During a congressional hearing in anticipation of Puerto Rico’s 1998 status vote, future Governor Anibal Acedevo-Vila objected to the description of “commonwealth” as it was to appear on the 1998 ballot.
The “Commonwealth” of Puerto Rico is, in legal terms, a territory of the United States. Consistent with this reality, the description offered on the 1998 ballot made it clear that the “commonwealth” status was simply being a territory belonging to the United States, or, as the Congressional Research Service has described the 1998 ballot option, “limited self government.”
At the time he testified, Acedevo-Vila was President of the Popular Democratic Party (PDP) of Puerto Rico, which is not affiliated with the U.S. Democratic party and also known informally as the “Commonwealth” party.
“Commonwealth status, the preferred choice of the Puerto Rican people since its establishment in 1952,” said Acedevo-Vila, “is pictured in dark colors and dismissed as a colonial status, unworthy of consideration….It being well known that the people of Puerto Rico want no part of independence and take proper pride in their American citizenship, the result is, of course, pre-ordained for statehood.”
Acedevo-Vila went on to present the image of “commonwealth” forged in the 1950’s as a special and unique relationship between Puerto Rico and the United States that had been intended as a starting point for an arrangement that could grow and change over time, subject to mutual agreement on the part of the federal and territorial governments, into a best-of-both-worlds relationship in which Puerto Rico would have guaranteed U.S. citizenship, authority to make treaties with other nations, full protection of the U.S. Constitution, comprehensive federal benefits, and the ability to cherry pick which federal laws actually apply to Puerto Rico.
Former Senator Jeff Bingaman (D-NM) would later jokingly call this arrangement “the free beer and barbecue option.” Former Congressman Jose Serrano termed it “a letter to Santa Claus.”
What did the “commonwealth” party have in mind?
Here’s a partial description of “commonwealth” that Acedevo-Vila offered at the 1997 hearing:
“(A) The new Commonwealth of Puerto Rico would be joined in a union with the United States that would be permanent and the relationship could only be altered by mutual consent[.]
(B) The United States citizenship of persons born in Puerto Rico would be guaranteed and secured as provided by the Fifth Amendment of the Constitution of the United States and equal to that of citizens born in the several states…..Residents of Puerto Rico would be entitled to receive benefits under Federal social programs equally with residents of the several States[.]
(C) [A] Special Constitutional Convention would submit proposals for the entry of Puerto Rico into international agreements and the exemption of Puerto Rico from specific Federal laws or provisions thereof[.]”
Neither Acevedo-Vila nor any other Puerto Rican leader claims that this is the current relationship of the United States with Puerto Rico. The Commonwealth party has, however, claimed over the years that this is the potential outcome of further negotiations under the “commonwealth” label, which was created in 1952 when Congress agreed to Puerto Rico’s local constitution and told the United Nations, in the midst of the Cold War, of its intention to end the colonial relationship between the United States and Puerto Rico.
The problem with “commonwealth”
The real problem with “commonwealth” is that it is not actually a political status at all. It is just a word in the official name of the Commonwealth of Puerto Rico, just as some states officially call themselves “commonwealths,” such as Pennsylvania, Massachusetts and Kentucky.
Puerto Rico sovereignty
Ambassador Fred M. Zeder, who signed the Compact of Association between the U.S. and the Federated States of Micronesia, clarified notions of decolonization and sovereignty in the 1997 hearing.
“[I]f the people of Puerto Rico desire a completely separate identity and existence apart from the U.S.—not just social and cultural distinctness but separation in the legal and political sense of another constitutional nationality like Cuba or the Philippines—it is necessary to complete the decolonization process begun in 1952 in favor of independence or free association,” he explained. “For just as the U. S. had to end the trusteeship before the world would fully recognize the status of the associated republics under the Compact of Free Association, international recognition of Puerto Rico as an independent or free associated nation should not be expected until and unless Congress exercises its Territorial Clause power in conjunction with an exercise by the President of the foreign policy power by approving as a treaty an agreement ending U.S. sovereignty, nationality and citizenship in Puerto Rico.”
