“Confederacy” and “Commonwealth” in America: A Parallel History of Failed Sovereignty

American Confederacy, “Autonomous Associated State” and Puerto Rico’s “Commonwealth” Confederacy

What is there in common about failed “confederacy” defeated in America’s Civil War and the failed autonomist “commonwealth” party platform in territorial Puerto Rico?

Both of these separatist movements are examples of factions within a political subdivision of the U.S. seeking to seize national sovereignty from the central federalist government. Whether pursued in the name of confederacy or “bilateralism” (nation-to-nation relations) between “associated states,” both challenged national constitutional sovereignty and sought recognition of a sovereign status never achieved.

Even with populist support in political subdivisions controlled by factions with nationalist aspirations, separatist movements lack legitimacy without access to a duly-constituted and legally recognized process of democratic self-determination. The governing law of the sovereign nation state must permit the breakaway faction to define a new fully sovereign and independent national status. A local vote favoring separate national sovereignty can be ignored if not authorized by applicable national law.

Similarly, the leaders of both the southern states “confederacy” and the territorial “commonwealth” in Puerto Rico failed to tell the people truth about constitutional limits on separatism. The people were never informed that even if democratically popular, separatist control of a political subdivision governing regime must be exercised in conformity with applicable national laws.

The secessionist leaders in Richmond and the autonomist ideologues in San Juan never told their followers that asserting separate sovereignty without the means to legitimize and institutionalize nationhood was merely an attempt at usurpation of constitutional powers retained by the national government. Once a national government acquired sovereignty by informed consent of the governed the national government must consent to separation.

Unless a right to separate nationality is enabled through the existing constitutional order, political subdivisions are not vested with inherent power by unilateral action to establish separate nation-state sovereignty within a previously existing nation.

This was recognized when the international community turned to the U.S. Declaration of Independence and the principle of government by consent to establish universal principles for decolonization and democratization through self-determination under the U.N. Charter. As a result, U.N. self-determination standards recognize that sovereign means sovereign,and informed democratic consent means just that.

Accordingly, adoption of a national constitution by consent of the governed requires that any to change the political status of the people and the nation must be accomplished in accordance with national law.

For example, “free association” status is recognized by the U.N. as an intermediate alternative to integration in an existing nation or full national independence. To be duly constituted as a free associated nation-state both governments in the bilateral relationship must retain a full sovereign right to end the association in favor of independence. But in order to exercise that right each government must act through and in accordance with its own constitutional process for consent of the governed.

That is the matrix for historic nation-state models, national federalism and self-determination under applicable international and national constitutional processes. It is in that context separatism, anti-federalism and sovereign bilateralism movements within existing nations must be understood. A claimed “national reality” does not ensure a political subdivision in an existing nation can attain a sovereign bilateral status, especially without first attaining national independence through a recognized constitutional process.

American Anti-Federalism

In the American pre-Civil War era, the people of states that consented to national federalism understood ratification of the U.S. Constitution ceded some but not all sovereignty to the central government. The boundary line between federal and state sovereignty was shifting toward the central government and supremacy of national law.

This sparked anti-federalism leading to separatism in the southern states, seeking to reverse the cession of sovereignty through a process of secession. Separatist measures intended to nullify federal law were followed by the attempt to attain succession to nation-state sovereignty state by force of arms to end the “more perfect union” under the U.S. Constitution.

The states that joined in declaration of confederacy between aspiring sovereign nation-states were in a sense seeking to restore in a new form the Articles of Confederation model of multilateralism that had been replaced by centralized national federalism under the U.S. Constitution.
As discussed below, the endeavor of southern states to seize sovereign nationhood under a new confederation were opposed and defeated due to the more successful and prevailing measures of the union’s constitutional system of national federalism. The essence of U.S. federalism is its recognition of state sovereignty, limited only as enabled by consent of the governed to delegated national powers and supremacy of federal law.

Puerto Rico Separatism

In Puerto Rico, the autonomy movement that began under Spanish colonial rule was revived under American rule in the mid-20th century. The purpose was to promote and seek sovereign bilateralism under federal and territorial statutory law.

The goal of the autonomist Popular Democratic Party (PDP) was to gain and hold political power by combining limited rights of U.S. citizenship and other features of territorial status with limited rights of sovereign-like self-government. The PDP junta’s manifesto promised Puerto Rico would remain a “nation” culturally and ideologically, while also retaining the limited but beneficial U.S.citizenship Congress extended to the territory by statute.
The PDP promoted a narrative of dual allegiance to two countries, as if a bilateral confederation. It was called a “best of both worlds” regime, and given the label “commonwealth” in English. In Spanish the “commonwealth” name was translated as “associated nation-state.”

The autonomists promoted “commonwealth” as a form of gradually culminating separatism under federal and local territorial statutes, evolving into de facto “nationality” with capacity for permanent constitutional bilateralism. PDP promised to protect the Spanish language and cultural heritage of the Spanish colonial era, in order to resist undue U.S. influence leading to integration.

