The Atlantic needs to find out if Garrett Epps has any axe to grind on the Puerto Rico status issue that he reports on prominently in his article “Can the Constitution Govern America’s Sprawling Empire?” One even wonders if Epps has a hidden agenda to promote the ideology of the political party in Puerto Rico that uses the term “commonwealth” to oppose changing the current political status of the territory.
It is not just that this obviously gifted writer got it wrong by stating that the term “commonwealth” gives Puerto Rico a status different than other territories. In his lead-caption and narrative that follows Epps repeats use of the word “commonwealth” as if it is a one of a kind, unique status different from that of smaller island territories he refers to as “insular areas.” The appearance of some ulterior motive is reinforced when Epps lists the other territories, including Guam, the Virgin Islands and American Samoa, but oddly “forgets” to list the Northern Mariana Islands. Could that be because the NMI also is a “commonwealth” just like Puerto Rico, which would detract from the idea the “commonwealth” is a special status only for Puerto Rico?
Epps is too smart to just coincidently omit the other existing “commonwealth” from his list of territories. He clearly knows those in Puerto Rico who oppose statehood or independence – because their interests are better served by the status quo – claim that the form of “commonwealth” that the anti-statehood party envisions is better than statehood or nationhood. Yet, the Northern Marianas “commonwealth covenant” with the U.S. is far more advanced in defining local rights and powers than Puerto Rico’s failed “commonwealth compact.” Failure to disclose these and other known facts about “commonwealth” is inexcusable.
That’s strike one for Epps.
Epps also makes another glaringly misleading argument about possible outcomes of a U.S. Supreme Court ruling in a pending case disputing Puerto Rico’s sovereign power to bring a criminal case against a person already tried in federal court. Epps argues that if the high court rules Puerto Rico has no separate sovereignty, like the states of the union do, then that somehow would be a finding by the court “against” Puerto Rico. But the case is a challenge by the current Governor of the territory seeking to overturn a ruling of the Supreme Court in the territory that Puerto Rico is not a separate sovereign, since, after all, it was created by Congress not the Constitution. So a ruling upholding the Puerto Rico Supreme Court may be a ruling against the Governor, but it would be a ruling for Puerto Rico, since the Puerto Rico Supreme Court, not the Governor, has the last word under the local constitution on what the law of the territory means.
Misrepresenting the stakes in the court case is strike two.
That court case is about whether Puerto Rico should be able to prosecute a person in the territorial criminal process who was already convicted or acquitted in a federal criminal case for the same crime. Contrary to what Epps writes, if the U.S. high court rules that Puerto Rico can prosecute it will not mean the “commonwealth” is sovereign, but may be treated “like a sovereign.” And Epps is also wrong in stating that a ruling which denies Puerto Rico power to act as a separate sovereign in criminal cases means its status will be decided by a “foreign” court.
Instead, the U.S. Supreme court simply will decide whether the Puerto Rico Supreme Court correctly ruled that the territory should not be treated like a sovereign state of the union for double jeopardy purposes in criminal cases. That is the most logical outcome since the “commonwealth” regime of territorial government was created by Congress under its power over territories. That means “commonwealth” is not a separate sovereign government that should be allowed to bring a criminal case independent of federal prosecution.
That’s strike three, Epps is out!
Epps may be able to fool people who know little or nothing about territorial law, but anyone who studies the topic as much as he has knows Puerto Rico’s “commonwealth” system of local government is not a separate sovereign from Congress in any general sense. His attempt to describe the political subdivisions of the U.S. as a fragmented empire to give Puerto Rico cover for asserting “sovereignty” falls far short of plausible historical accuracy.
The only question unanswered is why he would write this article. It is true the federal courts need to sort out the legacy of American imperialism and the removal of native tribes from the east to the west. However, claiming “commonwealth” is an alternative to the territorial status Puerto Rico shares with other territories, as well as statehood or nationhood, is too pointedly misleading to make it appear an innocent mistake.