It is a great pleasure to be back at the Kennedy School to discuss a matter of tremendous importance for all American citizens, whether residing in Puerto Rico or not. It seems particularly appropriate to discuss this issue at one of the nation's leading schools of public policy. The issues presented by the question of Puerto Rico's political status are worthy of great debate and great study.
Today's symposium deals with "The Politics and Economics of Puerto Rico." Not being an expert in economics, I would like to talk with you about the unique situation Puerto Rico occupies in the Constitutional, legal and political structure of the United States. The United States Senate is considering legislation, similar to a bill passed by the House of Representatives, that would provide for an expression of the will of the Puerto Rican people about their own political status. I remain convinced that the United States Constitution did not envision that 3.8 million United States citizens would be ruled by Congress through the Territory Clause forever. One hundred years of political disempowerment is far too long. The contradictions of the current status, I suggest, must be resolved, and the key to that resolution must be an act of self-determination by the people of Puerto Rico.
I.
One of the principal reasons that I wanted to come here today is because I believe strongly in self-determination for people all over the world, and I believe most strongly in self-determination for 3.8 million of my fellow American citizens who are not fully enfranchised in the U.S. political system. However, the clarity of choices and transparency of process that are essential elements of self-determination are not fully in place for the people of Puerto Rico. There seems to be a number of myths or misunderstandings of the limitations placed on the nature of the relationship between Puerto Rico and the United States by the Constitution and practical political realities. The myths surround the search for some sort of a "superstatus" that would provide the best of all worlds to the people of Puerto Rico. It should be stated loudly and clearly that there is no superstatus. There are only three real choices for the residents of Puerto Rico: independence; statehood; and continued rule by Congress pursuant to the Territory Clause.
True self-determination must rest on an understanding of certain fundamental points. One initial and fundamental point that must be recognized is that the U.S. Constitution requires that an area within the territory of the United States that is not included in a state must necessarily be governed by or under the authority of Congress pursuant to the Territory Clause. U.S. Const., Art. IV, § 3, cl. 2. Another fundamental point that must be understood is that no current Congress can bind the hands of any future Congress. Thus, any decision reached about the governance of Puerto Rico made by the 105th Congress can be changed by the 106th Congress next year. Only the Constitution cannot be changed by Congress. The Constitution establishes a permanent relationship between the States of the Union and the federal government pursuant to the Tenth Amendment. These are essential points that must frame any discussion about the future of Puerto Rico's political status.
II.
On March 4 of this year, the House of Representatives voted to approve H.R. 856, the "United States - Puerto Rico Political Status Act." Now the ball is in the Senate's court, and the Senate is considering S. 472, a companion to the House bill. These bills authorize a meaningful and constitutionally sound expression of self-determination and would put Puerto Rico back on the track to complete the decolonization process that began in 1952. The House has acted. The Senate is considering its bill. the residents of Puerto Rico must also be prepared to act and to set aside the heated rhetoric used by some advocates of each status option. Self-determination requires that the people of Puerto Rico make choices from constitutionally-permitted and politically realistic options in a transparent and free election. the House and Senate bills present the three options that pass both constitutional muster and political reality: statehood, independence or continued federal rule under the Territory clause.
As we meet here today, the 3.8 million U.S. citizens residing in Puerto Rico remain disenfranchised in the federal political process. Internal self-government under a local constitution was authorized by Congress and approved by the residents in 1952, but federal law remains supreme in Puerto Rico. More than that, residents who must observe that supreme federal law have no voting representation in the Congress. Similarly, despite the fact that Puerto Ricans have served with valor in every war this century, they do not vote for their President and Commander-In-Chief.
I supported H.R. 856 and applaud the passage of that historic bill. Now, I urge the Senate to pass S. 472 and to join the House in helping to fully enfranchise the people of Puerto Rico. I believe these bills offer the best opportunity to remedy the deficiencies inherent in the status quo. Success in the Senate is far from assured, but we can all take a look back at the House action to see that success is possible and to see what the Senate can expect.
Last month's action marked the first time that self-determination for the people of Puerto Rico had ever been openly and thoroughly debated on the floor of either House of Congress. This historic debate was not pretty to be sure, but that is because it was for real. H.R. 856 was not passed on suspension of the rules or by unanimous consent like the 1990 House approved status bill for Puerto Rico.
