Puerto Rico’s “Citizenship” Schism

Recent pronouncements regarding the nature of U.S. citizenship now and in the future require a fresh look at the issue of “citizenship” in the context of Puerto Rico’s political status debate.

Impact of Political Status on Citizenship

Residents of Puerto Rico who want statehood know that is the only status with fully equal rights of U.S. citizenship under the U.S. Constitution. People in the territory who are not sure about statehood still claim to “cherish” U.S. citizenship with limited rights under federal territorial statues, without aspiring to constitutionally defined fully equal citizenship rights.

Currently, the “U.S. Citizenship” that Congress has permitted under federal territorial law does not allow representation, consent of the governed or equal rights of citizenship guaranteed in the states. Still, the status of “U.S. citizenship” under territorial law is recognized in the territorial constitution of 1952 as a “determining factor” in the democratic political order of the island.

U.S. citizenship is not really U.S. citizenship unless it at least includes the potential if not the promise of fully equal U.S. citizenship. To “cherish” something called “U.S. citizenship” but not aspire to fully equal rights of that citizenship arguably in one sense at least is a form of ideological schizophrenia, claiming one identity when who and what you truly are is something very different.

To sustain collective denial of Puerto Rico’s split personality, the shrinking faction that opposes statehood insists local residents can retain “U.S. citizenship” in perpetuity without admission as a State of the Union. Some anti-statehood leaders claim that as long as Puerto Rico remains a U.S. territory – with or without enhanced autonomy – the same “U.S. citizenship” granted under federal territorial statutes since 1917 will continue for future generations.

However, if that is true it is only as a matter policy, not law. Legally speaking, the U.S. Congress could terminate both future citizenship at birth in Puerto Rico and citizenship for the children whose parents acquired citizenship during the territorial period.

Even supporters of independence, with or without a treaty of close alliance known as “free association,” argue that future “U.S. citizenship can be negotiated.” Yet, for a sovereign nation of Puerto Rico any “dual nationality” scheme would be a contradiction of 228 years of U.S. territorial law and policy.

The U.S. granted U.S. citizenship to formerly foreign non-citizens in several territories acquired in the Louisiana Purchase, as well as California, New Mexico, Alaska, and Hawaii. Each became a state based on citizenship.

The Philippines was denied citizenship in 1916 under a U.S. Congressional policy mandating independence. Similarly, non-citizens in the free associated states of the Pacific were offered U.S. citizenship and territorial status, but chose separate sovereignty and in so doing lost the chance to become U.S. citizens.

Some observers look at the free association status between New Zealand and the Cook Islands, which allows a form of dual nationality. This isn’t possible for Puerto Rico because the U.S. Constitution — unlike New Zealand’s —  includes a federal power-sharing structure for allocation of political rights and power to citizens in states that retain sovereignty over non-federal matters.

Even in New Zealand’s highly adaptable legal and political framework, the abstraction of transnational sovereignty and citizenship has not resulted in a political order with stable conditions of sovereignty, rights of citizenship, political equity, autonomy and cultural identity. The encumbrance of the right of independence by trans-nationality has not been resolved either.

That is why even pro-nationalist legal scholars acknowledge the “predominant” view of federal territorial and citizenship law experts is that constitutional equality follows not the U.S. flag but rather U.S. citizenship. But if Congress grants citizenship only to deny the promise of equality, that triggers dissociation between citizenship and the U.S. Constitution manifested by Puerto Rico’s demand for U.S. national citizenship under federal territorial law without full constitutional equality.

That schism between national citizenship and nationality citizenship rights can be bridged only through sovereign nationhood or statehood. If the people choose nationhood, once Puerto Rico is sovereign with its own citizenship under a national constitution that is supreme law, dual allegiance will not be sustainable. No matter how equitable in theory, dual citizenship would be inconsistent with the right of independent sovereignty and independence.

That means in 2017 the real status options include remaining a territory and seeking “autonomy” with some but not all rights of citizens in a state and citizens of a foreign nation. That status model does not ‘decolonize” legally, and is acceptable even to its supporters only if it culminates in a non-territorial confederacy with veto power over federal law.

That “enhanced commonwealth” proposal has been rejected by Congress, the U.S. Department of Justice, and the federal courts since it was first proposed 67 years ago. While the federal Department of Justice recently insisted that continued territory status must be included on any plebiscite ballot listing all legal status options, the U.S. Attorney General’s Office rejected any version of “enhanced commonwealth” as a ballot option.

