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PERSPECTIVE Dick Thornburgh Interview Part 1 Puerto Rico’s 1952 Constitution: -Dick Thornburgh
 OCTOBER 4, 2002 Former U.S. Attorney General Dick Thornburgh & Puerto Rico’s Constitution In this 50th year of the promulgation of Puerto Rico’s 1952 Constitution, opinions are heard about the nature of that document, especially in connection with the future political status of the island. Controversy surrounds the question of whether or not that local constitution constitutes a "bilateral compact" between Puerto Rico and the United States, and if it leaves open the possibility of enhancements that could evolve into full sovereignty within the U.S. body politic for the nearly 4-million American citizens of Puerto Rico. Recently, former U.S. Attorney General Dick Thornburgh, a scholar of the U.S. Constitution, added his voice to the question. In a wide ranging interview with Lina Younes, former Bureau Chief of Puerto Rico’s El Vocero, Thornburgh addresses both of these questions, and others, in interesting detail. That publication printed excerpts of the interview, receiving extensive public reaction, especially by those opposing his views. With this edition, the Herald will begin publishing the entire text of the interview in both English and Spanish in a three-part series. Thornburgh, a former Attorney General of the United States under Presidents Reagan and Bush and two-term Governor of Pennsylvania, now practices law in Washington, D.C. with the firm of Kirkpatrick & Lockhart, LLP. He is a frequent lecturer on the subject of Puerto Rico’s relationship with the federal government. Dick Thornburgh Interview Part 1 QUESTION: Does the current relationship between the United States and Puerto Rico constitute a "bilateral compact"? ANSWER: This question has been debated for years without any conclusion. As a local political issue there may be no answer that satisfies all parties, but legally and constitutionally there is a clear answer. To frame the legal question properly and arrive at a correct conclusion, it may be best to look at the terms "bilateral" and "compact" separately, as well as when taken together. Let’s start by examining the word "bilateral" as used to describe Puerto Rico’s relations with the United States. In the context of a political status analysis, the term "bilateral" refers to relations between two sovereign governments on the international plane of mutuality. The relationship between the U.S. federal government and the government instituted under the local constitution for Puerto Rico does not exist or operate on the plane of sovereign-to-sovereign mutuality. Rather, Puerto Rico is a political subdivision of the United States with no constitutionally defined sovereignty. The powers of government exercised locally derive from a federal law authorizing government by consent in local affairs only, unless those affairs are otherwise governed by federal law. The capacity of the commonwealth government created under the local constitution to exercise governmental powers in local affairs is like that of local government in the states of the union in regard to non-federal affairs at the local level. However, the sovereignty of the states is constitutionally defined and recognized, while the powers of the local government in Puerto Rico are defined by, and subject to alteration under, federal statutory law. Specifically, the reservation of sovereignty to the people of the states in matters not governed by federal law is constitutionally defined and permanently enshrined in the 10th Amendment. The states have sovereign power under the 10th Amendment to sue the federal government in federal court if federal actions infringe upon state sovereignty. Although federal powers have expanded over the years, when it concludes federal authorities have gone too far the U.S. Supreme Court upholds state sovereignty and nullifies federal measures found unconstitutional based on the 10th Amendment. In contrast, Article I, Section 2 of the local constitution is a reservation of the sovereignty residents of Puerto Rico are authorized to exercise through their local government with the permission of Congress. This reservation operates only to limit the powers of the local government. On its face and by its precise terms, Article I, Section 2 of the local constitution does not limit federal powers or operate as a reservation of sovereignty except as to local matters not otherwise governed by federal law. There is no reservation of sovereignty to the local government or the residents of the territory in any matter governed by federal law. Consistent with this territorial commonwealth arrangement for Puerto Rico, the U.S. Supreme Court upheld the local constitution’s unique provisions for filling vacancies in the local legislature in the 1982 case of Rodriguez v. PDP. That was because Congress had not otherwise provided for filling such vacancies by federal law. The result was that the matter was allowed to remain a purely local matter determined by local law. In contrast, the Supreme Court recently rejected a petition asking that it review and reverse the ruling of the First Circuit Court of Appeals in U.S. v. Acosta-Martinez. In that case, the Court of Appeals rejected the argument that the local constitution’s ban on capital punishment renders the federal death penalty law locally inapplicable. Citing its 1985 ruling confirming supremacy of federal law over a conflicting provision of the local constitution in U.S. v. Quinones, the court again confirmed that the constitution and laws of Puerto Rico prevail only to the extent a particular matter is not otherwise governed by federal law. It is misleading to describe the current status or the commonwealth system of local government as embodying a "bilateral" relationship, when Congress retains its plenary territorial clause power to unilaterally apply federal law in Puerto Rico. That power cannot be restricted by the constitution or laws of Puerto Rico, and once Congress acts on any issue it is no longer a local issue because it is governed by federal law. Thus, the local government exercises powers like those of a sovereign state over local issues only at the pleasure of Congress, and only as permitted under a local constitution authorized and approved by federal law. Although Congress