“[I]n the case of a U.S. territory such as Puerto Rico which chooses separate sovereignty, it is clear for reasons discussed below that neither birth in the former U.S. territory, statutory U.S. citizenship based thereon due to birth in a U.S. territory, nor relationship to a person with such statutory citizenship will provide a basis for naturalization in the U.S. following establishment of separate sovereignty,” he continued. “If the people of Puerto Rico vote to establish separate Puerto Rican sovereignty, the procedures for transition to separate nationality will be determined by Congress and subject to approval by the people of Puerto Rico. All parties will be required to take into account, among other things, the international law of state succession. Based on U.S. and international practice, Congress presumably will provide for U.S. sovereignty, nationality and citizenship to be terminated in favor of separate Puerto Rican sovereignty, nationality and citizenship.”
U.S. citizenship
Having made clear that there was no best-of-both-worlds option possible, Zeder continued on the subject of citizenship: “[A] proposal that virtually 100 percent of the population of Puerto Rico could keep the current U.S. nationality and statutory citizenship status granted under the Treaty of Paris and the Territorial Clause, and at the same time also acquire separate Puerto Rican nationality and citizenship under a new government- to-government treaty relationship establishing separate sovereignty, is legally inconsistent and politically incompatible with separate sovereignty for Puerto Rico. The idea that under separate sovereignty the people of Puerto Rico would acquire a citizenship right superior to the current limited statutory citizenship—that is to say a guaranteed and enforceable right comparable to the 14th Amendment citizenship protected by the U.S. Constitution under the Afroyim case—is even more implausible. This would amount to an upgrade from the current statutory citizenship status of person born in Puerto Rico under 8 U.S.C. 1402, based on a vote by the people of Puerto Rico to terminate U.S. sovereignty in Puerto Rico in favor of separate sovereignty. As discussed below, there are political, legal and constitutional reasons why that simply is not going to happen under any circumstances.”
Laws and treaties
Ambassador Zeder went on to discuss the question of laws and treaties under Puerto Rican sovereignty: “Instead of completing the integration process through full incorporation and statehood, either independence or free association would ‘‘dis-integrate’’ Puerto Rico from the United States. This would terminate U.S. sovereignty, nationality and citizenship and end application of the U.S. Constitution in Puerto Rico…Under either independence or free association the U.S. and Puerto Rico could enter into treaties to define relations on a sovereign-to-sovereign basis. Free association as practiced by the U.S. is simply a form of independence in which two sovereign nations agree to a special close relationship that involves delegations of the sovereign powers of the associated to the United States in such areas as defense and other governmental functions to the extent both parties to the treaty-based relationship agree to continue such arrangements.”
As a territory, Puerto Rico cannot make treaties with foreign nations, nor reject federal laws. Zeder’s comments on this issue therefore focused on the free association option. “[F]ree association is a form of separate sovereignty that usually arises from the relationship between a colonial power and a people formerly in a colonial status who at least temporarily want close ties with the former colonial power for so long as both parties agree to the arrangements,” he explained. “There is no right on the part of Puerto Rico unilaterally to define its relationship with the United States.”
The discussion regarding free association was particularly relevant since the Commonwealth party passed a resolution, included in the documents for the hearing, in which they objected that “To divide the vote of those who support an autonomous relationship who the United States, it splits commonwealth from free association.”
Definitions
The Commonwealth Party’s resolution submitted to the House committee in 1997 also complained that the status bill “[d]efines free association in the same way as independence” and “[d]efines commonwealth as a classic colonial status.” Yet these definitions are in fact accurate. They reflected reality in 1997 and they still do today. Some members of the Commonwealth party have now gravitated towards “sovereign free association,” but the legal limits of the free association arrangement – including no guaranteed access to U.S. citizenship – have not changed. Puerto Rico can, under the U.S. Constitution, remain a territory, or it can become a state or an independent nation, perhaps with a Compact of Free Association, assuming Puerto Rican and Congressional leaders could achieve consensus on its terms.
This information may be helpful for voters to have before the upcoming Puerto Rico status vote in November. After all, Congress has been discussing it since at least 1997.
Updated with technical changes on October 3, 2024.