The other two choices are to seek sovereign nationhood or admission as a State of the Union. An up or down vote on either would be a legitimate act of self-determination as well, but all three options have different impacts on citizenship that must be understood.

The Real Meaning of Citizenship in Puerto Rico

Another status vote approaches amid significant confusion in legal understanding of actual choices at the federal and local level. Citizenship law and policy is at the heart of that confusion.

It is time to stop and ask some painful but necessary questions about exactly what it is that the people of Puerto Rico “cherish” about “U.S. citizenship” granted under federal territorial law. Is the “U.S. citizenship” granted to Puerto Rico during the territorial period really U.S. citizenship?

Or, is it actually a territorial form of U.S. nationality with the potential for real U.S. citizenship if the people demand the equal rights that come only with citizenship of a State of the union? For the one legal question answered clearly by the U.S. Supreme Court in the 2016 case of Puerto Rico v. Sanchez Valle is that equal citizenship rights can not be conferred in a territory by a federal territorial statute.

Specifically, Congress has the power to confer equality in a territory through a statehood admissions act, but equal rights to national birthrights citizenship and consent of the governed through voting rights and representation can not be conferred by a statutory exercise of Congressional power over territories. That goes double for creation of a binding right to veto federal territorial law by withholding “mutual consent.”

Again, if we step back it becomes clear that today the “U.S. citizenship” granted Puerto Rico by statute is not equal to full U.S. citizenship in a State of the Union. So it is not really full U.S. national citizenship as defined by the U.S. Constitution for the people of the States.

Rather, the “U.S. citizenship” in Puerto Rico is actually a form of territorial citizenship without the rights of U.S. citizens that enable the people of the States to give consent to the national laws under which they live.

That means “U.S. citizens” in Puerto Rico have the same status and rights when residing in the territory of “U.S. nationals” in territories where Congress has not granted “U.S. citizenship.” That is what the U.S. Supreme Court decided in the 1904 case of Gonzalez v. Williams, holding that people in “unincorporated” territories where Congress has not granted citizenship and incorporation with the promises of equality under the Constitution through statehood are “under the national protection” of the U.S., or, “nationals,” but not U.S. citizens.

Currently, American Samoa is the only territory in which Congress has not granted “U.S. citizenship” under territorial law. However, the U.S. nationals of American Samoa can easily and quickly become fully equal U.S. citizens under the Constitution when they move to a State and apply for it.

The only difference for Puerto Rico and other unincorporated territories with “U.S. citizens” is that there is no need to apply for citizenship the first time coming to reside in a State. In contrast, U.S. nationals from American Samoa do have to apply in a routine and timely way to enjoy full and equal U.S. citizenship in any State for life just like people form Puerto Rico.

What all this means is that “U.S. citizens” in Puerto Rico and “U.S. nationals” in American Samoa have the same less than equal status and political rights when residing in any U.S. territory. Only when they reside in a State as national citizens based on birth in a territory do the national and citizens from the territories acquire equal rights of national citizenship.

History of Citizenship Without Equality

In 1901 the U.S. Supreme Court ruled that Congress can govern non-citizens in “unincorporated” territories outside the U.S. Constitution’s reach and direct application.

In 1917 Congress gave U.S. citizenship to all persons born in Puerto Rico, at which time the U.S. Supreme Court was expected to rule that citizenship meant incorporation with the promise of equal rights through eventual statehood. That is how the court had ruled in the case of Alaska and Hawaii.

In 1922, however, the U.S. Supreme Court ruled in Balzac v. Puerto Rico that Congress could continue to rule U.S. citizens in Puerto Rico in the same manner as non-citizens in the Commonwealth of the Philippines during its transition for territory to sovereign independent nationhood.

The Balzac ruling meant Puerto Rico was the first U.S citizen populated territory not “incorporated” and governed by Congress under the Constitution.

Instead, even after acquiring “citizenship” Puerto Rico was denied equal rights of citizenship because the Constitution was deemed by the court not to apply directly as long as the territory was still “unincorporated.”

The federal government thus denied that the U.S. Constitution applies to non-citizens in unincorporated territories, and then denied incorporation in a territory with U.S. citizens because the Constitution does not apply. Statehood is the solution.