Should the US Constitution Apply to Puerto Rico?

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.

5 Comments

John A. DeJesus

Commonwealth is just a name, nothing else.
On the island its just a glorified title for what is obviously still a territory.
The three main ideological positions on the islands political future are that of an enhanced commonwealth, statehood, and independence.
Most of what happens in the political arena is between the proponents of statehood and the proposed enhanced commonwealth.
Because of a gridlock between the two positions, there will likely never be a majority vote that will start a process that can eventually end up in a congressional vote on statehood.
Mainland politics are a matter of dealing with those issues that affect the nation as a whole.
Island politics will always be limited to the supposed cure-all that a change in status might provide.

Before the current fiscal crisis, political ideology, local sovereignty and questions on the legality of the current status are all beside the point.
The true reality is that of basic economics where the lack of resources can’t create let alone sustain economic growth.
Local families deal with the possibility of sending family members abroad on a regular basis.
Those that are lucky enough to have jobs will generally stay, others that don’t know that the answer can be only a plane ticket away.

Reply
sean

It’s a tricky issue and one could argue that the US Supreme Court could rule against Puerto Rico in this case yet, at a later date, still uphold Puerto Rico’s limited sovereignty in another case.

Does a United States citizen lose their rights when in Puerto Rico? Are the citizens of Puerto Rico entitled to the same rights and protections of other residents of the United States. I think these are the more pertinent questions, which the Supreme Court needs to answer. If the answer is yes, Puerto Ricans are entitled to same rights as all other Americans then the federal government might not like the next question: Which rights can the federal government give Puerto Rico and which can they deny, or can they actually deny any?

Reply
Eugene Bermudez

The Jones-Shafroth Act of 1917 granted United States Citizenship to all the residents of Puerto Rico who were at that time US Nationals. Being a US citizen means all the protections of the United States constitution and US Federal law apply to Puerto Ricans. The effect of Jones-Shafroth Act 1917 was to incorporate Puerto into the United States and subject it to the first and second constitutions of the United States. Puerto Rico was also included in the Selective Service Act of 1917 and Puerto Ricans are obligated to help defend the United States.
Puerto Rico lacking formal statehood under our constitution means Puerto Ricans are subject to US Laws, US Taxation and US Conscription and have no voice laws and regulations that are enacted and must be followed. As American Citizens, Puerto Ricans have the right to vote for federal offices, however lacking statehood there is no way to exercise this given right under the US constitution. It is the worst of all worlds for Puerto Rico lacking true representation in our United States Federal system of governance and subject to all its rules.

Much of what Puerto Rico regarding independence and commonwealth status is legal fiction invented by the powers that be in Washington DC and San Juan for the betterment of their own selfish interests. Puerto Ricans are Americans denied participation in our system of government. Sadly Puerto Ricans are not alone WE deny participation in our Union to Americans living in Guam, US Virgin Islands, Northern Mariana Islands and Minor Outlying Islands. This is a travesty as Americans WE need to remedy this injustice to our fellow Americans in order to make a more perfect Union.

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