This was a full-blown, live, real time debate that forced almost every member to make a conscious decision about offering Puerto Rico the option of statehood or independence, in addition to that of continuing the status quo.
This debate proved once again that Puerto Rico is special, but its uniqueness does not exempt Puerto Rico from the sometimes difficult choices required to achieve a permanent status in the United States political system.
III.
What were the results of that debate? For the first time a bill has been approved that includes constitutionally valid definitions of the three options available to Puerto Rico under the U.S. Constitution -- independence, statehood or continued U.S. rule under the Territory Clause. The agreement between Chairman Young and ranking Resource Committee member Miller gave those supporting permanent commonwealth status as much as the Constitution allows, maybe even a little more. Significantly, the bill reaffirmed Federal supremacy and confirmed the discretion of Congress under Article IX of the Treaty of Paris and the Territorial Clause to determine disposition of the status of Puerto Rico. In accordance with the non-self-executing commitments of the U.S. under U.N. charter, this disposition will include free expression by the people of Puerto Rico of their wishes respecting self-government.
The one-vote margin reflected the seriousness with which Congress took this matter. Incidentally, I am told that the admission of Texas as a state was also decided by a one vote margin in the Senate, which may have reflected a consistent concern in Congress since Texas had a much larger independence faction than Puerto Rico. In fact, even today Texas may have a larger independence faction than Puerto Rico!
In the House, the most aggressive English language proposal offered as an amendment was defeated, and the original Young bill concept of equal treatment of Puerto Rico on language issues with all the other states was approved. This confirms President Ronald Reagan's 1980 promise that if the people choose statehood their language and culture will be respected, as well as being protected by the 10th Amendment. The House also approved a policy statement that no matter what the ultimate status may be, promotion of English as a language of economic opportunity for Puerto Rico's young people should begin now.
It is noteworthy that the "nation-within-a-nation" theory of Puerto Rico as a free associated state and sovereign nation with a right to U.S. citizenship and guaranteed union in perpetuity was presented in a very comprehensive manner by Congressman Gutierrez, along with his interpretation of the Treaty of Paris. These theories of free association were overwhelmingly defeated.
IV.
Where do we go from here? Now the U.S. Senate and Government of Puerto Rico must either go forward with the process defined by H.R. 856 or come up with a better idea. While there are a few proposals which may seem like better ideas, they are not realistic and would probably result only in a further waste of time - which may be the real goal in some cases.
The proposal for Free Association or Associated Republic status with guaranteed U.S. nationality and citizenship and permanent union is a "have it both ways" concept that has failed since 1952 and cannot succeed under the U.S. Constitution. Whether it is called an "unalterable bilateral pact" or a "Treaty of Union," it must still fit within the three categories set forth in H.R. 856. Congress cannot, by statute, make a relationship between the United States and a territory a feature of the U.S. constitutional structure. There would have to be a constitutional amendment to create a new category of statehood to accommodate the theories of the supporters of permanent commonwealth. It will be significantly easier for congress to revert to the historical options of statehood or independence to resolve the status question permanently, including free association as a form of separate sovereignty, that it would be to try to pursue the "nation-within-a-nation" proposals.
The record in Congress supporting H.R. 856 includes repeated references to a July 28, 1994 U.S. Department of Justice legal opinion which, in my view, correctly states that Congress is not bound by the current relationship with Puerto Rico or the current status of the territory created under federal statute. With respect to the concept of a binding pact, "Treaty of Union," or free association with permanent union and U.S. citizenship, based on the "mutual consent" principle (which Congress understands as a discretionary policy, but some commonwealth supporters view as a nullification power), the Department of Justice memo addressed the Puerto Rico question as follows: The Department revisited this issue in the early 1990's in connection with the Puerto Rico Status Referendum Bill in light of Bowen v. Agencies Opposed to Social Security Entrapment, 477 U.S. 41 (1986), and concluded that there could not be an enforceable vested right in a political status; hence the mutual consent clauses were ineffective because they would not bind a future Congress.
