The Constitution and the Commonwealth

The “commonwealth” party in Puerto Rico is trying to salvage the idea of the enhanced or perfected commonwealth, which has been rejected by every branch of the federal government, most recently by the Department of Justice, which said. “The Constitution limits Puerto Rico to three constitutional choices: the current territorial status, statehood, or independence…In other words, there is no constitutionally permissible status ‘outside of the Territorial Clause’ other than statehood or independence (including free-association agreements).”

HR 2070 is an effort to revive the discredited idea of enhanced commonwealth.

One way supporters are trying to do this is by mixing up the idea of commonwealth with the idea of Free Associated State. After all, the Northern Mariana Islands are a commonwealth with a compact of free association.

Don’t forget that Kentucky is a commonwealth which is also a state. The word “commonwealth” has no legal meaning in this case.

Confusion about “commonwealth”

People get confused about the idea of a commonwealth in the U.S. because our use of the word is different from the use in some other countries. For example, the Cook Islands and New Zealand have an association with common citizenship which they call “Commonwealth”. They can do that under their constitution. In contrast, national citizenship in the U.S. is defined under the the federal constitution and laws, and the rights of national citizenship (including voting rights) are exercised through state citizenship. The U.S. has never created dual citizenship with a other nation by operation of U.S. law, and will not do so in a free association treaty with Puerto Rico, either.

Another problem with the idea of mass dual citizenship is that it would perpetuate rather than end the current problem under territorial “commonwealth” of inferior and less than equal U.S. citizenship rights for residents of the islands compared to citizenship in the states of the union. Citizens of the Free Associated State of Puerto Rico would not have the ability to vote in U.S. presidential elections, even if they were citizens of the United States.

Additionally, as U.S. Attorney General Thornburgh pointed out in a U.S. Senate hearing, making the entire population of another nation citizens of the U.S. would defeat and make a mockery of the very idea of a separate sovereign country. Thornburgh pointed out that among other things the U.S. would then retain a sovereign interest in the population and internal affairs of another nation that would be closer to  a territorial and even colonial status than free association between two sovereign governments.

Forget mutual agreement

Puerto Rico can declare independence and negotiate a free association treaty with the United States. That treaty might include some unique features, as the “commonwealth” party hopes. But the fundamental features of the free association political status model, as quite clearly defined by applicable U.N. resolutions and embodied in the compacts with the three FAS in the Pacific islands, would have to be part of any free association arrangement with Puerto Rico.

That includes the right of either government party to the association to end the arrangement unilaterally — that is, without the other side having to agree. Without that feature, the association is not “free” at all.

Under the U.S. Constitution, sovereignty limited by supremacy of federal law and common citizenship rights is called statehood. That defines the American system of constitutional federalism among the states of the union. The U.S. can govern its territories and conduct relations with other countries, including free associated states, but those relationships are not like the relationships of the states with one another or with the federal government.

There is nothing “in between” a State of the Union and a country. There is no “best of both worlds.” There are states, there are territories, and there are countries. The U.S. Constitution doesn’t recognize other relationships.

A myth and a lie

All political status models, theories and formulas proposing that a sovereign nation of Puerto Rico can be converted by Congress into a statutorily defined new and sui generis form of U.S. statehood, with dual citizenship but not equal national and state citizenship rights, based on a two-state bilateral compact, unalterable except by mutual consent, the latter feature supposedly compensating for the lack of equal voting rights and government by consent enjoyed in the states of the union, always was and always will be a political myth. When a myth is perpetuated even though it is known to be false, that is called a lie.

The “commonwealth” myth long ago became a lie that has been used to create the illusion of political rights that don’t exist, thereby preventing the U.S. citizens of Puerto Rico from seeking the rights that do exist within the reach of the people through statehood, or separate nationhood. That is a tragedy of democracy under the failed territorial law and policy of the U.S. since 1950, which was made possible by and is directly attributable to the 1922 decision of the U.S. Supreme Court in the case of Balzac v. Puerto Rico.

That ruling arbitrarily, irrationally, discriminatorily and therefore unconstitutionally held Congress can govern U.S. citizens in Puerto Rico in the same manner as non-citizens in unincorporated territories as defined by the Insular Cases. That ruling was is irreconcilable with the same court’s holding that the Insular Cases only applied to territories in which U.S. citizenship had not been conferred by Congress. The Balzac ruling was also contrary to the court’s conclusions in the Alaska and Hawaii cases that citizenship meant incorporation and application of the U.S. Constitution, consistent with the Northwest Ordinance status model leading to eventual statehood.

It’s time to give up that lie. Tell your representatives that you are ready to welcome Puerto Rico as the 51st state. Tell your friends and family in Puerto Rico that free association is not the same thing as “enhanced commonwealth.”