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"Foreign in a domestic sense" was the phrase used in 1901 by U.S. Supreme Court Justice Henry Brown in Downes v. Bidwell to describe Puerto Rico's relationship with the United States.1 The Insular Cases represented the first attempt by the U.S. government at defining that relationship, and in doing so, established Puerto Rico as an unincorporated territory of the union.1 From that moment forward, the territorial relationship has been continually reinforced and was protected by an eternity clause in the Puerto Rican Constitution of 1952.1 The historical context of this constitution is vital to understanding how this eternity clause came to be, and the nature of the current territorial relationship between the U.S. and Puerto Rico.
The conclusion of World War II brought a wave of decolonization that saw Western European powers grant independence to many of their former colonies.2 In tandem with this trend were the ideals of self-determination established in the Atlantic Charter, the inadequacies of Puerto Rico's two previous organic laws, the Foraker and Jones Acts, and the rising authoritarian tendencies in the Caribbean region embodied by Fulgencio Batista and Rafael Trujillo.2The combined effect of these forces compelled the U.S. Congress to enact Public Law 600, which allowed Puerto Rico to organize a government pursuant to their own constitution and established that the ensuing government must be republican in form and subject to a bill of rights.3
Following the approval of the draft constitution by public referendum in Puerto Rico, President Truman submitted it to the U.S. Congress which responded by passing Public Law 447.4 U.S. Congressional approval of the draft constitution was conditional to the removal of Sec.20 of the Bill of Rights, a provision inspired by the U.N. Declaration of Human Rights, and the addition of an eternity clause in Art.VII Sec. 3: "Any amendment or revision of this constitution shall be consistent with…the Constitution of the United States, with the Puerto Rican Federal Relations Act, and with Public Law 600…adopted in the nature of a compact."4 In analyzing the territorial relationship, it is important to distinguish between the enforceable legal rules that comprise its basic structure and the principles of that relationship, among which autonomy and subordination coexist and contradict each other.4
The autonomy of Puerto Rico stems from the fact that the Constitution of 1952 represented a transition toward a democracy with independent institutions. The excision from the Jones Act of the power of Congress to derogate laws in Puerto Rico, and the inclusion of the Governor's power to appoint judges to the Puerto Rican Supreme Court demonstrate this autonomy.3,4 Closely tied to that principle of autonomy is the compact theory, which argued that the relationship between Puerto Rico and the U.S. was based on mutual consent.4 The U.S. Congress offered Puerto Rico the ability to draft a constitution, and that offer was accepted by Puerto Ricans via the successful referendum of Public Law 600.4 This was the fundamental argument proposed by the U.S. when the U.N. General Assembly in 1953 removed Puerto Rico from the U.N. list of dependent territories.2,4
Complementary to the principle of autonomy is that of subordination. While there are informal limits to the 'plenary powers' vested in the U.S. Congress through the Territorial Clause, the supremacy of Congress over the government of Puerto Rico was proven during the 1950-1952 constitution-making process when it unilaterally omitted Sec.20 of the Bill of Rights and was protected by the inclusion of the eternity clause in Art.VII Sec.3.3 A more recent example of this principle in action is the Federal Oversight and Management Board established through PROMESA.4 While described as an entity within the territorial government, the board is appointed by the U.S. president and places significant limits on the power of the Puerto Rican executive and legislative branches to conduct an independent fiscal policy.4 The combined principles of subordination and autonomy demonstrate the central tension at the core of the territorial relationship: Puerto Ricans can be said to enjoy some form of political sovereignty, but Congress retains legal sovereignty over Puerto Rico.4 This inconsistency is further illustrated through the passive citizenship of Puerto Ricans, who can obtain U.S. Passports and are eligible for the draft but are not allowed to vote in presidential elections and only have one non-voting member in the U.S. House of Representatives.4,5
Implicit in the argument of compact theory is that the original constituent power is found in the U.S. Congress, which exercised it through the enactment of Public Law 600.4 The U.S. Congress' constituent power was further confirmed by Supreme Court Justice Elena Kagan's majority opinion in Commonwealth of Puerto Rico v. Sánchez Valle: "Puerto Rico could not have legally initiated the 1950 constitution-making process on its own".4,6 This begs the question: what would happen if Puerto Ricans decided to exercise their political sovereignty by calling a constituent convention and attempted to either reintroduce Sec.20 of the Bill of Rights or violate the eternity clause in Art.VII Sec.3? Would this action be constitutionally valid, and what does comparative constitutional law tell us about constitutional referendums and the contravention of eternity clauses?