Finally, it is worth noting that a recent ACLU report on H.R. 856 disagreed on some relatively technical matters regarding citizenship but accepted the fundamental point that the current U.S. citizenship in Puerto Rico is statutory, and that Congress could stop conferring U.S. citizenship for persons born in Puerto Rico at any time. No one expects that to happen in the foreseeable future, but that is not the point. The issue is whether the people of Puerto Rico want guaranteed U.S. citizenship for their children and grandchildren in perpetuity (which comes only with statehood), or whether permissive citizenship in the discretion of Congress is good enough. Where I disagree with the ACLU is in the suggestion that the class of persons with statutory U.S. citizenship based on birth in Puerto Rico is an ethnic or minority classification. To the contrary, this class is defined by disenfranchisement due to the status quo, and H.R. 856 is the solution, not the source of that problem.
In the end, the ACLU primarily argues only that if Puerto Rico chooses to become a separate nation, then those persons born in Puerto Rico who elect to retain U.S. statutory citizenship would retain certain limited rights to petition for U.S. citizenship on behalf of their children. The argument acknowledges that Congress has the authority to place limits on the class of derivative statutory citizens affected. Given U.S. immigration residency requirements, there is little comfort for the "nation-within-a-nation" advocates in the ACLU report. However, I am sure that will not prevent the report from being used to further try to confuse the status debate.
While I have already acknowledged that I am not an expert in economics, today's symposium compels me to restate a fundamental point -- there is an unbreakable link between political status and economics everywhere. This point is particularly clear in Puerto Rico. There are significant economic consequences to the continued failure to provide for self-determination. The recent study entitled "Puerto Rico: The Economic and Fiscal Dimensions" took note of a net capital outflow of more than $2.2 billion during the 1980's and early 1990's and concluded:
The Commonwealth of Puerto Rico's unresolved status as a U.S. territory creates uncertainty over "rules of the game" and an aura of instability which discourages U.S., foreign and local investment on the island.
This evidences just how high the stakes are for Puerto Rico in the effort to conclude the era of "uncertainty" by providing its residents with the opportunity to control their own destiny.
Last month I was in Hong Kong for my first post-handover meeting with officials appointed by the People Republic of China. As you know, that former British colony is now a part of China and governed under a theory of "one country, two systems" designed to preserve Hong Kong's unique characteristics. It is by no means clear that the "one country, two systems" model will work. But I suggest that the "one system, two countries" model suggested by some for Puerto Rico clearly cannot work - indeed, cannot even come into being under our present Constitution.
V.
In closing, I will simply remind you of the 1957 opinion of the U.S. Supreme Court in Reid v. Covert, where the Court sated that the Territory Clause of the U.S. Constitution was intended to enable Congress". . .to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions. . . ." (emphasis added).
The Supreme Court's reminder that rule under the Territory Clause is inherently and necessarily temporary underscores the promise made by the United States one hundred years ago when Puerto Rico fell under U.S. jurisdiction. At that time, Major General Nelson A. Miles, commanding officer of the U.S. forces that landed on Puerto Rico said:
We have not come to make war on the people of a country that for several centuries has been oppressed, but, on the contrary, to bring protection, not only to yourselves but to your property, to promote your prosperity, and to bestow upon you the immunities and blessings of the liberal institutions of our government.
One of the blessings of American institutions of government is self-determination. So the question is this: After 100 years, is Puerto Rico still a territory with "wholly dissimilar traditions and institutions" that should be ruled by Congress pursuant to the Territory Clause or has the time arrived to empower the people of Puerto Rico to express their desires between Constitutionally and politically acceptable options for their future relationship with the United States?
H.R. 856 represents a new paradigm, and if the Senate and the Government of Puerto Rico adopt that paradigm, the U.S. citizens of Puerto Rico will be empowered for the first time - not just in 100 years, or even 400 years, but for the first time ever in history - to take their destiny into their own hands. That does not mean Congress will not work its will on behalf of the nation before a status solution is achieved, but it does mean that the will of the people of Puerto Rico will have to be reckoned with by Congress for the first time in history.
We should all welcome that reckoning because I believe that, even if tested by Congress, the will of the people will be honored, and values underlying the principles of self-determination will be vindicated. And after 100 years, its about time.
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