made approval of the local constitution by local referendum a condition of its approval of the local 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. The result is that residual sovereignty is vested in Congress under the territorial clause of the federal constitution, not in the people of the territory. The inherent sovereignty of the people, who live in Puerto Rico, individually and as a body politic, will remain in abeyance as long as territorial status continues. Puerto Rico does not have a sphere of sovereignty beyond the reach of Congress, so there is no sovereign-to-sovereign relationship that can be referred to as bilateral. This less than fully self-governing condition will continue until the sovereignty of the people can be exercised to attain full enfranchisement and constitutionally vested sovereignty. That can be achieved through statehood, independence, or amendment of the U.S. Constitution to give full enfranchisement and constitutionally defined sovereignty to the U.S. citizens of the territory. It is within the limits of those three constitutional and legal alternatives for full enfranchisement that the will of the residents of Puerto Rico, and the nation as a whole, can and must be democratically determined in order to resolve the political status of Puerto Rico. Now let us turn to the term "compact" as used to describe the organic instruments of Puerto Rico’s relations with the United States. The so-called "compact" is not a "bilateral" transaction, but a matter of domestic statutory policy defining the steps taken jointly and separately by federal and local authorities in adopting a local constitution with approval of resident voters. In this connection, it is important to note that what is referred to as the "compact" addresses only the procedure for adoption of a local constitution. To be more specific, U.S. Public Law 81-600 does not address the legal or political status of Puerto Rico. The provisions of P.L. 81-600 authorizing a local constitution are not even included or codified in the Puerto Rico Federal Relations Act, which is actually just the Organic Act given a new name and modified to allow local self-government under a constitution. It is the authorization for a referendum on whether a local constitution should be adopted, and the steps required by Congress for that to occur, that is referred to in the controlling federal law (48 U.S.C. 731b) as being "in the nature of a compact". The reason it was "in the nature of a compact" is that it was jointly approved by Congress and the voters in the territory. It was not actually a compact in any binding legal or constitutional sense, because it did not create enforceable or vested rights. It is a statutory policy for federal and local approval of a duly constituted system of limited local government, and does not establish a constitutionally defined political status. That is why, consistent with P.L. 81-600, the federal law approving the local constitution (P.L. 82-447) did not refer to the constitution itself, or to the Puerto Rico Federal Relations Act, as a compact. Instead, P.L. 82-447 used the term "in the nature of a compact" only with respect to the procedural provisions of P.L. 81-600 authorizing adoption of a local constitution. This is important because the records of the Puerto Rico Constitutional Convention, as well as some local statutes and court decisions, appear to refer to the "compact" incorrectly as if that term applies to the constitution itself, or the Puerto Rico Federal Relations Act. On that basis, there has been an attempt to theorize that P.L. 81-600 was a government-to-government or sovereign-to-sovereign compact creating a legal right to a political status defined by the local constitution. The local constitution does not define a political status. There is simply no legal basis for the view that the so-called compact was a political status accord, when it was merely a procedural arrangement for approval of a local constitution. The question of political status was not addressed on the ballot in any of the three referendums conducted during the procedure for approving the local constitution. Thus, Article I, Section 1 of the local constitution does not define a sovereign political status emanating from the people through an act of self-determination recognized by U.S. and international law. Rather, Article I, Section 1 of the local constitution means that in the exercise of its authority over local affairs not otherwise governed by federal law, the local government’s powers emanate from the people who live and vote in Puerto Rico. Indeed, the record in both Congress and the U.N. makes it clear that the so-called compact was a political procedure to jointly approve establishment of local constitutional self-government, occurring within the scope of the specific statutory policy of Congress established through an exercise of U.S. sovereignty under P.L. 81-600. The purpose of that federal statutory policy was to demonstrate that adoption of a local constitution was something to which the residents of the territory gave their consent. The U.S. then relied upon local consent to the constitution as the basis for ending U.N. oversight of Puerto Rico’s status. This left final status resolution to the U.S. and the territory, as reflected in paragraph 9 of U.N. General Assembly Resolution 748(XIII), accepting the U.S. position. The record before Congress indicates the U.N. probably would not agree to that outcome today, but agreed to in 1953 before the U.N. adopted current standards for self-government and decolonization. Thus, adoption of the local constitution was not recognized under U.S. or international law as an act of self-determination as to the final or ultimate political status of Puerto Rico. Consequently, it is clear that the process through which the local constitution was adopted did not create a sovereign-to-sovereign political status pact. END OF PART 1 * * * In Part 2 of this interview, to be featured next week’s Herald, former Attorney General Dick Thornburgh answers the question: "Can the current relationship of "commonwealth" be enhanced so that Puerto Rico may have the authority to enter into trade and other agreements with foreign countries? What about membership in international organizations?"
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