While reassuringly embracing the advantages of U.S. citizenship, the PDP opposed future statehood and intensified indoctrination in ideological theories of autonomist bilateralism in all sectors of civil society. That included public schools where use of English was ended whenever the PDP was in power under the “commonwealth” regime of territorial government created by Congress.

For decades the PDP promise of a “Puerto Rico national reality” successfully competed with the increasing popular statehood party faction for public support and political power. The autonomists promised “commonwealth” would “culminate” in virtual nationhood with features of statehood in “free associated nation-state” status.

Congress never agreed to that interpretation of “commonwealth,” and early progress under its ambiguous federal and local enabling statutes proved politically and economically unsustainable. The populist appeal of the autonomist movement was insufficient to produce majority support for the “commonwealth” regime. While independence support peaked at 5%,in local voting popular support for statehood reached 61% in 2012 and 97% in 2017.

By then the U.S. Supreme Court finally had ended all ambiguity and declared “commonwealth” a non-sovereign regime, existing only at the pleasure of Congress in the exercise of its power over territory under U.S. sovereignty but not in a state of the union. Having finally also borrowed far beyond its means to prop up the illusion that the PDP’s separatist agenda was economically viable, the “commonwealth” regime went bankrupt in 2016.

In 2017 the U.S. Congress seemed “suddenly” to recognize the “commonwealth” regime had too much autonomy and too little fiscal accountability, leading to $125 billion in unfunded obligations. Faced with a local regime creating spiraling federal liabilities, without any apologies to the PDP’s autonomist junta Congress summarily suspended local self-government in favor of a federal control board takeover.

As the federal control board named PROMESA was still wringing its hands trying to solve the austerity versus stimulus equation, Hurricane Maria devastated the political economy of Puerto Rico. Now the Congress must decide whether to rebuild the island based on the normative models of statehood or nationhood.

The alternative of once again ruling Puerto Rico indefinitely as a territory is manifestly suboptimal. It actually invites repetition of a history in which the people have been induced to forego rights attainable through statehood or nationhood, while beguiled by PDP false promises of rights to bilateral autonomy that do not exist in real world.

U.S. Civil War Case Study

As noted, the principle of government by consent articulated in the American Declaration of Independence is embodied in the U.S. Constitution. That keystone in the constitutional edifice of freedom from illiberalism in human affairs has been embraced by the United Nations as a transcendental and universal value.

At the same time, the constitutional order of nation states based on democratic self-determination and government by consent is also recognized under International law. Rule of law in duly constituted democracies is vital to human rights, freedom, justice and peace.

Therefore, if sovereignty is to be seized from a nation from within or without, it must either be enabled under the law of the nation(s) concerned, or taken by effective exercise of sovereign political power over the territory and population concerned. If sufficiently opposed, force of arms may or may not be determinative of the outcome.

The American Civil War is offered as a reminder of what is at stake.

The defeat of the Confederated States of America by force of arms established that consent of the people to statehood under the U.S. system of constitutional federalism had a binding effect. For it meant withdrawal from the union was allowed constitutionally only with consent of the federation of states, acting though federal government in accordance with its constitutional process.

In other words, a state or aspiring confederation of states could petition for secession from the union, but unilateral secession was not consistent with the principle that federal law was supreme. Of course, If the southern states had acted through their respective constitutional processes to ask separately or jointly for permission to secede, that would have conceded the federal government had the power to deny secession.

That made dissolution of the union by unilateral act of states aligned by unwillingness to accept the supremacy of federal law the necessary last resort for those states. That is why they declared themselves a confederacy. Doing so forced the federal government to treat the declaration of secession not as a legal abstraction or political symbolism, but as insurrection and unconstitutional rebellion.

Supremacy of law under the model for national federalism does not mean separation is impossible. It means that the nation must consent to it through the federal constitutional process.

The U.S. has recognized the right of Puerto Rico to independence and statehood, on terms approved by Congress and the majority of the voters. So Puerto Rico remains free to seek statehood or independence. The ease or difficulty in transition to either lies in the allocation of benefits and burdens that would accrue for the U.S. as the sovereign with the effective power of consent.

Independence would be easier than statehood, but that is where the consent of the people becomes most powerful. It resolves into a matter of whether Congress and the people can agree on mutually acceptable terms. If not, a unilateral declaration of either statehood or nationhood by the U.S. or Puerto Rico would put the territory in political status limbo.

What Puerto Rico can not do is retain U.S. citizenship but claim a right to dual nationality, dual allegiance, dual patriotism. Puerto Rico can not demand dual status as both domestic and separately national. The U.S. Constitution does not enable the federal government to create dual nationality or citizenship by operation of national law.

Like other features of confederacy, dualities of nation-state status and national citizenship are not compatible with the American system of constitutional federalism.

Over 600,000 people died to determine that principle.