Constitutional Assembly for Puerto Rico?

Puerto Rico held plebiscites on the Island’s political status in 1967, 1993, 1998, 2012, 2017, and 2020. Another plebiscite is coming up on November 5, 2024. Time magazine wrote that “One of MVC’s most important platform points involves the creation of a new constitutional assembly, which could redefine the future of Puerto Rico’s political status and bring an end to more than five centuries of colonialism. Such an assembly would provide Puerto Ricans with the opportunity to decide for themselves what the future of Puerto Rico looks like, freed from the constraints of the visions advanced by the traditional political parties.” Is a constitutional assembly a useful option for Puerto Rico?

The plebiscites

In 1967, “commonwealth” or territorial status won with 60% of the votes.  Commonwealth won again in 1993, with 48.6% to statehood’s 46.3%. In 1998, “none of the above” won with 50.3% of the vote. “Commonwealth” was not on the ballot that year, and the “commonwealth” party claimed that all the “none of the above” votes for actually for “commonwealth.” If so, then all the plebiscites in the 20th century voted for “commonwealth.”

What the voters meant by “commonwealth” was probably “enhanced commonwealth,” a fantasy option which has been rejected as unconstitutional by all three branches of the federal government. The federal government meant territory status when it accepted “commonwealth” on ballots.

In the 21st century, it became clear that “commonwealth” was a myth, or perhaps an intentional sham. It has not been on the ballots since.

In 2012, 2017, and 2020 — all the plebiscites during this century — statehood won.

Constitutional assembly

Time says that the MVC political party is calling for a “new” constitutional assembly. This is not that new. The “commonwealth” bills have included this idea for decades. Puerto Rico had a constitutional assembly to draft its constitution in 1950, and both independence options in The Puerto Rico Status Act include calls for constitutional conventions to draft constitutions for the Republic of Puerto Rico. This is what is usually meant by a constitutional convention or assembly.

But the various “self-determination” bills also called for constitutional assemblies. Here’s how the self-determination act of 2021, which was a slight update of previous such bills, described what the convention would do:

1. debate and draft definitions on self-determination options for Puerto Rico, which shall be outside the Territorial Clause of the United States Constitution;
2. draft a least one accompanying transition plan for each self-determination option; and
3. select and present to the people of Puerto Rico the self-determination options that will be included in the referendum

There are problems with this method. First, it does not limit the options for the ballot to choices which would be legal under the U.S. Constitution. Enhanced commonwealth, perhaps in multiple guises, would be back on the ballot, even though it cannot be implemented.

Second, it does not involve Congress at all. This is intentional, designed to allow for Puerto Rico voters the “opportunity to decide for themselves what the future of Puerto Rico looks like, freed from the constraints of the visions advanced by the traditional political parties.”.

The visions advanced by the traditional political parties are limited to the options which are possible under the U.S Constitution: namely, statehood, independence, or continuation as a territory. Since the description of the assembly specifies non-territorial options, the choices are statehood or independence.

What would be the effect of a constitutional convention?

Since the possible choices really only include statehood or independence (with or without a Compact of Free Association), what is the actual point of a constitutional convention? The effect would be to continue the lengthy process of trying to resolve the status of Puerto Rico.

The convention, as proposed by the self-determination act, would be a “semi-permanent body” which would have to submit reports every year on what they were doing. If they eventually came up with a slate of status options and held a plebiscite on these options, then they could send the voters’ choice to Congress. if Congress didn’t implement the choice, the law says, the convention could send them to the next Congress and keep trying.

It is clear that this is intended to be a multi-year process.

If statehood were on the ballot, and it won again, then the convention would submit the request for statehood to Congress. The results could be identical to the results of any plebiscite.

If independence were on the ballot and won, the convention could send independence to Congress for approval. In this highly unlikely scenario, Congress could give Puerto Rico independence, as they might following any plebiscite in which independence won.

If a non-territorial “commonwealth” fantasy were on the ballot, that could also be sent to Congress, but it would be impossible under the U.S,. Constitution and Puerto Rico would remain a territory.

In other words, more of the same.

The actual effect of a constitutional assembly would be to slow down the resolution of Puerto Rico’s political status. As Christina Ponsa-Kraus wrote in another article in Time Magazine, “Some propose that Puerto Rico should decide its own future in a constitutional convention. But a convention would not solve the problem that Congress, too, must act. Worse, by ignoring that fact and creating the false impression that Puerto Rico can decolonize itself, a convention would amount to an exercise in self-deception.”

The 2024 referendum is another opportunity to get the attention of Congress and move the political status of Puerto Rico higher on their list of priorities. For the first time, we have a compromise bill on Puerto Rico status agreed upon by Puerto Rican leaders from different parties, and it is under consideration in both houses of Congress. We are closer to accomplishing statehood than ever before. Please vote this year, vote for statehood, and make a clear statement to the U.S. Congress.