Regarding constitutional validity, the primary concept needed to address this question is the basic structure doctrine, which originated from the decision of the Indian Supreme Court in Kesavananda v. State of Kerala.7 The idea behind the basic structure doctrine is that an amendment that alters the basic structure or identity of the constitution would in effect create a new constitution, and on that basis, it would be unconstitutional. The Puerto Rican Constitution of 1952 has two procedures of constitutional change: one to amend the constitution and another to revise it.3 However, the eternity clause added by Congress in Art.VII Sec.3 protects against amendments and revisions.3 Accordingly, any change to the constitutional text that touches on the provisions protected by the eternity clause, would seem to be ultra vires Art. VII.4 Such a change would alter the basic structure of the territorial relationship and would at a minimum return constituent authority to Puerto Rico.4 Despite its apparent illegality, in an extreme case, it could be brought forth by a universal declaration of independence (UDI) by the Puerto Rican legislature, producing a new constituent process and an ex-nihilo constitution.4 A UDI, like Kosovo's in 2008, would additionally present the U.S. with the dilemma of whether to deny Puerto Rico's right to self-determination, pursuant to Art.1 (2) of the U.N. Charter.4,8
The most relevant cases to examine within the comparative framework are those of Québec and Scotland. During the 1980s, a series of constitutional negotiations between Québec and the Canadian government demonstrated a constitutional paradox: the amendment formula that Québec objected to would have to be used to create the new amendment formula they sought.9 In conjunction with this, the Québéc government argued that because the patriation of the 1982 constitution was done without the consent of Québec, the 1995 referendum on 'sovereignty and partnership' was the only tool at their disposal to amend the constitution.9 This argument, however, would not hold in the case of Puerto Rico, because compact theory would maintain that there was consent established by the successful referendum on Public Law 600. In the case of Scotland, the arguments presented by the Scottish Constitutional Convention (SCC), unsurprisingly, were based on the principle of self-determination.9 However, rather than breaking with the uncodified constitution of the U.K., the SCC sought constitutional legitimacy by claiming that they were reaffirming the constitution.9 The SCC held that the U.K. constitution of a union was being violated by the ongoing process of centralization and Scotland was entitled to revise what they viewed as a contradiction of the Treaty of Union.9 Here again, Puerto Rico represents an exceptional case because of the successful referendum on the Constitution of 1952, and the public approval of the additional eternity clause in Art.VII Sec.3.6 The breach of an eternity clause requiring consistency with the U.S. Constitution cannot simultaneously reaffirm the U.S. Constitution, thus rendering the argument of constitutional reaffirmation irrelevant to the case of Puerto Rico.
While Puerto Rico today faces a myriad of challenges, the debate over the territorial relationship with the United States is undoubtedly the central question shaping Puerto Rican politics.10 The two main political parties in Puerto Rico, the PNP and the PPD, defend the statehood and commonwealth position respectively, and in the 70 years since the adoption of the Puerto Rican Constitution, there have been 6 referendums on the territorial status.11 During this period, the support for the commonwealth position has deteriorated, while the statehood and sovereignty positions have grown substantially.11 This progression indicates that the status quo position is increasingly ineffective in meeting the needs of the Puerto Rican people. The solution to the dilemma of the territorial relationship ultimately lies between Congress and the people of Puerto Rico, but the current situation, where approximately 45% of residents live below the federal poverty line, necessitates a solution that allows all Puerto Ricans to lead dignified lives.5
Acknowledgments
I would like to express my deepest appreciation to Dr. Justin Frosini, Dr. Joel Colón-Riós, Dr. Rafael Cox Alomar, and Mr. Antonio Weiss who generously provided their knowledge and expertise to this paper.
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