, and different-by-degrees depending on whether you live on the island or on the mainland, or even where you live on the mainland.

Puerto Ricans, then, live inside a national identity that is more pliant and portable than most, but still provides the “good” things we get from national identity: a sense of rootedness in a distinct and rich cultural tradition tied to a place. The combination of citizenship rights in “immigration” with second-class political status on the island helped to hold this identity together. Second-class political status helped Puerto Rico preserve its culture and language by making it less desirable to mainland Americans. Free access to the mainland has helped millions of Puerto Ricans realize the horizons of their talents in the world’s most developed economy, while allowing them to easily maintain robust ties to the island.

The way that Puerto Rican identity wears its improvisational flexibility on its sleeve, offers a lesson to the world. All national identities are equally made-up, and would be equally plastic if we let them be. All modern “nations” are human inventions that are sustained through the human imagination. Anthropologist Benedict Anderson famously showed that nation-states and the “peoples” that populate them are historically contingent constructions—“imagined communities.”[9] Emergent technologies like the newspaper, along with the advent of empire and the perfection of the bureaucratic capacity to administer it, combined to help people imagine themselves as part of distinctive communities that transcended the village and were tied to (far larger) territory and borders. Ultimately, these newly imagined communities—nation-states—cut themselves off from their empires for a host of reasons, but one historically contingent one was that imperial bureaucrats sitting in the metropole (say, Madrid) didn’t want to treat colonial administrators (say, in Lima) as if they had the same status as the metropolitans did.[10] So the put-upon colonial administrators doing the imperial grunt work in the hinterlands turned against empire and towards independence, making up “nations” of former colonies along the way. Together with many other factors, these histories and technologies conspired to create a great wave of “nation”-building that began with the U.S. Revolutionary War and spread to Europe, the Caribbean, Latin America, and Africa. This long tidal wave of national self-determination, Anderson emphasizes, required the fashioning of a coherent and distinctive national self to determine.[11]

Seen in this framework, Puerto Rico presents a case of arrested development. It has a sense of national identity, since there is a meaningful imagined community of Puerto Ricans with a distinctive culture, but that national identity has never been transformed into a nation-state. Puerto Rico is pre-modern and cutting-edge. Its political arrangement is imperial, while its national identity is novel and perhaps a portent of things to come.

Resolving Puerto Rico’s political status would effectively annihilate the powerful and productive novelty of Puerto Rican identity. Rather than continuing to live in multiple identities and domains, the perfection of Puerto Rican political status into a U.S. state, or a nation-state, will mean Puerto Ricans will be Puerto Ricans or Americans (or hyphenated Americans), and not both at once. The erasure of this possibility for living out this kind of identity highlights my longstanding concern with national self-determination: self-determination ought to be an individual, rather than a collective, right. Following political theorist Jacqueline Stevens, a global State system most conducive to human flourishing would dissolve borders for purposes of human exclusion but leave them intact for purposes of all other aspects of governance. This would allow for territorial States without exclusive peoples or nations. In such a world, each individual human would have the power to determine for themselves as to what geographic context or contexts that person prefers to belong. Territorial States would still retain their cultural distinctiveness because, in a world of radical choice of citizenship, States would attract people that share their vision of the good life. Every person could enjoy the privileges of self-fashioning that many Puerto Ricans have accidentally enjoyed. Blocher and Gulati’s vision of emancipation is firmly rooted in the Westphalian system (as it must be to gain any practical traction in the medium term), but Puerto Ricans’ lived lives actually point past that system to new possibilities.

Puerto Ricans have learned to live successfully, fruitfully, and happily without some of the comforting fictions with which most humans live—and in conditions of relative domination and material deprivation. Puerto Ricans know in the range of skin tones and hair textures within nuclear families that race is a fiction. We know through a rootedness in the United States and in Puerto Rico that a nation is something people make together and that it can shift locations as preferences and circumstances change. The way in which Puerto Rican culture is both rich and rooted in soil, made and remade as the hurricanes—literal and political—blow, is an example of creative identity work that should be emulated. I hope this way of being pluralist and multiple can serve as an inspiration for new modes of living and being in an increasingly complex and riven world. For the truth is that we are all Puerto Rican in some sense. If we try, we have the power to live happily in multiple domains and in multiple identities in multiple territories because we are all more than one thing.[12] Puerto Ricans had to learn long ago to be comfortable in ambiguity. That comfort is valuable because ambiguity is reality. The hard lines drawn by State borders, identities, and races are always more permeable and unstable than they appear on maps.

None of this is to say that Puerto Rico should not resolve its status as its residents see fit. I agree wholeheartedly with Blocher and Gulati that Puerto Ricans have the right to become part of the United States if they want to. I only wish to point out that a wonderful, productive, and powerful form of identity that is worth emulating has emerged from Puerto Rico’s “intermediate state of ambiguous existence for an indefinite period.”[13] That form of living may need to give way for powerful material reasons, but we shouldn’t forget the lost art of being Puerto Rican, should it no longer be lived out. The best aspects of it are a model for a new kind of human freedom.

[1] See, e.g., Paul Kahn, Sacred Violence: Torture, Terror, and Sovereignty (2008).

[2] See generally Daniel I. Morales, “Illegal” Migration is Speech, 92 Ind. L.J. 735 (2017).

[3] For criticism of nationalism and the intergenerational quality of nationalism, see Jacqueline Stevens, States Without Nations: Citizenship for Mortals (2009).

[4] U.S. immigration law established its modern form to effect a return of the United States to its old northern European racial stock. See Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America 65-75 (2004). Immigration history is riddled with racism, particularly with the idea that certain races are not assimilable or will undermine the might of the American nation. See, e.g., id.; Jean Pfaelzer Driven Out: The Forgotten War Against Chinese Americans 303-08 (2007).

[5] See, e.g., Morales, supra note 2; Daniel I. Morales, Undocumented Migrants as New (and Peaceful) American Revolutionaries, 12 Duke J. Const. L. & Pub. Pol’y 135 (2016).

[6] See Osamudia R. James, Valuing Identity, 102 Minn. L. Rev. 127, 178 (2017), for a similar argument about how black identity is threatened by efforts to pull African Americans into mainstream locations and settings for their material benefit.

[7] I understand the dangers of generalizing about questions of identity. I am speaking as a Puerto Rican and not for all Puerto Ricans, but my existence within that identity does, I hope, give me some generalizable insights through which to speak about these issues.

[8] I note of course that the ability to perfect this bi-national belonging is tied intimately with social class, racial presentation, and other factors that affect the degree to which encompassing this version of Puerto Rican identity is possible. Still, it’s important to note that in comparison to other modes of transnational life, the privileges of citizenship granted to all Puerto Ricans make it radically simpler for even those of modest means to live out this bi-national identity.

[9] See generally Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (3d ed. 2006).

[10] Id. at 58-65.

[11] See generally id.

[12] Note here I focus on a political group’s duty to create the conditions that would allow individuals to embrace this pluralist identity.  In the here and now, pluralism is made difficult to impossible for many because of racism and other forms of prejudice, and as a result the choice to embrace a single identity over other, perhaps hybrid, possibilities, can be rational self-protective and fulfilling.

[13] Downes v. Bidwell, 182 U.S. 244, 372 (1901) (Fuller, C.J., dissenting).