Congress & Colonialism in Puerto Rico

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On August 25, 2020, U.S. Representatives Nydia Velázquez and Alexandria Ocasio-Cortez introduced the Puerto Rico Self-Determination Act, a bill aimed at arriving at a solution to Puerto Rico’s current colonial status. It’s the first congressional bill ever to propose the mechanism of a status convention, whose members would be elected by Puerto Rico voters. 

On March 18, 2021, H.R. 2070, a revised version of the Puerto Rico Self-Determination Act, was submitted in the current Congress. Senator Bob Menendez introduced a similar bill in the Senate that same day. The new House bill raises a myriad of questions and issues. This article is the first of a series analyzing that bill and related matters. 

Power Asymmetry and Colonial Stasis

Beginning with the Foraker Act of 1900, three congressional statutes established the structure of the Puerto Rico local government. Besides allowing Puerto Rico voters to elect a House of Delegates, a Resident Commissioner to represent them in Congress, and some members of an Executive Council, the Foraker Act established the basic framework of American domination, including plenary federal legislative power over the archipelago and its people. 

The Jones Act of 1917 kept the governor as a presidential appointee, but allowed voters to elect the members of a bicameral legislature. It also featured a massive naturalization provision. American policymakers of that era didn’t care to hide their impetus for turning Puerto Ricans into American citizens by legislative fiat: tightening the grip over the colony. 

The Jones Act was amended in 1947 to allow Puerto Ricans to elect the governor. Act 600 of 1950 turned the statutory provisions of the Jones Act that defined American hegemony into the Federal Relations Act, and delegated to Puerto Ricans the devising of a new structure for its local government, subject to congressional approval. That structure, the Estado Libre Asociado, known in English as the Commonwealth of Puerto Rico, will turn 70 in 2022.

The so-called commonwealth status perpetuated colonial rule over Puerto Rico. Congress is still the sovereign, as it has been since the Treaty of Paris of 1898. In the 2016 Sanchez Valle decision, the U.S. Supreme Court held that Congress exerts plenary power over the territory. The commonwealth government derives, said the Court, not from popular sovereignty, but from Congress, which is the ultimate source of that government’s authority.

In a 2017 report, the Congressional Research Service affirmed that, “if Congress chose to alter Puerto Rico’s political status, it could do so through statute. Ultimately, the Territory Clause of the U.S. Constitution grants Congress broad discretion over Puerto Rico.” 

The Puerto Rican population has never been in a state of rebellion. Rather, it has mostly been in perpetual resignation, and even acquiescence, to their subordination—albeit with a constant seeking of attention from the U.S. government. The demand for attention has not been joined by effective means, real or imagined, to turn discontent into change. In that more-than-centenary scenario, the powers that be in the dominant nation have had no reason to end the colonial state of affairs.

Power asymmetry yields inertia. Since domination over Puerto Rico has never been a problem for the United States, no solution to colonialism has ever come from the American government.

Colonialism, a variant of power as domination, has not been altered by 120 years of dashed expectations. Coming from a worldview of powerlessness, the main tactic displayed by the Puerto Rican people and politicians has been claiming decolonization—or, more modestly, additional governing powers—by invoking the moral and democratic principles on which the American polity is supposedly built. That has never worked. 

A Convention and a Congressional Commission

The main purpose of the bill is to “recognize the right of the People of Puerto Rico to call a status convention through which the people would exercise their natural right to self-determination, and to establish a mechanism for congressional consideration of such decision.” According to the bill, the status convention would provide “a deliberative, comprehensive, and uninterrupted space of dialogue that can define the future of Puerto Rico.” 

The status convention will be “constituted by a number of delegates to be determined in accordance to legislation approved by the Commonwealth of Puerto Rico, for the purpose of proposing to the people of Puerto Rico a self-determination option.” The delegates shall be “elected by Puerto Rican votes.” The convention shall be “a semipermanent body that is dissolved only when the United States ratifies a self-determination option presented to Congress by the status convention.” 

