“Statehood best respects the sacrifices made by Puerto Ricans in the past century and reflects the gradual but significant integration of the island into American society.”
By Willie Santana (’14). Originally published in Tennessee Law, fall 2014.
When the United States invaded the Spanish-controlled island of Puerto Rico during the Spanish–American War of 1898, they were greeted with cheers of “¡Viva Puerto Rico Americano!” The invasion of the island was encouraged by the annexation movement that developed into the island’s modern movement toward statehood. The pro-annexation group believed that after the invasion, Puerto Rico would be on the path to becoming a state. It’s taken 116 years, but Puerto Rico is finally progressing toward statehood.
Prior to the twentieth century, territories followed a standard path to statehood. Most states followed the path created by the Northwest Ordinance of 1787, which established a three-stage process that concludes with admission to the union. The process starts with direct federal governance, followed by local governance with congressional supervision, and finally statehood. A handful of states followed the “Tennessee Plan,” where the territory itself actively pursues and demands statehood, rather than waiting for Congress to act.
Puerto Rico appeared to be on the path to statehood. In 1900, Congress passed an organizing law for Puerto Rico that mirrored the first phase of the Northwest Ordinance process. Meanwhile, the presidential election was fought on the issue of whether the Constitution “followed the flag.” William McKinley, who argued that the Constitution should not extend to the territories, won the election, and the Supreme Court essentially adopted the same idea in the Insular Cases.
The Insular Cases created the constitutional principle of unincorporated territories—those that cease to be foreign countries in the “international sense,” but remain foreign to the United States in the “domestic sense” and are, therefore, not on the path to statehood. The court feared “serious consequences” if the “savages” of these territories became full citizens and ruled that unless Congress incorporated the territories, placing them on the path to statehood, these territories could be subject to the supreme power of Congress forever.
Today, the Insular Cases continue to form the basis of decisions about Puerto Rico and its fellow territories—American Samoa, Guam, the Northern Mariana Islands, and the US Virgin Islands—but the Supreme Court has started to cast doubt on the cases’ continued applicability. The court noted in a recent case that the scope of the Insular Cases was limited to facilitating the “temporary” government of the territories and did not have wider applicability. In another case, the court went further by stating that it “may well be that over time the ties between the United States and any of its unincorporated territories strengthen in ways that are of constitutional significance.”
The ties between Puerto Rico and the United States have indeed strengthened in significant ways. Today, more Puerto Ricans reside in the mainland than in Puerto Rico. Supreme Court Justice Sonia Sotomayor is of Puerto Rican descent. And 400,000 Puerto Ricans have served with distinction in the US armed forces since the Spanish–American War. With Puerto Ricans in prominent, visible roles at all levels of American society, Puerto Ricans are no more foreign to the United States than are New Yorkers, Texans, or Hawaiians.
If the Insular Cases were intended to facilitate the “temporary” government of Puerto Rico, then, more than a century later, a permanent solution is needed. There are three choices: commonwealth, independence, or statehood.
The commonwealth option has lost favor both on the island and the mainland, and the island’s Commonwealth Party has proposed an “enhanced commonwealth” to replace it. Under the proposal, Puerto Ricans on the island would remain US citizens and Puerto Rico would assume sovereignty over its own internal and external affairs. The proposal would require a treaty of free association that would continue federal funding for programs on the island while reducing the administrative footprint there. The proposal is constitutionally suspect because its promises of sovereignty and continued birthright citizenship are incompatible. Remaining subject to the jurisdiction of the United States is necessary for birthright citizenship, but being separately sovereign is critical to achieving the proposal’s goals.
For the independence option, there’s precedent in Cuba and the Philippines, which were US territories that transitioned to nationhood. An independent Puerto Rico would be able to preserve its culture and identity, but it’s doubtful the island could support itself as an independent nation. Additionally, the Puerto Rican diaspora on the mainland is significant, and severing the communities would have wide-ranging sociocultural repercussions. Puerto Ricans also do not wish to lose their American citizenship. Unsurprisingly, Puerto Rican support for independence is very low. The island has voted on the question of status four times since 1967, and the most support that independence has been able to garner was 5.5 percent of the vote.
Thus, the remaining option is statehood. The idea of becoming a state has gained support in Puerto Rico since the first status vote. In the century since the island’s invasion, Puerto Ricans have integrated into American culture, and the institutions of American government have grown on the island. The local political organization is identical to those in the states, and Puerto Rico’s economy is integrated with that of the mainland. This high degree of sociopolitical integration over the past century makes a transition to statehood the most easily implemented of the
Statehood opposition both on the island and in the mainland is founded on shaky grounds. On the island, detractors fear losing Puerto Rico’s cultural identity, but they ignore that the states are already culturally distinct. The mainland critics focus largely on preserving the political balance of Congress, but they also ignore the key fact that Puerto Ricans on the island do not view politics from a Republican or Democrat point of view. Until recently, the two highest offices on the island were held by a Republican and a Democrat, both members of the Statehood Party. Attempting to predict how Puerto Ricans might vote as a state is futile.
Ninety-seven years have passed since Puerto Ricans joined the brotherhood of citizenship with their mainland counterparts. Four hundred thousand Puerto Ricans have served in the US military and have risen to the highest ranks of American society and leadership. Yet Puerto Ricans on the island remain sentenced to second-class citizenship. This situation is unfair to Puerto Ricans on the island who have no vote in a Congress with supreme power over their affairs. The situation is also unfair to Americans on the mainland who largely subsidize Puerto Rico’s government. Everyone involved is best served by a final resolution to the status of Puerto Rico, and that can only come through statehood or independence. Of those, statehood best respects the sacrifices made by Puerto Ricans in the past century and reflects the gradual but significant integration of the island into American society.