“Autonomy” Is the Worst of Both Worlds for Puerto Rico, Part 1

By Howard Hills

First in a three-part series on “autonomous commonwealth” as a failed territorial regime in Puerto Rico 

What is the worse-case scenario for Puerto Rico?

The answer:

Long term exclusion of U.S. citizen population from participation and in political and economic life of the nation on an equal footing with states leads to:

• Stagnation of private sector economy
• Political and economic risk due to uncertainty of current and future status suppresses market driven (rather than government induced) private investment
• Fiscal insolvency of the “commonwealth” regime of territorial government
• Indefinite less than fully democratic national government limits democratic local home rule
• High rate of military service but little or no U.S. military presence in the territory
• Experiments and gimmicks to sustain dependency under federally established and controlled territorial regime fail
• Puerto Rico less able than poorer Caribbean island nations to harden infrastructure against tropical storms
• Chronic degradation in quality of life due to natural and man made disasters
• 120 years of interdependence makes equal rights of separate sovereignty, nationality and citizenship politically improbable and unrealistic

Welcome to the Commonwealth of Puerto Rico 2020.

That is one answer.

But there is an additional bullet point that should be at the end of the list, a bonus answer, if you will:

• Forced relocation to a state to secure equal rights and opportunities of U.S. citizens is path taken by those most motivated to achieve a better life.

Balzac citizenship

This final answer deserves amplification, because it actually was the answer given to the nation and Puerto Rico by the U.S. Supreme Court in 1922. Chief Justice Taft wrote the opinion of the court in the case of Balzac v. Puerto Rico. The Balzac ruling institutionalized Taft’s personal opposition to statehood for Puerto Rico. He viewed the Caribbean island as yet another off-shore territory he saw as unfit and undeserving of permanent union on an equal footing with states.

For Taft, the decision by Congress and the federal courts to put Alaska and Hawaii on the path to statehood was a mistake. In the case of those two non-contiguous western territories, the U.S. Supreme Court had ruled U.S. treaty law and federal territorial statutes conferring U.S. citizenship meant the U.S. Constitution applied in the continental territories that became states. That meant both Alaska and Hawaii were destined for statehood.

Puerto Rico, along with the Philippine Islands, had been acquired by treaty of annexation after liberation of those two Spanish colonies. Based on denial of U.S. citizenship to both Puerto Rico and the Philippines under 1900 territorial statutes, the U.S. Supreme Court ruled in 1901 that the Constitution did not apply as it had in every U.S. citizen populated territory since 1789.

In 1916 the U.S. Congress denied U.S. citizenship to the Philippines in an act declaring a national policy leading to independence. Months later in 1917, Congress granted U.S. citizenship in Puerto Rico. That conferred upon Puerto Rico’s body politic the same combination of naturalized and birthright citizenship as Alaska, Hawaii and 30 other territories that became states.

Logically, when Congress granted U.S. citizenship in 1917, the U.S. Supreme Court should have ruled that the Constitution applied as it did in Hawaii and Alaska. But that logic was thrown out the window when the question of Puerto Rico’s status was entrusted to the new Chief Justice, William Howard Taft. He was former Governor of the U.S. Territory of the Philippine Islands, during its bloody war against the U.S. for refusing to grant independence, and had very hard and fast views on overseas territorial relations.

Taft also had some political ideas and personal feelings about the off shore territories. He lost his bid for a second term as President, in part because of a scandal in his administration arising from undue Wall Street influence on mining and fishery permitting in Alaska by the U.S. Department of the Interior.

Accordingly, it was with singular resoluteness that Taft orchestrated the high court’s ruling that Congress could continue to govern Puerto Rico outside direct application of the U.S. Constitution, at least as it applied in all previous U.S. citizen populated territories. Instead, Congress could continue to determine the “civil rights and political status” of Americans in Puerto Rico by federal territorial laws, in the same manner as it would continue to do for non-citizens in the Philippines.

How could Puerto Rico gain equality?

So, the answer of Taft and the U.S. Supreme Court in the 1922 Balzac ruling was simple. If denial of application of the Constitution to a population U.S. citizens in Puerto Rico larger than that of at least 25 states was intolerable to the U.S. citizens of the territory…then migration to live in a state gave then the choice of equal rights of citizenship.

Taft’s answer could not have been more candid, or, in fact, brazen:

“It became the yearning of the Puerto Ricans to be American citizens and Congress gave them the boon…What additional rights did it give them? It enabled then to move into the continental United States…and enjoy every right of any other citizen.”

This is nothing less than a national policy of forced relocation for a subclass of citizenship denied equal rights in an invidiously discriminatory manner to which other U.S. citizens in identical circumstances in 32 other territories were not subjected.

The argument over whether Taft and the unanimous court that handed down Balzac were racist is sterile. The court has sanitized the Balzac ruling by justifying it on non-racial grounds in the modern era.

Forced relocation?

The real issue is whether any U.S. citizen population living within the borders of the nation can be required to relocate to achieve equal rights. The answer may seem at first yes, because the equality comes only with statehood.

But that begs the question of whether Congress can grant U.S. citizenship in a territory but not provide that territory with a mechanism for becoming a new state or part of an existing state. If the answer to that question is affirmative, then Justice Harlan’s dissent in the original 1901 case of Downes v. Bidwell becomes a self-fulfilling prophecy, and the U.S. stands as a colonial ruler over a legally institutionalized form of less than equal citizenship for which there is no remedy under American law.

What we are talking about here is failure to establish equal rights and opportunity to create the conditions of social, political and economic sustainability that states alone have under the U.S. Constitution. We are looking at nothing less than segregation of the residents of a conquered federally controlled territorial reservation from participation in the national political process, national economy and national culture to which they belong.

“Balzac citizenship” defined a subclass of “subjects” segregated from the nation, in a client state doomed to a standard of living and quality of life inferior to that of the states. The subjugated territorial condition has been aggravated by episodic socially and economically coerced mass exodus to the states, just as Taft no doubt anticipated but did not bother to be concerned with.