The bill also proposes creating a Congressional Bilateral Negotiating Commission. Once elected, the delegates to the convention, in consultation with the Commission, will “debate and draft definitions on self-determination options for Puerto Rico, which shall be outside the Territorial Clause of the United States Constitution; draft accompanying transition plans for each self-determination option; and choose a self-determination option (and its accompanying transition plan) to present to the people of Puerto Rico through a referendum vote held in Puerto Rico.”

The tasks of the Commission include providing “advice and consultation” to the delegates of the status convention. The Commission would have eleven members: four U.S. senators, four U.S. representatives, the Puerto Rico Resident Commissioner (who is the sole representative of Puerto Rico in Congress, with voice but no voting rights), and one member each from the U.S. Department of Justice and the Department of the Interior.

In providing advice and consultation to the status convention, the Commission shall make recommendations as to the self-determination options on constitutional issues and policies related to culture, language, taxes, U.S. citizenship, and provide technical assistance and constitutional advice to the Puerto Rico status convention. 

Moreover, it will have “the authority to study, make findings, and develop recommendations regarding the different self-determination options on constitutional issues and policies related to culture, language, the judicial and public education systems, taxes, the United States citizenship, and provide technical assistance and constitutional advice to the delegates throughout the duration” of the status convention.

Once the delegates to the convention choose self-determination options, and concomitant transition plans, a referendum vote by residents of Puerto Rico will be held. Afterwards, Congress may “approve a joint resolution to ratify the self-determination option approved in that referendum vote.” Moreover, “if the Congress adjourns sine die before acting on the self-determination option, the Puerto Rico status convention may meet again and send or resend a self-determination option” to Congress.

Some of the Obstacles

To members of Congress, Puerto Rico and Puerto Ricans have always been invisible. That has been the default position for more than 120 years. Senators and House representatives, dead and alive, have never been inclined to become aware of the realities and consequences of perpetual American domination over Puerto Rico. They do have the resources to receive briefings and reports on the matter, which can hardly substitute for organic awareness and deep understanding.

The federal government’s studies and reports about Puerto Rico—including those by the Congressional Research Service—touch on the legal, “constitutional” issues, and the policy implications of keeping Puerto Rico as a colony or reforming the current state of affairs. From the Puerto Rican perspective, however, those aspects are the proverbial tip of the iceberg.

The historical indifference and ignorance of most members of Congress pale in comparison with a more insidious and harmful obliviousness, the kind that makes humans deem themselves individually and culturally superior to other humans and peoples. In the United States, that ignorance is founded on notions of exceptionalism, as well as national and “racial” preeminence. 

Racist or racialized otherness is a mark of ignorance indeed, and has always been an important feature of the outlook of most American members of Congress and policymakers. That worldview is the outcome and manifestation of a culture with intractable maladies. For Puerto Ricans, the tutelage of Congress has been, and will continue to be, an obstacle to the attainment of delayed justice, and of a shot at prosperity. 

The other hurdle is American capitalism, which in Puerto Rico has always meant exploitation at the service of profits for a few Americans, and fewer Puerto Ricans at the top of the pecking order. As in the 50 states, capitalism has yielded a consumeristic, solipsistic ethos that nullifies all attempts toward shifting to alternative worldviews and praxes—those more attuned to sustainable development, community ties, social solidarity, and cultural depth and creativity. 

Most of that will have to be the subject of future articles. In the next ones, however, I will instead examine some of the concepts on which H.R. 2070 relies, including self-determination, self-determination options, and a status convention.


Featured image: Ricardo Arduengo/AFP/Getty Images

Roberto Ariel Fernández is the author of six law journal articles about constitutional issues, including the Puerto Rican colonial history. His 2004 book, 'El constitucionalismo y la encerrona colonial de Puerto Rico,' can be found at the libraries of Princeton and Yale.

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